Ethical Lawyering Outline

Legal Ethics
[I] History of the Ethics Codes (The Canons – ABA Code – Model Rules)
[A] Before the Codes
Pre-1900 some state bar associations adopted codes of legal ethics (Alabama had first code in 1887). Judge Sharwood’s ‘Essay’ on professional ethics written in 1854. David Hoffman made his 50 “Resolutions with Regard to Professional Deportment” in 1836. Around 1900, T. Roosevelt accused lawyers of bad ethics.
 
Afterwards a committee was formed to consider whether the ethics of the profession rose to the level which the country demands. In 1906 the investigating ABA committee issued its report. Religious language used in the report: high priest, shrine of justice, etc…
 
[B] The Canons (first set of rules): Grandiose and Aspirational – “Measuring Stick”
32 Cannons were adopted in 1908, by 1920, almost all states had adopted some version.
Important point: the ABA rules have absolutely no authority; they only become authority when the state adopts them (i.e. through the legislature or the bar of a state chooses to adopt them). Rules were usually left largely complete when adopted, but the states tinkered with them somewhat.
 
The Canons were added onto until there were 47 in 1960. They were rendered almost completely useless because there were so many different opinions (over 1500) interpreting them. Interpretation was made more complicated by the fact that some opinions were not even based on the original textual language of the Canons.
 
Many problems with the Canons. For example, Canon 6 addressed conflicts of interest and disposed of this topic in only 6 sentences, thus raising more questions than it answered.
 
[C] ABA Code of Professional Responsibility: Aspirational and Minimum Standards This Code was divided into three types of rules:
1.      Canons: Very broad statements of principles. Statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships.
2.      Ethical Considerations (ECs): Aspirational rules, advisory, not mandatory, using words like “should”
3.      Disciplinary Rules (or DRs ): State the minimum level of acceptable conduct, mandatory rule, basis for punishment, using words like “shall” or must”
 
Problems with The Code:
1.      Ambiguities as to what was actually required; some ECs sounded mandatory, yet some of the DRs were phrased in an aspirational way.
2.      Didn’t differentiate between roles lawyers should play.
3.      Supreme Court struck some rules down as unconstitutional.
 
[D] Draft of the Model Rules emerged in 1983 (revised in 2002/2004)
There was a large change in tone from the Canons (all religious and aspirational language was removed). Structural change, organized by relationship and easier to follow and interpret
 
Subject matter of the rules:
Section 1: Lawyer-client relationship
Section 2: The lawyer as a counselor
Section 3: The lawyer as an advocate (frivolous claims, thinking witness has lied). 
Section 4: Relationship with others (transactions with others.)
Section 5: Law firms and associations.
Section 6: Public Service
Section 7: Distribution of information about legal services.
Section 8: The integrity of the profession.
 
The Model Rules are very un-aspirational, setting the lowest standard for conduct. If these rules do nothing except set an absolute minimal standard of conduct then how are they different from any other law? If no different, why would we place the authority for issuing them within the profession, rather than in the legislature? Once you turn the rules into something that is established and is mandatory, decisions are no longer ethical once, but compliance. Mandatory and not free will.
 
For these reasons, in 15 years or so the profession may abandon the Rules as we know them.
 
[II] Interpretation of the Ethics Codes
[A] What is the basic underlying value or principle that is at stake in a particular Rule? And, why should I care about this rule or value?
 
[B] Remember the demographics of the authors, i.e. those who wrote the ethics codes. The American bar has been overwhelmingly white, protestant, male, and upper-middle class. Even in 1873 a Supreme Court decision held a woman should not be allowed to practice law.   Important to remember who has been writing these ethics books. 
 
[C] Who “wins” within the profession if that’s what the rule is? 
 
[D] Privileged people become protective of the club’s special authority. Does a particular rule exist because it reflects the right thing to do or because it is one way to preserve power that the profession has? Always question the reasons behind the Rules.
 
[III] Models for Behavior
[A] Treat people as Fellow Human Beings or as objects?
 
[B] Kant’s categorical imperative-What if everyone did it? Action applied universally.
 
[C] Consequentialism – Looking at decisions based on their outcome. Assessing ability to make the most amount of people happy.
 
[D] Virtue ethics model – Whether person is acting in a “virtuous” manner.
 
[IV] What is the defining characteristic of a lawyer?
Educational: critical thought, argument, communication.
Systemic: preserving the justice system
Relationship: representing clients, loyalty (most of the class focuses on this in section 1 of the rules)
Lawyers are paid to be your most trustworthy friend.
 
Is it possible to be a good lawyer and a good person?
·         Adversary system furthers societies interest, thus lawyers role is to play his part well for the good of the system.
 
FOUNDATIONS OF THE ATTORNEY-CLIENT RELATIONSHIP
[I] Metaphors for the attorney-client relationship
[A] Friendship: Act in client’s interests
·         Aristotle – Friend as another self
·         But limited timeframe of relationship, and receive payment.
[B] Taxi Driver: Client gets in and tells you where to go
·         Passenger controls the ends; the driver limits the means and method.
·         Neutral partnership – Not responsible for client’s purpose, just to aggressively advance his ends.
·         Represent anyone – Legal presumption of innocence.
 
