Law and Ethics Outline

LAW AND ETHICS OF LAWYERING

FALL 2014

SMOLLA

I. The Legal Profession: Background and Fundamental Issues

A. General Information: Definition/Practice/Role

1. What is a lawyer?

a. “A lawyer is someone legally authorized by a jurisdiction’s highest court to engage in the practice of law.” This definition is both circular and vague. A better definition is someone who works for others and relates a client’s specific factual situation to the law.

2. When is a lawyer practicing law?

a. Two elements for practicing law:

i. Exercising legal judgment to APPLY the law

ii. On behalf of ANOTHER person

b. Law professors are not practicing law when they are teaching, nor when they are writing about the law. Preparing a will for yourself is not practicing law.

3. What is the role of lawyers in a society such as ours?

a. The American lawyer “greases the wheels of society” and are multi-purposed decision makers.

B. Lawyer Education Throughout History

1. How did we go from self-trained lawyers (through apprenticeship) to training and educating lawyers? Is this good or bad for the country?

a. The legal education formed for many reasons, one being to keep the legal profession narrow. The ABA pressured to make law school compulsory because it wanted to “raise standards” to protect the public. Obviously, lawyers need to be able to read and write, among other skills acquired through an education.

b. The more barriers imposed, the less people that can become lawyers (because of money. Energy, time). This also allowed for discrimination against minorities.

2. Evolution from the “Apprenticeship model” to the “Academic model”

a. Cons: produce too many lawyers, law schools became cash crops.

b. Came into the system in the late 19th century beginning with Harvard. The dawn of the legal education, including casebooks, the discussion of legal doctrine, etc.

c. Curricular war between upper-class, university-affiliated law schools vs. other two year schools (more apprentice-like). Universities combined with ABA and required states to pass laws requiring students to graduate from a law school to sit for the bar, required accreditation, and required three years to be accredited.

d. Theories:

i. Hostile takeover by professors who wanted to be respected as professors.

ii. Wanted lawyers to be intellects (important for being a lawyer)

e. Bar exam came into existence around the 3-year school takeover

3. Re-introduction of the Apprenticeship Model?

a. Starting in the 1970s, the practicing bar and judges started to make attempts to counter the academic takeover because students were clueless on how to practice law and believed practical instruction should be introduced into the curriculum (clinics, skills courses).

b. Surge to force law schools to have a more serious approach to making lawyers practice-ready.

c. Other forces on making lawyers practice ready: internet, global marketplace and thus global law practice, change in economic model for the delivery of legal services that took place during the 2008 recession.

4. Are we on the cusp of a dramatic change?

a. Legal employment has declined and the number of lawyers increased; internet and science has impacted the ability to breach country boarders and to utilize differing laws in other countries—things only lawyers used to be able to do, now people can do themselves online.

C. Ethical Standards

1. Ethics of Duty vs. Aspiration of Values?

a. Basically the ethics that are a duty are the minimum standards that can be enforced in disciplinary rules, set out by the ABA Model Code of Professional Responsibility, while we aspire to be ethically and morally greater.

b. Many jurisdictions have statements of expectations of the legal community (aspiration of values) that imposes norms of conduct and expectations of conduct much more expansive than those in the actual rules.

i. Georgia is an example of this: Supreme court has noted shortcomings of the profession. For example, the “we will never settle—litigate you to the death” idea is permissible under the rules, but not acceptable moral behavior.

ii. Other examples: lawyers are expected to educate student lawyers, grant reasonable extensions to opposing counsel, etc. but these aren’t rules.

2. Consequential vs. Deontological Standards

a. Consequentialism- the ethical analysis is based on achieving a good result

i. Utilitarianism- how particular conduct affects people’s happiness and well-being—if more total well-being will be generated by one course of conduct than another, then that course of conduct is morally preferred.

ii. Act utilitarianism vs. Rule utilitarianism

b. Deontological- the analysis focuses on absolute values- following a set of principles or responsibilities.

i. Duty approach (behavior is right or wrong without regard to the effects) vs. rights approach (individuals have certain human rights lawyers should help preserve)

D. Hypos/Examples

1. SWIMMING POOL HYPO:

a. Olympic multi-gold swimmer and overweight man go to hotel pool. Overweight man starts to swim, struggles. Swimmer was going to throw him a bouey but decided not to and watched him die. Everything caught on surveillance. Marriott employee puts it on the internet.

i. Who is involved or cares about this moral situation?

