Professional Responsibility Outline
I. What Are “Ethics Rules” and Why Do They Matter?
A. “Professionalism” and the Economics of Ethics
1. Professional Responsibility is built on two separate areas of the law
a. Law of agency
b. Fiduciary duties: this overlaps with agency, but this involves a degree of trust
2. Professionalism: distinguished from other occupations in that professions tend to regulate themselves.
a. Professions regulate themselves because:
1) assymetry of information (unless one knows the profession, then one can’t determine whether certain conduct is right or wrong)
2) Aura of superiority
3) Something “closed” about professions
b. There is a current concern that the legal profession is moving away from professionalism toward “commericialism/business”
1) There are 5 reasons for this concern
i. Concern with profit
ii. Concern with not doing what is “right” [the idea that something involving $ is wrong] iii. Self-interest vs. the client’s interest
iv. Access to legal services – if law is a business, then maybe not everyone can afford to get a lawyer
v. Problems of regulations (not doing what is right)
2) What distinguishes a profession from a business?
i. Special training is required for a profession
ii. Because of the special training, there is also special expertise; thus, the client can’t accurately evaluate the quality of the service they receive
iii. Because of the assymetry of knowledge, clients must trust the service provider. This means that there is burden on lawyers to act in the best interest of the client, especially when the client’s best interest contradicts the best interest of the lawyer.
iv. Professionals typically regulate themselves because of the knowledge factor (see above)
3) It seems that many “businesses” like that of an auto mechanic contain the four factor above, yet auto mechanics don’t have a “professions.” Still, law is highly self regulated because of the elitist, closed tradition of law: an “us-them” attitude.
4) Clients can perhaps be harmed by the idea of professionalism
i. Law is self regulated, and so how likely is it that one lawyer will turn another in? “We protect ourselves” attitude.
ii. To the extent that lawyers are a closed group, there is less competition, so maybe there is lower quality of goods at higher prices (like a monopoly)
5) Newcomers to the profession can be hurt by the closed elitism of the good old days
i. A monopoly has barriers to entry
ii. Idea of class bias: traditionally, lawyers are white sexist asshole men
6) The bar is closed. Is there any alternative to lawyers’ self regulation?
i. Perhaps we could have a mixed regulatory group of lawyers and lay people. Lay people might be in a position to provide an aura of common sense and potentially have a consumer viewpoint, plus if lay people were involved in decisions the public might be less suspicious. This idea has more advantages than disadvantages.
ii. No regulation at all: just leave things to the market. But this doesn’t address the problem of the public not knowing whether service is good or bad, and the problems of confidentiality. Plus, there would be a redundancy of time and effort if one had to individually research an ethical issue each time. Plus, at least the presence of reguation shows the public that we care.
iii. More regulation, like a federal regulatory agency.
3. There is a conflict between ethical behavior and self-success behavior
a. Three theories exist concerning legal ethics (in B.’s opinion, why lawyers will behave ethically)
1) Wal-Mart theory of legal ethics: lawyers act ethically because it’s good for business and it shows good will. They will behave in a way to maximize their longterm profits. What is good for business is good for the client and is thus good for society.
i. Exceptions to this theory:
– Presumption that people can act economically rationally: sometimes people aren’t capable of being rational (because of drugs, emotions, etc.)
– Sometimes lawyers must make a judgement with the client being kept in the dark; thus, the client can’t protect herself and can’t monitor the lawyer
2) Lawyers are people theory: Because lawyers are people, they want success and this is an incentive. Maybe some lawyers are “bad” but this is true with any profession. Lawyers are no more likely to be liars than anyone else.
3) Legal ethics is not an oxymoron theory: There is nothing inherently wrong with being a lawyer
i. Lawyers are agents who act on behalf of principals. If the principal asks the agent to do something wrong, the act itself is not good but that doesn’t mean the lawyer herself is bad.
ii. Lawyers provide a service for $. This suggests that both parties believe they’ll be better off because of the transaction. When a lawyer serves the client on a contingency fee basis, it’s true that she might make a lot of money, but she is taking a risk, too.
iii. Lawyers are a transaction cost. They are middle people and you have to pay more $ when dealing with middlemen. At the same time, lawyers also add value to the transaction, as they are saving the client time and $. There is efficiency and certainty when going to a middleman. Lawyers provide services which improve society: they save other people who do good things time, and they are involved in the enforcement of rights in a better way than the average person.
b. There is a public view that some lawyers are “bad” because they aren’t doing the “right” kind of legal work
1) Remember that this view assumes that all poor people are nice and all CEOs are bad.
