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Legal Profession
University of Georgia School of Law
Sawyer, Logan E.

Legal Profession
Professor Sawyer
Spring 2011
 
1.      Concept of Profession: Group pursuing a learned art as a common calling in the spirit of public service—no less a public service b/c it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose. (Difficult to pin down proper def.)
a.       Numbers show that professionalism is worsening and commercialization increasing.  The legal profession should work voluntarily toward implementing reforms that will make us more a profession “in the spirit of a public service”.
b.      Both the functionalists and the progressive lawyers opposed the commercialization of the profession, and insisted that lawyers had an ethical responsibility to counsel clients and to modify laws in ways that would serve the common good.
c.       Rhode—“Professionalism”: The “professionalism problem” is a lack of consensus about what exactly the problem is. Bar’s strategies of choice for addressing professionalism have been education and voluntary civility codes.  The popularity of these rests not on evidence that they are effective, but rather on evidence that they are innocuous.
d.      Posner, Overcoming Law: The end of the guilds and the rise of competitive markets and mass production made goods cheaper in both senses of the word: lower in quality but also in cost. The supply of legal services was expanded through increases in number of suppliers, increased competition among suppliers, and technical and organizational innovations that enhanced the productivity of legal services.
e.       Parsons, “The Professions and Social Structure”: Examines the different motivations b/t business and professions. There is no important broad difference of typical motivation in the two cases, consisting of success and reputation. But there is a clear-cut and definite difference on the institutional level in terms of what behavior is rewarded.
2.      Overview of American Legal Profession, Abel: Premise of article is lawyers look less like an independent profession than ever and if things continue will not be one.  Recently, legal profession has significantly changed: number of lawyers more than doubled, law firms size rapidly expanded. Solo practitioners are declining in number and larger firms are increasing in number.  The growing number and diversity of lawyers have made it difficult for any association to speak on their behalf.  Second, many doubt lawyer’s capacity to regulate themselves, and there are a growing number of external regulators to respond to the profession’s diversity of ppl.
3.      Axiom Legal Eliminates and Expensive Middleman in Corporate Legal Work: Harris left a big law firm and cut out the expensive over head, and partners’ salaries resulting in cheaper legal fees for clients while maintaining a significant cut for himself.
4.      Concept of Lawyer as Attorney justifies 2 things:
a.      Our ability to regulate ourselves
b.      Justifies our monopoly power over legal services
5.      Requirements for Profession:
a.      Specialized Knowledge
b.      Clients’ lack of knowledge
c.       Fiduciary Duty to clients and to the Common Good
d.      Self-Regulation
e.       Exclusive Licensing
6.      Business should be regarded as opposite of being a professional. Not requirements. No specialized knowledge.
7.      Numbers indicate that lawyers are becoming less professional. Stresses may be contributing to this:
a.      Increasing competition; market for services has expanded faster than demand; elimination of barriers to competition (easier to move to place to compete); Increased commercialization of legal services; privatization (focused more on ourselves than the public good); More lawyers are employees (Lawyer is trying to satisfy boss’s needs as opposed to client’s needs); increasing dissatisfaction w/ lawyers and their jobs.
8.      Some argue that Lawyers, too, should be subjected to the free market.
a.      Problems:
                                                  i.            Less able to serve the public good
                                                ii.            Leads to increase competition, which means longer hrs and could detach lawyers from the goals of the client.
b.      Benefits:
                                                  i.            Greater openness to the profession
                                                ii.            Greater chance of meritocracy
                                              iii.            Lower Charges for the clients
c.       Question to ask: What is the right way to organize legal services?
9.      Rules are based upon assumptions of human behavior.  Rarely are these assumptions every tested. But we should ask not only what values a particular rules protects, also identify and articulate the assumptions made about how the rule will likely affect behavior. And, to what degree that it will.
10.  Prevalent sources of rules regulating lawyers are statutes; procedural and evidentiary (privilege) rules; the common law (agency, tort, & K law); court rules; and state constitutions.
a.      Negative Inherent Power: Cts invalidate direct legislative efforts to regulate the admission or conduct of lawyers even when these legislative actions do not contradict any judicial ones. Cts assert that the power to regulate the bar belongs to the cts almost exclusively.
                                                  i.            An effect is little government oversight that must be initiated by the legislature.
                                                ii.            Some cts are more tolerant of legislative activity, though. State’s do have police power to protect their citizens and legislation has been found acceptable as long as the overlap does not create a substantial conflict.
