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Legal Profession
University of Connecticut School of Law
Sicklick, Jay Evan

I.                    Law, Ethics and the Adversary System
A.      Spaulding v. Zimmerman
1.     Facts: Spaulding (minor) was a passenger in Δ’s car when he got into an accident. Π is examined by Δ’s doctor; they find he has a life threatening heart condition that may have been caused by the accident. Neither doctor nor lawyer tells Π. Π’s lawyer did not request discovery of doctor’s report. Case was settled, and because Π was a minor, settlement receives court approval. Two years later, Π finds aneurism and has surgery. He also discovers it was caused by the accident.
2.     TC vacated the settlement saying Δ’s lawyers were required to disclose aneurism to the court – failure to do so amounted to a fraudulent concealment
3.     Lawyers do not have to volunteer facts to their adversaries
B.      The Adversary system
1.     Support of Adversary System – Freedman (Supp 6)
a.     Depends on opposing parties to gather and present evidence
b.     Great priorities to rights of parties
2.     Inquisitorial System
a.     Psychological question – Which system is better for fact finding?
i.       Differences in incentives for thorough factual investigation
ii.      Way they make decisions
3.     Interrelationship
a.     AS – lawyers (of each party)
b.     IS – investigating magistrate (develops a hypothesis about truth, very often accept police version of facts)
i.       Preliminary bias – blocks a full investigation
1)    Are AS lawyer’s immune to this? Fuller, No, but less of a problem because they have incentives (being paid, reputation)
c.     AS is better for truth acquisition
4.     Main problem – various inequalities
a.     Supp 3 – more significant inequality in wealth
i.       File kitchen sink motions because they can afford it and it wears down resources of unwealthy litigants
ii.      Withholding evidence
5.     The system is rooted in the Constitution
a.     Right to jury trial
b.     Right to confront witnesses
c.     Right to counsel
d.     Fundamental changes to adversarial system would require major amendments to the Constitution, which is not going to happen
C.      The “Basic Postulate” or “Dominant View”
1.     Zealously protect interests of the client
a.     This could cause a great harm to another or to the public interest
2.     Jurisprudential view – What is law? – Holmes (p 31)
a.     Prediction of what the client can get away with
b.     Prediction of what the judge would decide
3.     To be a good lawyer you must understand the concept of law from the perspective of a bad man
a.     Lawyers should help client do what he wants (that is LEGAL)
4.     Simon critiques this dominant view à Positivist
a.     Because the law includes moral background, a good lawyer should take it into consideration and advise clients that they cannot always do what they want
b.     Basic Maxim (Supp 11) – Consider relevant circumstances of the particular case, seem likely to promote justice
i.       Lawyers sometimes assume what their client wants, but they should dialogue more
5.     Decisions of Lawyers (Freedman)
a.     To take on client in the first place
b.     To continue even after client wants to do something bad
6.     Hypothetical about statute of limitations – Does the client have a right to have the statute of limitations apply?
a.     Simon suggests that he doesn’t if the lawyer knows he’s guilty
b.     Prof Simon has a problem with this, he agrees with Freedman that you just shouldn’t take the case to begin with
D.      The Ethics Codes and Disciplinary Process
1.     1908 – ABA Canons of Professional Ethics
2.     1970 – ABA Code of Professional Responsibility (Model Code) – confusing organization
a.     ABA is a private organization – codes must be adopted before they are “law”
3.     Model Rules of Professional Conduct
a.     Black letter
b.     Comments that illustrate rules
4.     Consequence for a violation of an Ethics Rule – Disciplinary process
a.     Client, another lawyer or judge files complaint
b.     State Bar decides whether or not to investigate
i.       Complaining party has no recourse if bar decides against it
1)    Unless the lawyer’s conduct was also a legal violation
ii.      SEC has their own ethics rules
iii.    Federal court uses ethics rules of the state where the court resides
c.     Punishments
i.       Private reprimand – letter of sanction
ii.      Public sanctions
iii.    Disbarment
d.     Lawyers now have a right to a federal due process hearing
5.     Can also cause legal problems (but the two problems are distinct)
i.       Violation of an ethics rule dramatically increases the risk of malpractice liability
ii.      Some rules are designed so that the lawyer’s conduct is unethical because it is illegal (ex. obstruction of justice)
II.                  Basic Features of the Attorney-Client Privilege
A.      The Nature of the Relationship and its Formation and Termination
1.     Devolution of the Legal Profession (Gilson, Supp 18)
a.     Difficult for consumers to evaluate the product (legal services)
i.       Even after they get the services
b.     Normal market forces do not operate correctly
c.     Ethical difficulties in representing sophisticated clients
d.     Attempting to shop around for a lawyer is costly
i.       Can never know what you are going to get
ii.      As long as this remains true, market competition among lawyers will not undermine their ability to maintain their ethical standards
e.     Corporate incentives – There are clients who have incentives to hire lawyers with impeccable ethical reputations
i.       Supply legal opinions guaranteeing the integrity and legality of their products
ii.      A lot of ethical clients
iii.    Corporate scandals prompted major changes in corporate law
2.     To what extent are sophisticated clients the source of a lawyer’s ethical problems? (Supp 25)
a.     Clients often find relationship between client and lawyer unsatisfactory
i.       Two complaints
1)    Lawyers don’t care
§    Do not sympathize, show no emotion
2)    Lawyers don’t communicate
§    Don’t answer phone calls and keep client up-to-date
b.     Sarat and Felstiner studies (p 455)
i.       Why lawyer’s don’t’ get emotionally involved?
