Chapter 1: Pervasive Issues
I. Professional Responsibility concerns are often different than personal ethics judgments. Thus, the purely moral lawyer will still have some ethical dilemmas.
A. Sprung v. Negwer Materials, Inc. p.2
1. Counsel for appellant company erroneously sent its motion for an extension of time to answer respondent accident victim’s complaint to appellant’s insurance company instead of to the court. Consequently, respondent obtained a default judgment.
2. The trial court granted appellant’s motion to set aside the default on equitable grounds.
3. The court reversed because appellant had not filed its motion within 30 days of the default as required by Mo. R. Civ. P. 75.01 and remanded the case with instructions to treat appellant’s motion as an independent suit in equity.
4. On remand, the trial court overruled appellant’s petition to set aside the judgment.
5. On appeal, the court affirmed and held that the mishandling of the documents by appellant’s counsel and the insurance carrier did not constitute good cause for default and did not show excusable neglect.
6. The court determined that the neglect of appellant’s counsel and the insurance company was imputed to appellant. Moreover, the court concluded that respondent’s attorney had no duty to advise appellant’s counsel of the default. The court further found that respondent’s petition sufficiently stated the elements of a negligence claim.
II. Consider in light of lawyer in Sprung–the lawyer has arguable grounds for winning the appeal, however, the lawyer also concludes that the adversary’s claim will fail on a procedural issue, because of failure to comply with judicial decisions relating to party status on appeal.
A. If you don’t tell the other lawyer, the error may or may not be caught.
B. If you do tell, you (and your client) might still win.
III. What happened in Sprung,?
A. Make sure understand that the Procedural rules in force at the time of this case are NOT the same as the federal rules.
1. Under Missouri practice, when a default was given, because the defendant failed to answer, the defendant could get back into the case fairly easy–as is the case in the current Federal Rules–usually merely indicating that there was a meritorious defense was enough.
2. BUT, when a Default Judgment was obtained, as in the case because proof of damage was put into evidence before a judge, it was infinitely more difficult for the defendant to reopen the case–in most cases, not only would the defendant have to show a meritorious defense, but also that the defendant was free from neglect in presenting that defense–the real stumbling block here.
3. Here, then, it is critical to the plaintiff’s ultimate success that the time limit wherein the defendant can get back into the case relatively easily expires.
(a) The lawyer will almost certainly articulate possible results with caveats–the court could let the defendant back into the case–they could have a defense on the merits–but nothing is certain.
(b) The client, on the other hand, will definitely want to win the case and keep the $1.5 million judgment–which students should be able to point out is probably a little excessive in light of the facts.
B. Ask if there is anything in the case to suggest that the lawyer was a “bad” lawyer–one known for taking shortcuts, lying to the court or to adversaries?
1. In fact, there is nothing.
2. Indeed, this lawyer had been active in lawyer disciplinary enforcement and was involved in numerous Supreme Court Committees.
C. The lawyer followed civil procedure rules for the client, obtained valid default judgment, then learned a lawyer-friend actually represented the defendant.
D. Lawyer sought client’s advice on whether to permit the defendant in the case, it being anticipated that defendant might have a legitimate defense.
E. Lawyer took client’s directive to not tell defendant or attorney.
F. Did Lawyer do the “right” thing?
1. How do you define “right” in this context?
2. As Supreme Court of Missouri finds, lawyer did the “right” thing in terms of compliance with purely procedural law.
3. Additionally, lawyer followed client’s express direction, thus doing the “right” thing from the client’s perspective.
4. Several of the judges, however, state or imply that the lawyer has a higher obligation.
IV. Croft, and Notes following:
A. Largely a historical piece dealing with professional rules in this country.
B. Note development:
1. Series of essays like those of Sharswood and Hoffman.
2. Developed into Canons in 1908 and by 1920 all but 13 states had them.
(a) Canons not enforceable rules, but evidence of practice norms.
(b) Note illustration from Canon 32–Can the views of some of the Sprung judges arise from the language this Canon?
3. Canons were interpreted by advisory opinions and developed into a body of enforceable obligations.
4. Changed into Code of Professional Responsibility with Canons, Disciplinary Rules and Ethical Considerations in 1969.
5. Further development began in late 1970’s and resulted in Rules of Professional Conduct (Model Rules).
(a) Note the last paragraph of this piece–these rules are not ethics but instead a set of regulatory guidelines
(b) If they are regulatory guidelines, what does that tell us?
(c) It ought to tell us that the rules should not be violated.
6. They are thus a statement that below this level, we won’t go.
7. Use that in conjunction with Preamble Note –The lawyer is a representative of clients; an officer of the legal system; and a public citizen.
8. And Preamble Note –virtually all difficult issues of professional responsibility involve conflicts between or among those roles.
