Professional Responsibility/Legal Ethics Outline

Legal Ethics
Professor Niehoff
niehoff@butzel.com
 
 
Introduction: Philosophy, History, Demographic, Interpretation
 
Blackburn, Being Good, Parts I, II and III
Introduction
Part I – Seven Threats to Ethics
                                          i.    The Death of God
                                         ii.    Relativism
                                        iii.    Egoism
                                        iv.    Evolutionary Theory
                                         v.    Determinism and Futility
                                        vi.    Unreasonable Demands
                                       vii.    False Consciousness
Part II – Some Ethical Ideas
                                          i.    The Greatest Happiness of the Greatest Number
Part III – Foundations
                                          i.    Reasons and Foundations
                                         ii.    Being Good and Living Well
                                        iii.    The Categorical Imperative
                                        iv.    Contracts and Discourse
                                         v.    The Common Point of View
                                        vi.    Confidence Restored
 
Theme: The Rules create tension between personal and professional identity
The Rules sometimes require As take action that would otherwise be unethical
EX: Cannot reveal C’s confession of killing girl, but you would expect a non-lawyer friend of D to reveal the information
Ironic given that one purpose of the Rules is to dispel public criticism for being unethical
The Rules deprive individuals of ethical autonomy
Blackburn Argument: Must have rules, even if they differ in content among cultures
“Moral Relativism” complicates the debate about whether an action is moral (one culture may say yes, and another may say no because it is relative to how you define moral)
There are only subjective truths
Warrior Codes: Purpose is to restrain warriors for their own good and the good of others
A necessary tool to bring clarity and draw certain lines
Those that may find themselves in positions of great responsibility and stress need an ethical code to make sense of chaos and delineate what is and is not permissible
Lawyers have great power and are self-governing
Analogy to Law: Lawyers have an ability to abuse their power, and a code of ethics is necessary to reign in this temptation
The Result: A code of ethics is necessary because of the power of the profession, although it may not make the public love lawyers and it may deprive individuals of ethical autonomy
Theme: Lawyers are in a self-regulating profession
 
Preamble to the Model Rules
A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
As a Representative of Clients:
                                          i.    Advisor – provides client with informed understanding of client’s legal rights and obligations and an understanding of their implications.
                                         ii.    Advocate – zealously asserts client’s position
                                        iii.    Negotiator – seeks result advantageous to client but consistent with requirement of honest dealing with others.
                                        iv.    Third-party neutral – helping parties resolve disputes (1.12, 2.4)
A lawyers should be competent, prompt and diligent.
A lawyers should use the law only for legitimate purposes and demonstrate respect for legal system and those who serve it.
As a Public Citizen:
                                          i.    seek improvement of the law
                                         ii.    access to the legal system
                                        iii.    administration of justice
                                        iv.    quality of service rendered by the legal profession
                                         v.    cultivate knowledge of the law beyond its use for clients and employ the knowledge to reform the law and strengthen legal education.
Virtually all difficult ethical problems arise from a conflict between lawyers responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.
The profession is largely self-governing.
Self-regulation helps maintain the profession’s independence from government domination.
The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.
Layers play a role in the preservation of society.
Scope:
                                          i.    May = permissive and define areas where lawyer has discretion under the rules
                                         ii.    The rules are part obligatory and disciplinary and partly constitutive and descriptive in defining the lawyer’s profession al role and also in defining the nature of relationships between the lawyer and others.
                                        iii.    Rules are reinforced by peers and public opinion and finally through disciplinary proceedings.
The rules are designed to provide guidance to lawyers and provide a structure for regulation conduct through disciplinary agencies. They are not a basis for civil liability.
 
Preamble and Preliminary Statement to Model Code (1981)
Continued existence of a free and democratic society… (highly ambitious). Code is designed to be adopted by appropriate agencies as an inspirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required minimum. There is discussion of dignity of the profession and the role of lawyers within society.
Canons: statements of axiomatic norms in general terms that express the standards of professional conduct expected of attorneys.
Ethical Considerations: aspirational and represent objectives to which every member of the profession should strive They are principles a lawyer can rely on for guidance.
Disciplinary Rules: mandatory in character. They state a minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. No provision for civil liability or penalties.
 
Preamble to Canons of Professional Ethics
Want to develop the system of justice to a high point of efficiency so that public shall have absolute confidence in the integrity and impartiality of the administration of justice. Courts and the departments of government rest upon the approval of the people.
The canons of ethics are a general guide and the enumeration of particular duties should not be taken as a denial of the existence of others.
 
 
General Statements:
a.     Conscience: Are we born with it?
b.     Ethics: determining if something is right or wrong
                                          i.    Utilitarianism – The number of people affected by a decision – consequential
1.     Greatest good for greatest number
                                         ii.    Virtue Ethics – character of the person committing the act. Most legal ethics rules follow this system of thought.
1.     How we thing of individual virtues as defining whether one is engaged in ethical conduct
                                        iii.    Categorical Imperative – universalization of the conduct; would it be ok if everyone did it (Kant)
1.     People as ends not means
                                        iv.    Relationship – relationship between the parties involved
1.     When you make decisions everyday, it is in reference to one of the above models. The ethical rules center around these rules.
Mountain climbers make the decision to turn back while they are still in base camp. If they make the decision to turn back at a particular point while on the mountain, their decision is compromised. The same pattern works for ethics. You need to prepare and bring a lot with you while you are at base camp.
We should think of the rules as virutes; rules try to fashion you as a person with a collection of virtues – it is not a “thou shalt” not list.
 
History of the Rules
Before the Code
                                          i.    Before 1900 few states had adopted codes of legal ethics (#1 – Alabama in 1887)
                                         ii.    There were treatises that were more like books on etiquette
                                        iii.    There was no national, uniform or semi-uniform code of ethics
                                        iv.    Theodore Roosevelt gave a speech a Harvard regarding the large trusts. He felt corporate lawyers were representing these trusts with