[1.1] Rule 1.1 – Competence – Before you get to any other question of whether a lawyer can behave ethically, you must know whether a lawyer can competently represent a client. Note the “shall” language here means this is a non-waivable requirement. 
·         “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
·         Old Code (DRs) defined the obligation negatively; lawyer won’t neglect a legal matter. Model Rules impose affirmative obligation; lawyer must educate himself on the matter he is representing and has duty to the client to be prepared
·         Comment 1: Requires proficiency is of a general practitioner, though expertise may be required in some circumstances
·         Comment 2: A newly admitted lawyer can be as competent as a practitioner with long experience à most fundamental legal skill is determining the legal problems involved.
·         Comment 3: In an emergency can give advice or assistance even if don’t have the skill ordinarily required
·         Comment 4: Lawyer can accept if reasonable preparation results in the requisite competence, or by associating w/ someone in the field.
·         Comment 5: Competent handling includes inquiry into and analysis of the factual and legal elements of the problem, and adequate preparation à the amount of attention and preparation required depends in part by what is at stake.
·         Comment 6: To maintain competence, should keep abreast of change in the law and comply with all continuing legal education requirements
 
[1.2] Rule 1.2 – Client/ Lawyer Communication: Scope of Representation and Allocation of Authority Between Layer and Client
·         Clients dictate the ends, attorneys dictate the means
·         1.2(a) A lawyer shall, subject to (c) and (d)…
o     Abide by a client’s decisions concerning the objectives of representation
§         Otherwise the client has traded one tyrant (the government) for another – this is the problem with the overzealous lawyer
§         Comment 1: Client has ultimate authority on purpose
o     Consult with the client as to the means by which they are to be pursued
§         Comment 2: Does not prescribe how to resolve disagreements à lawyer should seek a mutually acceptable resolution à if fundamental disagreement remains, lawyer may withdraw, or client may discharge
o       Take such action as is impliedly authorized to carry out representation
§         Comment 3: Lawyer may rely on advance authorization, but client can revoke such authority at any time
o       Abide by a client’s decision whether to settle
§         Comment 4: If client suffers from diminished capacity, see 1.14
·         1.2(b): Neutral representation à Representation does not constitute endorsement of the client’s political, economic, social, or moral views or activities (neutral partisanship)
·         Lawyers always bring values to the table, question is whether you can still be competent
·         In reality can’t help but bring personal views to the table à can you be competent enough (1.1), or is there a conflict of interest (1.7)?
·         Comment 5: Representation should not be denied those with a controversial cause
·          1.2(c): A lawyer may limit the scope of representation if reasonable under the circumstances and the client gives informed consent.
o       The Ficticous Presumption of Perfect Loyalty (“My lawyer” v. “the lawyer”)
o       If not done initially to limit scope of representation, the presumption is that you are that person’s lawyer generally.
o       Encourages at the threshold of relationship to establish ground rule, avoid confusion.
o       Comment 6: May exclude actions the client thinks are too costly or that the lawyer regards as repugnant or imprudent
·         1.2(d): A lawyer shall not counsel or assist a client in conduct known to be criminal or fraudulent à but a lawyer may discuss the legal consequences of any proposed conduct
o       If lawyer assists in fraudulent or criminal representation he is not acting as “lawyer” can rules applying do confidentiality and loyalty do not apply.
o       Comment 9: Can give an honest opinion about consequences likely to result à client’s use of advice in a crime does not make a lawyer a per se party to the action à critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means to commit a crime with impunity.
o       Comment 10: When client’s action already begun, can’t assist the client by suggesting how to conceal it à must withdraw and discontinue representation if supposed legal conduct is discovered to be criminal or fraudulent.
 
[1.3] Rule 1.3 – Diligence: 
·         “A lawyer shall act w/ reasonable diligence and promptness in representing a client.”
·         Rule establishes baseline threshold, but comments are aspirational
·         Comment 1: Act with commitment and dedication to the client’s interests à zealous advocacy à pursue a matter despite opposition, obstruction, or personal inconvenience à however not bound to press for every advantage, do evertying the client would want, or use every offensive tactic.
·         Comment 2: Work load must be controlled to allow competence for each matter
·         Comment 3: Procrastination can destroy a client’s legal position à however can agree to a reasonable request for postponement if it doesn’t prejudice the client’s interest
·         Comment 4: Doubt about whether attorney-client relationship still exists should be clarified by the lawyer (preferably in writing) à don’t want client thinking he is being looked after when he’s not à either you’re repping somebody or you’re not (no middle ground). work On client’s behalf until resolved.
·         Comment 5: Solo practitioners should designate a backup attorney if they die
 
[1.5] Rule 1.5 – Fees
·         Old Canon 12: Reasonableness test à used to be concerned with the small, ignorant client à now concerned with double billing corporate clients
·         How is it reasonable systemically for us to allow a system that by its own terms creates an absolute incentive towards inefficiency? 
·         1.5(a): Can’t agree to, charge, or collect an unreasonable fee or unreasonable expenses
o       Factors in considering whether fee is reasonable
§       Time/labor required, novelty/difficulty of the questions, skill required
§       Likelihood of preclusion of other employment by the lawyer à opportunity cost
§       Custom
§       Amount involved and results obtained
§       Time limitations
§       Nature and length of the professional relationship with the client
§       The experience, reputation, and ability of the lawyer
§       Whether the fee is fixed or contingent
o       Comment 1: Can seek reimbursement for in-house services (i.e., copying, phone)
·         1.5(b): Must communicate to the client, preferably in writing, before or within a reasonable time after starting, the scope of representation and basis/rate of the fee and expenses
o       Comment 2: Put the expenses in writing à reduces the possibility of misunderstanding
·         1.5(c): Contingent fees must be in writing, and must clearly notify the client of any expenses that will be charged regardless of whether the client wins
o       Comment 3: contingent fees subject to reasonableness
§       Is it a windfall based on the amount of work performed?
§