1)    Lawyers don’t think emotional issues are relevant to legal issues
2)    Ability to preserve objectivity of judgment
3)    Tiring to get emotionally involved in all the cases you have
4)    Financial – empathy costs time (who is going to bear these costs)
ii.      Lawyers present law in action from the vantage point of legal realism
1)    Clients think the legal system is fair and vindicates just causes
2)    Clients think lawyers are indifferent to the justice of their cause
§    Why do lawyers tell clients that their case may depend on a lot of factors?
o   Hope to inflate client’s sense of satisfaction when you win
o   Lead to settlement if client is worried about outcome after litigation
1. Law is uncertain
2. Lawyer cannot know who the trier of fact is going to believe
c.     Might the Gilson thesis have anything to do with why unsophisticated clients criticize lawyers for not caring about their case?
i.       Unsophisticated clients have no idea if they have a good or bad lawyer
1)    They are paying money and their future rests on what this lawyer is doing
2)    Clients evaluate what they can about the lawyer
ii.      It might make sense for the lawyer to exercise some degree of care
1)    Client trust increases ease of representation and they would be more forthcoming with information
iii.    Lawyers have economic incentives to keep sophisticated clients happy
1)    They are able to evaluate lawyers
2)    Many are repeat clients
iv.    Economics are different for ordinary people
1)    Lawyers are acting on the belief that keeping these people happy by returning phone calls, etc. is economically irrational
2)    Clients believe they are stuck with their lawyer
3.     Rule 1.4 – Communication (RB p 16)
4.     Beginning the Attorney-Client Relationship
a.     Engagement letter – describes
i.       Arrangement for fees
ii.      Expenses
iii.    Scope of representation
iv.    Seek client’s consent for remote conflicts of interest
b.     How is the relationship formed?
i.       Contract
ii.      Court appointed (indigent)
iii.    Problem: These are not the only ways that the relationship can be formed (no contract)
1)    Togstad v. Vesely, Otto, Miller and Keefe (p 457) – legal malpractice case
§    Facts:

ic matters – it would be very cumbersome to have to consult with client for everything
i.       Ex. witnesses to call, what defense, change of venue, etc.
ii.      Taylor v. Illinois (Supp 27)
1)    Facts: Δ’s lawyer failed to give a list of witnesses and the trial court refused to let them testify. As a result, the Δ was convicted
2)    SC upholds conviction
§    A lawyer has full authority to manage conduct of the trial
iii.    But if client could show conviction resulted from lawyer’s incompetent choice, they could have an ineffective assistance of counsel claim
2.     Appeal
a.     Jones v. Barnes (p 480) – client only has right to counsel on appeal, but does no have guarantee to choose what issues to raise
b.     Anders v. CA
i.       All client’s issues on appeal were frivolous and lawyer refused to appeal
ii.      Court found that if counsel thought client had no meritorious issues, she could withdraw from representation but she had to accompany her request with an Anders brief
1)    Discussing anything that might arguable support an appeal
c.     Seems to be inconsistent with other ABA rules giving client certain decisions
i.       The Constitution does not require giving this decision to the client
ii.      Freedman – but the client is the one who has to live with the consequences
d.     What about clients who forego legal tactics that might save him from the death penalty?
i.       Court must appoint a mental health specialist to determine whether Δ is competent to stand trial
ii.      SC decided that Δ can choose to die by choosing not to appeal a death sentence
iii.    But People v. Deere (p 485) held that the lawyer must present mitigating evidence at penalty stage even if Δ does not want it presented
iv.    Freedman thinks client should have final decision
3.     Diminished Capacity Clients
a.     Mental patients, children, elderly and criminal Δ with mental problems
b.     MR 1.14 – Clients with Diminished Capacity
i.       (a) – lawyer shall maintain a normal a-c relationship
ii.      (b) When the lawyer reasonably believes client has diminished capacity, the lawyer may take reasonably protective action (appointing guardian, conservator or guardian ad litem)
c.     Why is there a general preference to treat the client as “normal”?
i.       Taking protective action will hurt the client more than help
1)    Guardian has legal authority over client’s life
2)    Conservators – authority over property rights
3)    Guardian ad litem – authority only over legal matters (mostly for children)
ii.      Client is sent to mental facility until trial
d.     **Lawyer should remain aware of possible conflicts of interest between guardian and client
e.     What if lawyer is unsure whether client is competent or if child understands?
i.       Effective assistance of counsel would require lawyer to tell court their concerns
ii.      If the lawyer does nothing the client could be seriously prejudiced
C.      Dealing with Another Lawyer’s Client
1.     MR 4.2 – Non-contact
a.     A lawyer shall not communicate about the subject of representation with a person the lawyer knows to be represented by another lawyer unless
i.       The lawyer has the consent of the other lawyer OR
ii.      Is authorized by a court order
b.     Why?
i.       Protecting the a-c relationship from outside interference
ii.      Preserving confidential information