Professional Responsibility Gottlieb Outline Fall 2003
I. Chapter 1 Relationship of Law, Lawyers and Ethics
A. Introduction
i. Ethics refers to imperatives regarding the welfare of others that are recognized as binding upon a person’s conduct in some more immediate and binding sense than law and a more impersonal sense than morals
ii. Problem: “Lawyers training demythologizes the law. The lawyer is conscious of the ambiguities of the law’s guidelines, the conflicting character of its policy etc…the essence of his activity is the manipulation of governmental authority and the language and social processes through which that authority is exercised.”
iii. Problem: professional ethics give priority to an ‘other’ à the client, and in general require subordination of everyone else’s interests to that of the client
iv. Rules of legal ethics are not universal à your job begins by making a distinction between your client and everyone else.
a). Prohibited Assistance – what kinds of things is a lawyer prohibited from doing for the client?
b). Competence – what measures will assure competent lawyering?
c). Confidentiality – What info learned by a lawyer should be treated as a secret, and from who and under what conditions may the secrecy be lifted?
d). Conflicts of Interest – when and to what extent is a lawyer prohibited from acting because there is a conflict of interest b/w her clients or b/w herself and a client
B. Adversary Ethics and Spaulding v. Zimmerman
i. Appeal from an order that set aside a prior order approving a settlement between some parties in a car accident.
ii. David Spaulding was riding in John Zimmerman’s Car when it collided with Florian Lederman’s car
iii. David was examined and diagnosed by his own physicans with a number of problems
iv. Δ ordered a medical exam. Δ doctor found an aorta aneurysm but Δcounsel didn’t disclose to Π. Much more serious and potentially fatal problem
v. Based upon the affidavits from Π’s doctors, the court approved the settlements reached by the parties. The report from the Δ doctor was not offered.
vi. Later when David went for Army reserve physical the condition was discovered – it had progressed and was easier to observe.
i. NOTE: he was a minor at the time of the settlement, so he never consented to the settlement.
ii. He began the present action, alleging that the injury resulted from the accident.
iii. We have to consider the character of the concealment. When the parties went to the judge to seek approval of the settlement, they were no longer adversariesà they were allies, mutually seeking approval of their signed agreement
iv. Π probably should have requested the report. They are entitled to do so according to Fed Rule Civ Pro 35(b).
v. Court found no fraud or wrongdoing.
vi. The holding in this case rests on concealment from the court, more than from the adverse party
vii. See Rule 1.4 àclearly the attorney failed here. This is important because b/w the time of discovery and the time of settlement he increases the client’s risk of liability by not telling him of the possibility of the wrongful death suit. Think of tort duties – the Δ has a put the Π in peril by having the accident which damages, & could potentially rupture the aorta
vii
them to limit your liability for
a). Competent Representation
b). Client has the duty to decide on the objectives of representation
1. In a Civil Case this includes – whether or not to settle a case (they can delegate that however)
2. It is generally the lawyer’s call, to decide the mean’s of representation (i.e. objection in trial, deposition of witnesses)
v. Rule 1.4 – lawyer shall explain a matter to the extent reasonable & necessary to permit the client to make informed decisions regarding the representation
a). Even as to matters which are the lawyer’s responsibility – the lawyer has a duty to keep the client informed
b). What happens if you disagree on what you should be able to do?
c). You can leave the relationship or they can discharge you.
vi. An agent of the client may bind the client, if the client has given express or apparent authority.
a). Apparent Authority in this situation has to be something the client communicated. Some manifestation from the client that would cause a 3rd party to believe the agent had authority
C. In a civil setting, parties can generally work out how they are going to deal w/ division of authority or one of them can leave the relationship
D. International Telemeter Corp v. Teleprompter Corp.
i. The majority says that the CEOs by their conduct gave the attorneys apparent authority – they had gone far enough in negotiations and pretty much reached an agreement
In criminal situations, lawyer-client relationship and division of authority is all harder to sort out