1) The prosecutor, swimmer’s agents, the wrongful death/negligence action plaintiff’s lawyer. There is not a tort because there is no affirmative duty to rescue (protection of autonomy).

ii. Is it ethical to take this case as the plaintiff’s lawyer since there is no claim because no duty to rescue?

1) Maybe it is not unethical IF you really think you could find an exception to make this a jury issue.

2. Lawyers notoriously immoral?

a. TALMAGE/ JOHN DEAN STORY:

i. Talmage: Senator from GA, successful lawyer, prosecutor- ultimately democratic senator of Georgia. During Watergate crisis, the senate Watergate committee was taking over the investigation. The Whitehouse attorney (John Dean) turned on Pres. Nixon and for a plea bargain, agreed to testify against him. Powerful moment: Talmage examining John Dean with exhibit 34-47 of the Watergate hearing. There’s a list of names, please clarify the names. John Dean said he put the names together in one day, the list of people who violated the law. Some of them had “Stars” next to them, what do these mean? Dean said “Of the 32 names, those are people who are also lawyers.” (including Nixon himself). 2/3 of the list were lawyers. Shocked- shamed the profession- “ethical blindspots.”

3. FEMALE PILOT SMEAR CAMPAIN STORY:

a. Smear campaign against his client, a woman (of two, one deceased) not permitted to fly airplanes in the navy. Butt-hurt navy man leaked negative flight records (everyone pilot has them). She gave up trying to fly, sued against smear campaign, which turned on whether she was a private or public figure. A lot of hatred against women in the military, etc. Smolla represented Cathy Lawrence against attorney Kent Brown, who was representing the “bad guys” in DC Court of Appeals. Hurricane comes before closing argument. Justice Roberts pro-first amendment (reporter had wrong memo against first amendment).

i. Takeaway: You cannot channel the anger of your clients. If you are a nice guy, you get respect, continued clients.

II. Regulation of the Legal Profession

A. Character and Fitness for Admission to the Bar

1. M.R. 8.1: Bar Admission and Disciplinary Matters

a. Model Rule 8.1- An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

i. knowingly make a false statement of material fact; or

ii. fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6

b. Model Rule 8.1, Comment 1 – Licensed lawyers are duty-bound not to assist in the admission of an unqualified applicant.

i. HYPO: Before applying to law school, applicant was involved in a crime but never charged. Consulted with a lawyer about possible liability. Told lawyer about her activities. Applicant went to law school, applied for entry to the bar and asked lawyer to write her a recommendation letter which the lawyer does. The lawyer is subject to discipline for assisting in admission of an unqualified applicant.

c. Policy reasons for rule:

i. In Re Debartolo 488 NE2d 947 Illinois 1986: An applicant for admission to the bar must show that he possesses a good moral character and general fitness necessary for the practice of law. Applicant’s failure to respond fully and accurately to the bar’s questions betrays a lack of concern for the truth.

2. General Requirements for Admission to the Bar

a. Education

i. All states impose educational requirements on applicants for admission to practice law. Most states require graduation from an ABA-accredited law school for admission to practice law. Some states allow as a substitution for law school graduation reading the law in the offices of a licensed lawyer on a prescribed and approved schedule.

b. Knowledge

i. The bar admission is administered in each state.

c. Good Character

i. Form: States require the completion of questionnaires from applicants (C & F). In some states, recommendations

ii. Issue: Whether the individual has the good character necessary to the practice of law

1) HYPO: Professor of Middle Eastern studies expresses extreme views in the classroom, goes to law school and now sits before the bar. Should he be admitted to practice of law? Argue both sides, no clear answer

1. Yes: speech is protected and people can’t be discriminated against for their status so long as they don’t actively advocate violence

2. No: Passively advocating violence and breaking the law should prevent someone from practicing law. Need more than membership, need intention to engage in illegal activity.

iii. A wide range of past conduct may be considered: e.g. convictions, arrests, and civil litigation. But the questions asked and the information gathered must be germane to the applicant’s fitness for the practice of law.

1) In re G.W.L. 364 So. 2d 454 Florida 1978: Authorities found a bar applicant’s filing for bankruptcy to avoid payment of student loans to be evidence of a lack of responsibility and denied admission to the applicant.

2) Clark v. Virginia Board of Bar Examiners 880 F. Supp. 430 EDVA 1995: State bar is enjoined from asking mental health questions that are too broad. Mental health questions must be narrow and related to the current mental health of the applicant. Question about applicant’s mental health within the past 5 years was too broad.

1. Focus on incide