9. Note following Croft: Unstated in this Note is that the Current law in many jurisdictions are the pre-2002 ABA Model Rules of Professional Conduct; In Missouri, for example, these provisions are the CURRENT LAW–these Rules are the second set of Rules listed in most statutory supplements.
10. Beginning at the end of the last century, however, two things happened.
(a) First, in 1997, the ABA appointed a new committee to look at the Rules to determine if changes are necessary.
(b) That committee was known as the Ethics 2000 Committee and their recommendations are now before most states–their report is in your supplement as the “current” or 2003 Model Rules–they are first set of Rules listed in most supplements.
(c) These rules are the CURRENT ABA Rules–having been approved in both 2002 and as a result of amendments in 2003. They have been forwarded on to the states for adoption, but few states have yet to complete this process.
(d) The Second thing that happened at the end of the last century is in Note 2 following Croft;, the American Law Institute appointed a group to come up with a Restatement of the Law Governing Lawyers–
That group has finished their work and the ALI Restatement is contained in some supplements.
While it is highly instructive, it is NOT the law in any state and is not likely to be soon.
But, the provisions of the Restatement will have an affect on state courts and you really need to look at its provisions–particularly where they differ with the current rules.
V. Not mentioned in Croft, but a further defining element for us are Ethics Opinions, both formal and informal–adopted by ethics committees of both ABA and states–they are not the law–but are highly influential–they are mentioned in Note 3 following Croft–you can see they are adopted by the ABA, state bar associations, even some local and specialized bar associations–such as the patent bar.
VI. When current Rules are viewed as a “regulatory mandate,” what are lawyer’s obligation in Sprung?
A. Review of the Notes following Croft, beginning with Note 4 help you work your way through this.
1. First, look at Rule 1.6–is information learned in the course of representing the employer likely to be considered confidential within the meaning of Model Rule 1.6?
2. To reveal that information to the other side then would require that one of the listed exceptions exist–and none do.
3. Then, look at Rule 1.2(a) requiring substantive decisions within the relationship to be made by the client, but only requiring the lawyer to consult with the client regarding the “means” of accomplishing these objectives; Is the decision to tell the lawyer on the other side “means,” particularly if it means the client will likely lose?
4. Former Canon 32 indicates that the lawyer “advances the honor of the profession and the best interests of” the client when the lawyer provides advice that suggests “exact compliance with the strictest principles of moral law;” BUT that only requires providing Advice–it does not require the lawyer to disavow the client’s wishes–We’ll talk more about morality in just a moment.
B. Questions 7 and 8 at the end of the Croft article lead into the Wasserstrom article; Where does your conscience fit into what you do on behalf of your client and, if your conscience dictates that you do something, can or should you use your forensic ability to convince the client that your objectives should be those of the client? Suppose you simply cannot stand what the client wants to do?
VII. Wasserstrom article and Notes following,
A. Wasserstrom offers two criticisms of practice of law.
1. What are they?
(a) Role-Differentiated position of attorney.
Attorney is Non-Moral–so long as client’s position is legal, lawyer’s job does not include passing on client morality.
Thus, unique nature of lawyer’s role requires lawyers to sanction conduct they would not otherwise sanction.
Wasserstrom appears to blame part of his criticism on the legal profession, primarily because rules operate within the Adversary System.
Does Wasserstrom think this system has a place in any area of the practice of law?
Wasserstrom sees this system working well in criminal defense, where the Constitutional guarantee of counsel may legitimately require the lawyer to be role-differential.
In other cases, however, the Adversary System only perpetuates role differentiated behavior and, because it takes place in a forum uniquely populated by lawyers, this role differentiation is virtually impossible to control; the result is that the client does not have the ability to understand what is going on in a matter in which a lawyer is used.
(b) that the lawyer-client relationship is flawed from the outset because the lawyer, as a professional, is trained in areas unfamiliar to the client, that the lawyer is a member of a small, specialized group that enjoys considerable social prestige, and that the lawyer therefore possesses power and influence that the client cannot match.
This makes the client inherently unequal.
It allows the lawyer to manipulate the client.
Study to here.
VIII. First, do any of Wasserstrom’s criticisms find their way into the current Rules?
A. Note 1 following Wasserstrom–look at Rule 2.1–is this an attempt to add a morality element to an otherwise amoral activity? Would this appease Wasserstrom?
B. And consider again Rule 1.2(a)’s provision that the client controls the objectives of the representation, while the lawyer controls only the means–is this the influence of Wasserstrom? Attempting to prevent the lawyer from using the lawyer’s forensic ability against the client?
IX. Consider Wasserstrom in conjunction with the excerpt from Simon, Note 2, following Wasserstrom.
A. Simon says that most critics see but two models for the profession.
1. The Libertarian model.
(a) Favors procedure over substance.
(b) Allows lawyer to take advantage of loopholes in the law that benefit client.
(c) Does not favor or permit law-breaking; rather allows unfettered use of laws arguably legal, but sometimes contrary to legislative intent.