                                              iii.            Unauthorized practice of law is a prime area in which judges and lawmakers clash.
11.  Codes of ethics are now the main source of rules governing the behavior of lawyers. Some question the wisdom of allowing those who will be regulated to write the regulation. ABA major actor here.
                                                  i.            It should be noted that the ABA is a private actor w/ no right to impose its rules on anyone. B/f a rule can actually govern a lawyer’s behavior, a ct must adopt it.
b.      1st. Canons of Professional Ethics—1908. Listed the required behavior and aspirations lawyers should seek to abide by.  
c.       2nd Code of Professional Responsibility—1970. Contain ambiguities prompting revision
d.      3rd Model Rules of Professional Conduct—1983. 47 states and D.C. adopt Model Rules w/o much variation.  These are in rule-and-comment format.
12.  The codes and rules of ethics apply to all lawyers w/o regard to practice setting or nature of client. Some exceptions do distinguish, but mostly do not recognize different practice settings or nature of clients.
13.  Other Authorities:
a.      Ethics Opinions: Interpretation of the Code or Rules by bar association ethics committees. Important ethics opinions are published as guidelines for other lawyers and for persuasive force they may have w/ judges in future cases. ABA opinions are particularly influential
b.      Law Review Literature
c.       Restatement of Law Governing Lawyers by the American Law Institute
14.  Hazard: Argues that ethical aspirations (which to him are a matter of personal opinion) are matters of personal values, and have no place in a legal code.  He believes that codes should be legalized and demoralized and this has triumphed in the field of professional regulation.
15.  A case for legal aid at Wal-mart: The US does not provide sufficient access to legal advice to the poor. And the bar allows only ppl w/ law degrees and who are admitted to the bar to offer legal advice. The US needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways. Maybe creating a TurboTax for legal advice.
16.  Arguments for Lawyer’s self-regulation:
a.      Lawyers are experts on lawyering, so they should set rules.
b.      It is critical that judicial system remain free of political influence.
c.       Efficient: Lawyers will create regulations on their own, so consumers of services will be the ones that pay.
                                                  i.            Critique: If spread over more ppl, legal services would be cheaper for all.
d.      Arguments against:
                                                  i.            Undemocratic.
                                                ii.            More merit based.
17.  Question: is move to formal rules w/o aspirations better?
                                                  i.            They are more easily enforceable b/c more clearly ascertainable.
18.  Role Differentiation multiple responsibilities can impose significant ethical financial and other career pressures. Conflicts occur b/t lawyer’s responsibility to client, legal system, and to self.
19.  Role Differentiation: Your ethical duties shift depending on your role. Basis of Neutral Partisan.
20.  Simon’s Neutral Partisanship Conception of Lawyer’s Role: Narrows the range of the advocate’s moral concern to focus solely on the client.
a.      Principle of Partisanship: Requirement of pursuing the client’s ends diligently. Lawyer will employ means on behalf of client which he would not consider proper in a non-professional context. Partisanship is concerned w/ means.
b.      Principle of Neutrality: Requirement that lawyers should not judge the justness of the client’s lawful ends, and may not be held morally accountable for those ends. Partisanship is concerned concerned w/ the end.
c.       Principle of Procedural Justice: B/c we have an adversary system lawyers must adhere to the principles of partisanship and neutrality.
d.      Principle of Professional: Idea that issues of legal ethics can only be resolved by lawyers in their occupational capacity, not by individual attorneys in light of personal convictions or by nonlawyers.
e.       Moral Justification:
                                                  i.            Systematic Concern: E/o deserves a defense
                                                ii.            Legal System: Lawyers are ordered to go beyond what they would be morally comfortable with.
1.      Adversary system is the primary justification for partisanship.
21.  On the MR face, the MR weakens the ethic of zealous representation.
a.      Rule 1.3: Goes towards Partisanship
b.      Rule 1.2: Goes towards Neutrality
c.       Rule 1.16 (b)(4): Cuts against Neutrality
d.      Rule 2.1: Cuts against partisanship.
                                                  i.            Important to note that rule says may. If said “shall” absolutely would undercut.
22.  Criticism of Neutral Partisan Concept:
a.      Richard Wasserstrom: Provided that the end sought is not illegal, the lawyer is an amoral technician.
                                                  i.            If the lawyer believes everything they assert, then it appears to be proper to regard the lawyer as in fact embracing and endorsing the points of view that they articulate.
                                                ii.            If the lawyer does not believe what they assert, if lawyer is only playing a role, then it appears to be proper to tax the lawyer w/ hypocrisy and insincerity.
1.      This role-differentiated behavior of the lawyer puts lawyer’s integrity into question in a way that distinguishes the lawyer from the other profes