2) Also remember that no other profession holds the belief that a worker who makes less $ is better than a worker making more $: why make this claim about lawyers but not other professions?
B. Source of the Rules
1. There are four major sources of the regulation of lawyers
a. Constitutional law (federal and state)
1) Federal Const: 1st A., 14th A., 6th A., 5th A., etc.
2) State Const.: often these are the source of authority for a state bar to exist. The state const. explicitely or implicitly names the highest court of the state, which is authorized to promulgate the rules of the bar and attorney conduct, and the high court might also give this job to the state bar. Usually, the state constitution makes explicit the rules regulating lawyers or implicit through the inherent powers doctrine.
c. State bar association committees: they promulgate the bar rules/ assist the court and also interpret the bar rules by providing advisory opinions (lawyers can thus get advisory opinions beforehand). BUT advisory opinions aren’t binding precedent.
d. American bar association: it has no authority per se, but it articulates the “model code” and it has committees which study these model code rules. These model codes are adopted by the states, but they adopt them with lots of differences. The ABA is less significant than it once was.
2. Sources of the rules in Texas
a. U.S. Constitution
b. State Constitution
c. Texas Supreme Court: it isn’t explicitly a source of authority, but Art. II, §1 of the Texas Constitution implicitly gives it power. Texas courts have interpreted this power to provide inherent powers that are a source of regulation authority (administrative powers). The TX S. Ct. delegates a variety of tasks to the Tx state bar, including the maintenance of professional responsibility standards and individual cases.
d. State Bar of Texas: is delegated authority by the Texas Supreme Court. It promulgates rules and and administers individual proceedings.
e. ABA: Promulgated the first codes
1) Ethics Canons
2) Then Code of professional responsibility (1970)
3) Model rules of professional conduct (1983): the current rules
4) Soon, a new revision of the Code will be out
f. ALI: treateses form for the states
3. Some lawyers never face choice of law problems becuase:
a. He practices only in one state and the client is only in one state and they are in state court
b. There are two obvious contenders on which states’ law should govern, and the professional responsibility rules for the two states are identical
4. Many lawyers face too big problems when dealing with the rules
a. They are admitted to the bar of more than one state, and the two states have different rules. Which rules should they follow?
b. They are admitted to the bar of one state but are doing work in another state. There is a conflict of rules. How should they decide what to do?
5. There are four possibilities for these choice of law problems
a. Follow the rules of the state where you are admitted to the bar, but this doesn’t solve problem #1 (above). This might work if you are admitted to the bar of just one state.
b. In case of litigation/ court proceedings, look to the rules where the court is located.
1) Problems with this option:
i. If in federal court, it’s not clear that the state rules should be used
ii. Many matters aren’t actually litigated
c. Location of the client: this is good for individual clients, but if the client is a corporation it is problematic, and it’s problematic if you have multiple clients . Plus, in a diversity action, which state?
d. Effect of the atty’s behavior: where is the impact of the atty’s actions? This might work with the solicitation of clients. The problem is, what if there is no clear place where there is an effect, and what if there is more than one place?
6. MR 8.5 vs. TxR 8.05
a. MR 8.5:
1) Broken into 3 parts
i. If a lawyer is admitted in a jurisdiction, then he is subject to those rules
ii. If his conduct involves a court proceeding, we look to the rules of the jurisdiction where the court sits, unless the rules of the court say otherwise
iii. If the lawyer is licensed in more than one jurisdiction, we look either at where he principally practices (problem if he practices equally in 2 jurisdictions), and we consider if the conduct clearly and predominantly has its effect in another jurisdiction
2) MR 8.5 doesn’t solve some problems, though
i. Which jurisdiction is predominant?
ii. What if the jurisdiction has different conflict provisions from R. 8.5? [One important function of local consel with big transactions is you can point to the local counsel and say they were responsible for certain problems] iii. Distinction between being licensed in more than one state and being licensed in just one state under this rule; thus, the very same behavior can be treated differently within the same jurisdiction just because the lawyer is licensed in more than one state.
