I. Overview And Introduction to Professional Responsibility
A. PR concerns are often different than personal ethics judgment; thus the purely moral lawyer will still have some ethical dilemmas
Sprung – General Ethical considerations
Lawyer, by following the clients express direction on whether to let defendant in case, and therefore, did the “right” thing in terms of compliance with procedural laws.
· This decision was criticized by older judges who have concept that the right thing to do is the “moral” thing to do – traditionalism.
· These judges wanted to take into consideration the moral precepts of the Canons and Code.
B. The Model Rules
i. Rules have Restatement format of relatively brief statement of rule followed by explanation and examples – Look like Black Letter Law.
ii. Rules try to eliminate the prior language of morality and instead change to regulatory mandate
iii. Rules are the current law in most of the United States, including MO – with some variations.
· The ALI Restatement is NOT the law
C. The lawyers Duties – Theories
i. The Preamble to the Code realizes that the lawyer has three main duties
(1) Duty to the client
(2) Duty as an officer of the judicial system
(3) Duty as a public citizen
· The difficulty in professional ethics is involving conflicts among these duties.
ii. Wasserstom Article – Two criticisms of practice of law
(1) Role – Differentiated position of attorney
a. Attorney in non-moral, so long as clients position is legal, lawyer’s job does not include passing on client’s morality;
b. Thus, unique nature of lawyers role requires lawyer to sanction conduct they would not otherwise sanction
c. This blames the Adversarial System as a product of the legal profession
d. Criminal – But, this system works well with the criminal defense, where the Constitutional guarantee of counsel man legitimately require the lawyer to be role-differential.
e. But in all other cases, the Adversarial System only perpetuates role differentiated behavior and, because this takes place in a forum of lawyers, its almost impossible to control.
(2) Second – the lawyer-client relationship is flawed from the outset because, as professional trained in areas of unfamiliarity to the client, that the lawyer is a member of a small, specialized group that enjoys considerable social prestige, the lawyer, therefore, possesses power and influence that the client cannot match.
· This necessarily makes the lawyer-client relationship unequal.
· Allows the lawyer to manipulate the client
iii. Simon – Models for the Profession.
(1) Libertarian Model
a. Favors procedure over substance – this allows the lawyer to take advantage of loopholes in the law that benefi
minal defense does require the lawyer to engage in adversary-challenge to state’s evidence.
vi. Traditionalism v. Tradition
a. Tradition is a faith in a system: excellence, ethics, respect for system and lawyers, accountability
b. Traditionalism is “dead faith of the living” an almost longing for the way things use to be
· When resolving a dispute between the lawyer as representative of client, officer of court, and public citizen, your should chose an alternative that does nto take you below these minimum standards of conduct.
D. The Roles
RULE 2.1 – Permits lawyer to tell clients moral, social, ethical, political consequence of the client’s actions.
· This is discretionary b/c compulsion would result in lawyer manipulation of the free will of client; allows advice on issues of Simon.
RULE 1.2(b) – Allows lawyer to represent a client without endorsing the client’s view on issues.
· This differs with Simon’s view to allow personal considerations, but comports with Wasserstrom’s notion of client control.
· The lawyers in Sprung appear to be in accord with both Wasserstrom criticisms.