ors, that may be relevant to the client’s situation.
 
Black Letter Law
What is a client?
1.      A threshold question that frequently occurs.
2.      Has been answered by case law, not by the Rules.
3.      Two Ways Attorney-Client Relationship formed:
a.       Implied: An attorney-client relationship is formed when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and (b) the lawyer fails to manifest lack of consent to do so, and (3) the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide services.
b.      Court Assignment:
4.      Money need not change hands to create a client-lawyer relationship. Ex: Court appointment. But the fact of payment is pretty good evidence of a relationship.
a.       A lawyer may be paid by one person to represent another, in which case the second person, not the first is the lawyer’s client.
5.      Irrelevant that lawyer and client do not get along or that they disagree on strategy.
6.      An attorney-client relationship can arise via a law firm’s website.
7.      A lawyer who gives advice over the phone on a 900 telephone number forms a client-lawyer relationship w/ the caller.
8.      In situations conducive to misunderstanding, the Model Rules expressly require that lawyers clarify a possible misimpression. Rule 1.13(f) and 4.3
9.      When a lawyer considers a representation to have ended, she should inform the client that she no longer is a client if there is a reasonable chance that the client may believe the representation is continuing.
10.  Clients don’t have to be persons; Corporations, trade associations, estates, and governments may all be clients.  Lawyers must be persons, though.  Class action can also be a client. But, at some point, the distinction b/t a lawyer and a class client may begin to dissolve entirely b/c the lawyer may be the only one w/ a financial interest in the outcome of the litigation.
11.  Examples where attorney-client relationships did not result:
a.       Ct appointed counsel to rep fugitive. But, any action taken by the lawyer w/o the D’s knowledge or consent could not bind the fugitive D.
b.      D never requested attorney work, so no compensation.
c.       Hospital not client of lawyer simply b/c it benefited from the attorney’s work for a client who owed the hospital money.
d.      Confiding about your legal problems to a friend who is a lawyer not create relationship
12.  Perez v. Kirk & Carrigan: Perez was driving a truck of which the brakes went out and collided with a school bus killing children. While in the hospital lawyers visited Perez telling him that anything he told them would be confidential. He told them an incriminating statement. The lawyers then passed this statement onto the DA’s office resulting in his grand jury indictment.
a.       The court held that this was sufficient to imply the creation of an attorney-client relationship at the time Perez gave his statement to Kirk. And, that, by giving statement to DA, Kirk breached their fiduciary duty to Perez.
b.      The ct emphasized the necessity of confidentiality in furthering the efficacy of lawyers job.
c.       Further, the ct recognizes mental anguish from public humiliation as a sufficient damage.
d.      Ct says a/c relationship exists b/c Perez was justified in believing so.
 
Rule 1.1 Competence
            A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
1.      [1] Relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to a lawyer of established competence in the field.  Generally, the required competency is that of a general pracititoner.
2.      [5] The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.
3.      [6] Must maintain competence (requisite knowledge and skill) a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply w/ all continuing legal education requirements to which the lawyer is subject.
4.      Difficult to enforce; hard to determine if acted competently or not.
a.       Enforced through tort suits generally.