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Professional Responsibility/Legal Ethics
University of South Carolina School of Law
Crystal, Nathan M.

Problems in Professional Responsibility Outline
Crystal, Fall 2004
 
I.                   Intro to PR
A.     The Foundations of PR: virtually all issues facing lawyers arise from the tension b/w a lawyer’s obligations to client, legal system, and their personal values and financial interests
1.      Lawyer as a Fiduciary: owes duty of competence (1.1, 1.3), loyalty (1.7, 1.8(a), 1.9), and confidentiality
2.      Lawyer as an Officer of the Court Functioning in an Adversarial System of Justice: duty to entire judicial system to maintain its integrity (this is separate form any duties owed to client) (3.3, 3.5, 3.6)
3.      Lawyer as a Peron w/ Personal and Financial Interests
4.      In Re Paulter: prosecutor impersonating a pubic defender to get a murder suspect to surrender was disciplined for violating 8.4(c), which says it is prof misconduct to engage in misrepresentation, and 4.3, which prohibits giving advice to an unrepresented person, even though prosecutor was in a tight spot and wanted to help bring murderer to justice.
B.     Resolving Tensions in Lawyer’s Role: Complying w/ Rules and Stds of Prof Conduct and the Law Governing Lawyers
1.      Prof Rules and Stds: ABA Code of Ethics (precursor to Model Rules), Ethics Advisory Opinions (persuasive, but not binding), Specialized Codes, and Practice Norms
2.      Law Governing Lawyers
a.       Court Proceedings
a)      Disciplinary,
b)      Malpractice,
c)      Disqualification motions in civil or criminal actions
d)      Sanction motions as part of an underlying case
e)      Criminal prosecutions
b.      Statutory Law: less significant, involves lawyers entering or leaving govt service, disqualification of fed judges,
c.       Administrative Rules
d.      Restatement of Law Governing Lawyers
3.      Research Tools
4.      Limitations of Prof Rules and the Law Governing Lawyers and the Need for a Philosophy of Lawyering: many PR questions don’t have a black and white answer, lawyers must exercise sound jmt in resolving these questions (must develop an approach to handling questions when the rules do not provide answers or offer only general principles)
C.     Going Beyond the Rules: Client-Centered Lawyering, Moral Values, Principles of Professionalism, and Other Sources of Guidance for Lawyers
1.      Philosophy’s of Lawyering:
a.       Client-Centered: client and attorney’s interests are separate, purpose is to pursue what client wants, only limitations are PR rules and law (if the question is doubtful, action will be justified)
b.      Morality: attorney is morally accountable for actions taken on behalf of clients, so cases can be turned down if morally indefensible
c.       Social Value: grounded in norms expressed in social institutions, more obj and justified than moral values
2.      The Moral Accountability of Lawyers
a.       Amoral Lawyer: lawyer has no moral responsibility whatsoever for representing a particular client or for the lawful means usd or the ends achieved
b.      Moral Control of Client: lawyer’s choice of client is no

rial weighted to protect the innocent, even if some guilty get off; lawyer as advocate
a.       1.2(d): lawyer SHALL not counsel client to engage, or assist client, in conduct lawyer knows is crime or fraud, but may counsel on consequences
b.      3.1: lawyer SHALL not defend an issue unless there is a nonfrivolous basis in law and fact for doing so, which includes a good faith argument for extension of the law. A lawyer defending a crim case may nevertheless so defend to require that all elements of the case be established
2.      Competency of Defense Counsel and Legal Fees in Criminal Cases
a.       1.1: lawyer SHALL provide competent rep w/ legal knowledge, skill, thoroughness and preparation reasonably necessary for the rep
a)      Sandstrom: atty liable b/c failed to take any pretrial depos, failed to conduct proper investigation, failed to timely challenge admissibility of ev, failed to present recording to impeach prosecution witness, failed to become familiar w/ phys evi in case
Strickland v. Washington: to determine ineffective assistance of counsel, client must prove 1) that counsel’s performance fell below an obj std of reasonably effective assistance (looking at norms of profession) and 2) that Δ