SOURCES of LEGAL ETHICS
1st Amendment- lawyer advertising & solicitation
6th Amendment- gives an accused the right to have the Assistance of Counsel for his defense (which means competent assistance)
Privileges and Immunities Art. 4
Statutes (rules about attorney-client privilege), evidentiary rules, CL, court rules and state constitutions
Legislature have power to enact statutes that regulate legal profession, but these stats are deemed to aid the judiciary and does not supercede or detract from the inherent regulatory power of the courts.
Highest State courts
State high courts (state supreme courts), exercise an “inherent authority” to govern/regulate the legal profession (most important for our purposes)
Inherent judicial power over practice of law
Lower courts ability to sanction a lawyer for misconduct
ABA- purely private org that concerns itself with activities of lawyers in US and proposes model rules and codes (they have no force of law) to be binding, the government has to adopt them, usually the highest state courts does this.
States with integrated bar, meaning that the state bar association membership is mandatory. Bar interprets and enforces rules. (CA, FL, OR, WH, WI)
Use as a guide, they have no force by its own self, instead must be adopted by a state court
Chapter I: Where Do “Ethics” Rules Come From?
Courts v. Legislators
Negative inherent powers- Inherent power doctrine has been used to invalidate direct legislative efforts to regulate the admission or conduct of lawyers, even when they don’t contradict judicial efforts. Idea that the power to regulate the bar belongs to the courts almost exclusively.
Effects of Negative inherent powers doctrine- to inhibit legislative attempts to directly control attorney conduct
Courts tolerate a certain amount of legislative activity- under the “legislature’s police powers” intending to protect the public and not directly in conflict with state SC’s authority
Conflict area: Unauthorized practice of law (ch 12). Legislators authorize non-lawyers to perform a particular legal service, and court may invalidate it on the ground that the service constitutes the practice of law, which only the courts can license practitioners.
Codes of Ethics and case law construing them are main source of rules governing lawyers.
Model Rules and Code are preceded with the word “model” because they have no authoritative weight unless adopted by some institution of the state or federal governments. Inherent powers doctrine has left that duty to the courts.
Ethics Rules as Authority
Different jurisdictions accord the Code and Rules varying degrees of respect.
Federal courts often rely on them, although they say there is no obligation to do so.
What Happens when Rules Conflict Among Jurisdiction?
Not certain—this issue is still in preliminary stages
In a multi-state matter, which state’s rules govern a lawyer’s conduct? Rule 8.5 of Code was revised in 1993 to address this with a “bright line” test.—the rules that applies is the rule of the state in
it must be reasonable. Such a limitation does not exempt a attny from her duty of competent representation.
AC relationship is a specific ex of an agency relationship, it has a definite scope (which must be clarified by the lawyer)
Client can be a government, corporation, estate, trade association, other legal entity or class. Lawyer has to be a human being, but client does not.
Class action lawyers have a duty to class members whose names they will never know- the class which is a collection of ordinary clients that is greater than the sum of its parts
B. Elements of the Client-Lawyer Relationship
Whether this relationship exists is a question of law, not professional ethics. Ethical duties flow from the relationship.
Can be formed in ways other than traditional “sign the agreement” way
Rule 1.1: lawyers must provide clients with competent representation that requires the legal knowledge, skill, and preparation reasonably necessary for the representation .
Comment 1- requisite legal knowledge will depend on the relative complexity and specialized nature of the matter; lawyer’s general experience, preparation and whether it is feasible to refer the matter to a association with a lawyer with