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Professional Responsibility/Legal Ethics
University of Georgia School of Law
Munzer, Stephen R.

Professional Responsibility
 
I.       Where Do “Ethics” Rules Come From: 1-15
1.      Who makes the ethics rules?
·         The constitution – 1st and 6th amendments in particular
·         Statutes – both procedural and evidentiary rules
·         Codes of conduct – drafted by a number of sources, adopted by the courts
·         The Courts – as a self-regulating profession, the courts do play a large role in this
o       The power to regulate the bar belongs almost exclusively to the courts, to the extent that they will often invalidate legislation which seeks to impose standards on the bar
§         Courts may tolerate some legislative intervention if it’s an exercise of police powers to protect the public (i.e. law limiting attorney’s fees in med malpractice actions) but that’s about it…
o       Rather than the legislature? Yes, in large part
§         Inherent powers doctrine has been cited to invalidate efforts by the legislature
§         Power to regulate the bar belongs to the courts almost exclusively
·         The ABA
o       Vast majority of states have adopted some version of the ABA model rules, and if thy’re not incorporated verbatim the courts will still look to them as guidelines
o       But the ABA doesn’t really have binding authority
§         Lawyers don’t need to join
§         The model rules aren’t mandatory unless they’re picked up by a state agency that has the authority to implement them
·         Self-regulation creates a sticky situation – allowing those who will be regulated to write the regulations
o       Proponents of the practice argue that self-regulation is a hallmark of professionalism
§         The profession is more in tune with reasons to regulate
·         Ex: reacting to scandals – Professional responsibility became an accreditation requirement after Watergate, new changes in the rules post-Enron and other corporate scandals
§         The idea of the bar as a self-regulatory body permits a type of regulation that wouldn’t be possible – internally aspirational, encourages all members to do their best
§         Self-regulation may be more pervasive – the entire profession is subject to the sense of the overarching obligation
o       Courts often defer to the decisions of the model rules bodies
§         Problem – non-elected, nongovernmental body making the rules
§         Benefit – has led to less “rubber-stamping” and more oversight by a concentrated source
2.      What rules actually apply? The bar is a self-governing institution, but the rules that apply are far from uniform
·         Model Rules – issued in restatement format, more like black-letter authoritative rules, with comments to serve as additional guidance
o       Given different weight by different jurisdictions
o       Model code for professional responsibility – the older, canon based rules
o       Model rules – more current, followed at least in part by about 40 states
·         Problem – multistate practice, what happens when jurisdictional rules differ or conflict?
o       Paradox – the model rules have been adopted in a very non-uniform way, have been a point of departure for the states rather than a force of unification
§         Don’t always know what rules to apply to what situation, even though lawyers are always subject to discipline in the state in which they’re admitted
o       Possible solutions –
§         1993 Revision to Rule 8.5(a):
·         The rule of the state in which the lawyer is admitted
o        Wherever the conduct occurs OR
o        Wherever the client happens to be
·         If lawyer practices in two or more states?
o        State in which

And an element of trust in the professional relationship – the client is required to trust the lawyer because of the informational inequalities, etc, and the lawyer is ethically obligated to act in accordance with that level of trust
§         Element of a vulnerable “customer”
o       Self-regulation – professions are frequently managed internally
o       Highly specialized training – seems to be an inherent characteristic of professions
o       Licensure requirement – can’t engage in certain professional occupations without state licensing
o       Expertise
o       Wage/salary distinction
o       Level of supervision – trade associations and journals within the profession, and supervision by the public in general
·         What is a profession, professionalism? Authoritative interpretations of what it means to be a profession…
o       Roscoe Pound, 1953 – “The term refers to a group … pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.”
§         Entirely normative despite attempting to appear to be an authoritative definition
§         Central idea in his definition is public service, everything else is building up to and around that idea
·         But he doesn’t provide a definition of public service
Problem – client is left out of this formulation