← Always remember: We are considering ethics violations. Malpractice is a separate issue.
← What are rules of professional conduct? (ABA Model Code of Professional Responsibility)
· Just about every state bases their rules on the model rules.
← Which model rules do you have to follow?
· The rules in your state and
· Every other state in which you are participating in litigation.
o Ex) You get an attorney-client privileged document from the other side on accident. MS rules might say return it immediately, while Illinois, where the litigation is, might say, keep it, use it.
← A complaint can be brought against you for violating the rules by just about anybody.
← What is the restatement of the law governing lawyers?
· A bunch of smart people get together and say what they think the law is/should be in a particular area.
← Ethics Opinions:
· You can send a letter to the state bar questioning the ethics behind a particular situation.
← “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”
← Chapter 1: Lawyers, Role, and Law (p. 3)
← LAWYERS AND ROLE
· What is the role of the lawyer?
· What is the relationship between the legal role of a lawyer and a lawyer’s morals?
· What is the relationship between the clients goal and morals and the lawyer’s role?
← What is the role of the Lawyer?
· P. 3 Freedman and Smith, the role of the lawyer is:
o To respect the individual autonomy of the client and educate him so that he can make the best decision.
o Therefore, it’s the lawyer’s job to respect his client’s autonomy and do whatever he can to maximize the client’s autonomy through zealous representation.
o It would be immoral for a lawyer to make a moral judgment on the client’s decisions. (Moral judgments should be client-driven.)
o With the adversarial system, the most correct side will win when everyone is zealously represented.
· Limits according to Freedman and Smith:
o The bounds of the law.
o If your own moral beliefs will not allow you to advocate zealously for your client, then you need not take the case.
· Problem with Freedman and Smith:
o There is no one morally correct answer.
· P. 6 According to Rhode:
o A lawyer needs to take into account his/her own personal moral judgment. These are actions/decisions of the lawyer. You can’t put everything on the client.
o Problem with the adversarial system according to Rhode: The two sides are often mismatched. A zealous solo practitioner really doesn’t stand much of a chance against ten zealous practitioners.
o She feels that the zealous representation model works in the criminal setting but not in the civil setting due to the fact that civil work (estate tax planning, etc.) does not pit their client against a hostile world as it does in criminal cases (convict v. government)
o Additionally, if a lawyer gives up his own morals in practice, it could spill over into his personal life.
o Also, if a lawyer gives up his own morals in practice, there is a concern of him/her nullifying the law.
o Rhode argues that any time you face inner moral turmoil concerning whether you’re being fair to the other side, your ability to best represent your client is compromised.
← PROBLEM 1-1 Argument for filing a claim after the SOL has run:
o It’s in the best interest of the client, and it might slip through. Additionally, the statute of limitations is sometimes unjust; people are often unaware that they even have a claim until it’s too late.
· Argument against filing a claim after the SOL has run:
o Increasing litigation, possibly against an unrepresented defendant, could be considered morally wrong.
§ Basically, full disclosure between the attorney and client is critical as well as the merits of the client’s claim in determining what should actually be done.
← PROBLEM 1-2 Argument for pointing out a mistaken belief the other side:
o mistake in the contract could be raised by the other side. Therefore, as an attorney, you should talk to your client about disclosing the information to the other side. Point out to your client that this will cause even more litigation. This is likely the answer that Freedman and Smith would give. Additionally, Rhode would say it’s not exactly moral to close a deal when you know the other side has a basic misunderstanding about the facts.
← Law and the legal system, professional rights
← Client’s values dominate
← Joint moral accountability
← Lawyer’s values dominate
← Deontological, duties to and rights of clients
← Respect for clients, concern for outcome as well as professional relationship
← Utilitarian, greatest good results from expert legal advice
← View of Law
← Malleable means to pursue client’s desires
← Moral norms that apply to human behavior
← Means to promote social stability and order.
← Chapter 2: Judicial and Professional Regulation of Lawyers (p. 23)
← BAR ADMISSION
← Model Rule 8.1 Be truthful in bar application.
← Why is Bar Admission such a big deal?
· Each individual state bar makes limits.
· We want to put a limit on the kind of people who can:
o File complaints on behalf of clients
o Serve discovery requests
o Answer interrogatories
o Respond to requests for admissions
o Receive pay for legal advice
o Represent a party during transactions
← Most states have requirements to become a licensed lawyer:
· Pass Bar/MPRE
· Some states don’t require the bar.
o Wisconsin, Marquette, you’re automatically admitted to the bar.
· Good moral character
o Moral character is important because we grant lawyers many powers which should be carefully used.
Criticism: the good moral character requirement