2. The Regulatory model.
(a) Favors substance over procedure.
(b) Basic duty of lawyer is to assure decisions on merits of disputes.
(c) Thus discourages use of “technicalities” to thwart decision on merits.
B. Both approaches, according to Simon, do not permit discretion.
C. Simon advocates a third, “discretionary approach;”
1. Lawyer can consider all relevant circumstances of a particular case and then take those actions most likely to promote justice.
(a) This allows lawyer to consider the relative merit of any claim.
(b) Both of the particular claim itself and in terms of how allocating time on that claim will prevent the lawyer from allocating time to other clients.
d this market-morality to become an ethic of its own.
(a) In that regard, Shaffer would support Simon’s apparent opposition to the Regulatory approach.
(b) Shaffer says that making the client a better citizen is not irrelevant; thus supporting Simon’s discretionary approach.
XIV. In addition, Terrell & Wildman partially help.
A. Note distinction between “Tradition” and “Traditionalism,”
1. Tradition is a faith in a system.
2. Traditionalism is “dead faith of the living,” a longing for the way things use to be.
3. Which of these are the dissenting judges in Sprung actually exhibiting?
4. If it is Traditionalism, then they are upset that lawyer did not do things the way they used to be done.
5. If it is Tradition, then they are upset that lawyer did not keep up with the spirit of certain essential, timeless principles upon which all lawyers can, and should be judged.
B. these authors suggest the following “traditions;”
2. Ethic of integrity.
3. Respect for the system.
4. Respect for other lawyers.
6. Adequate distribution of legal services.
C. In Note 1 following this excerpt, are Judge Blackmar’s thoughts those of “tradition” or “traditionalism?” Is he longing for his perception of the practice of a bygone era? Or is he arguing that a lawyer under Rules of Professional Conduct must sacrifice the interests of a client in favor of assisting a fellow lawyer who erred?
D. Before finally concluding any thoughts on the lawyer in our problem, or the lawyer in Sprung, consider them again in light of Morris Dees, who is virtually universally respected as a “good” lawyer–and you can see what he did to help clients in the passage in the Note 2 following Terrell and Wildman.
1. Note 3 following Terrell and Wildman ask students to assume lawyers for the Klan have committed a procedural error akin to that committed by the lawyer in Sprung. It further asks students to assume that Dees meets with his clients and tells them about the error and the consequences and wants to know if the clients want him to tell the Klan lawyer so they might get back in the case.
2. One can only assume that even the judges in Sprung would be hesitant to criticize Morris Dees for doing exactly what the lawyer did in Sprung.
(a) If those judges would agree with Dees’ actions, why?
(b) Certainly, the Klan is not as likeable a client as the parties in Sprung, even though the erring party there was a corporation.
(c) But, if the students think the judges would agree with Dees’ conduct, while still disagreeing with the conduct of the lawyer in Sprung, don’t we have our answer to the tradition/traditionalism question? Aren’t the judges hoping the lawyer in Sprung would not treat the judges the same way as he treated his adversary if the judges were representing a client, had a bona fide case and made an error? And isn’t that traditionalism?
Chapter 2: The Legal Profession and the Practice of Law
I. Section A. Judicial Regulation and Doctrine of Inherent Power.
A. The Problem’s Question asks who will win a suit in which a public entity tries to discharge a lawyer, without cause, in spite of a law that provides for termination only upon good cause.
1. Generally, hiring and firing of public employees is a matter for the legislature
2. As a result, usually controlled by statute.
B. Succession of Wallace p.42
1. The estate executrix contended that § 9:2448 was unconstitutional because it conflicted with La. State Bar R. Prof. Conduct, art. XVI, Rule 1.16(a)(3), and the power to regulate all facets of the practice of law belonged to the state supreme court.
2. The state supreme court held that the state legislature could not have enacted valid laws defining or regulating the practice of law in any aspect without the state supreme court’s approval or acquiescence.
3. The state supreme court held that La. Rev. Stat. Ann. § 9:2448(B)(2), which provided that an attorney designated by a testator in his will could only be removed for just cause, was in direct conflict with La. State Bar R. Prof. Conduct, art. XVI, Rule 1.16(a)(3). Rule 1.16 (a)(3) gave a client the absolute right to fire a lawyer in whom he had lost faith or confidence. Furthermore, the state supreme court could not have ratified § 9:2448 as being helpful or beneficial to the exercise of its inherent judicial power and responsibility.
C. Succession of Wallace appears to reject this general rule when dealing with lawyers.
1. State statute permitted a person to designate, in their Will, an attorney for the estate and then prevented the Estate from discharging that lawyer without good cause.
2. This was in some conflict with rules governing lawyers, Rule 1.16 which requires a lawyer to withdraw when discharged.
3. The state statute was a legislative response to prior decisions refusing to allow a Will to speak on the issue without legislative permission.