b. TxR 8.05
1) Some distinctions from MR 8.5
i. R. 8.05(a): If you’re a Tx lawyer who does bad things under the Tx rules in another state, you are still in trouble under the Tx rule. This provision doesn’t solve a conflict problem: what if you a licensed in Tx and the other state?
ii. R. 8.05(b): Deals with written solicitations and ads. If a lawyer makes an ad/ solicitation aimed toward clients in other jurisdictions, and breaks Tx rules doing so, he is still in trouble. The purpose of this provi
i. Bar can prohibit ads that are false, deciptive, or misleading
ii. Bar can prohibit ads that advertise illegal transactions
iii. Some regulation as to the quality of service may be appropriate (not easily subject to verification by consumers)
iv. Restraints on in-preson solicitation are okay
v. Warnings or disclaimers to prevent misleading the public where the public is likely to be misled are okay
vi. Reasonable time, place, and manner restrictions
vii. Need special regulations with regard to broadcast media (this includes the internet)
b. Edenfield v. Fane (1993, U.S. S.Ct.)
1) In-person solicitation of clients by CPA’s is okay.
n CPAs aren’t trained in the art of persuasion
n Clients of CPAs are usually sophisticated business people
n Prospective clients of CPAs probably already have had a CPA before (thus, have some basis for comparison)
n Manner of solicitation is condusive to rational decision-making
n Invasion of privacy isn’t a concern
c. Zauderer v, Office of Disciplinary Counsel (1985, U.S.)
1) Ads which give substantive advice/ information on specific legal problems needn’t be outright banned. (print ads + advice). If the ad mentions contingency fee agreements, the atty should also include warnings and disclaimers.
2) Ct. extrapolated 5 principles from Ohralik when deciding this case, and found these weren’t problems here:
ii. Invasion of privacy
iii. Undue influence
iv. Outright fraud
v. Regulatory difficulties because of lack of visibility
3) Prophylactic prohibition of print ads + advice isn’t needed given the 5 morals of Ohralik:
i. No pressure on people to answer right away
ii. Because of the format of print ads, one can read them on their own time. Print ads are conducive to deliberation and client choice.
iii. Ads like this will cause more litigation, but the Ct. feels this is a good thing as filing suit isn’t per se evil.
iv. Don’t need broad prophylactic rule as there is no enforcement problem. Bar can require ads to be submitted and reviewed before publication, as is required in TX (submit to bar before or at the same time it’s promulgated: the bar must give an answer in 25 days)
4) O’Connor dissent – B.s doesn’t agree with her. O’Connor feels that allowing freedom in these areas is problematic because of the possibility of confusion/ deception (affecting client’s judgment), plus atty’s interest in $ might cloud the advice they give. She seems to see Zauderer the same as Ohralik, but this is illogical, says B., b/c people in these ads are told good advice and it’s ok for people then to call and make an appointment. She puts weight on other ways attys can get clients, but B. wonders how.
d. Shapero v. Kentucky Bar Assn. (1988, U.S.)
1) An outright ban on targeted mailings isn’t needed, but these mailings should be reviewed by a committee.
2) Ct. feels that there is a troublesome distinction b/t Shapero and Zauderer, as these ads are more efficient and more likely to go to the “right” people. There’s also the problem of people being susceptible to undue influence.
3) Tx requires that these mailings tell people how you got you info. about them, and also the word “advertisment” must be on the envelope and the paper inside, and it can’t look like a legal document. All of this must be submitted to a committee.
4) O’Connor dissent: Based upon the “substantial gov’t interest” prong of the Central Hudson case – she feels that there is a substantial gov’t interest in banning targeted mailings by attys
n “Applying [the Central Hudson] test… it is clear to me that the states should haave considerable latitude to ban advertising that is ‘potentially or demonstrably misleading,’ as well as truthful adveritising that undermines the substantial gov’t interest in promoting the high ethical standards that are necessary in the legal profession.”
n Problem with atty’s “selfish pursuit” or “economic success.” Law should be a public service.
n A ban will be a concrete reminder to attys that there trade is not a regular trade like any other: Restrictions “preserve the legal profession as a genuine profession.”
5) After this decision, in Florida Bar (1995), the Ct. held that a Fla. law saying that atty’s that solicit accident victims or survivors by mail are prohibited from doing this for 30 days after the accident. Federal law now says the same thing.
i. B. feels this is reasonable because: