Professional Responsibility Outline
I. What are “Ethics Rules” and why do they matter?
“Professionalism” and the Economics of Ethics:
What do we call this class? Various names in the past. (PR largely b/c of tradition).
• Law Governing Lawyers: comfortable. We know laws, and therefore can know our responsibilities.
• Professional Responsibility: “Profession!” Idea of self-regulation; only those trained professionals know what works. Aura of superiority.
• Legal Ethics: Religious! Tendency to make an overly strong economic connection. The more money, the less “ethical.”
3 Theories to keep in mind during semester:
1) Walmart Theory. (You can take anything back there! Amazing, but good business for Wal-Mart). Lawyers do what is good for clients and the business without need for laws or regulation.
–2 exceptions: (Regulation may be needed here).
• People can’t always act rationally (Drug addiction, emotional problems).
• Client may be in the dark. Can’t protect self. (Mass litigation with big pot of $).
2) Lawyers are people theory. They respond to human incentives: $, power, public adulation.
3) Legal ethics NOT an oxymoron. Nothing unethical about being a lawyer. Lawyers are mere agents.
• Lawyers not inherently evil. Even a Latham & Walkins attorney versus a Legal Aid guy.
• Transactional cost, but one that adds value (saves customers time and money).
• Contingent fee thing like being a venture capitalist. Some fail so the ones that pay must do so broadly.
Professionalism versus Crass Commercialism: Seems a virtue/vice dichotomy.
Professions: Somehow, seen opposed to “crass commercialism.”
• Special training
• Customer can’t evaluate quality b/c of necessary special training.
• Self-regulating. Burden on the provider because of the above. See the need for perceived “virtue?” (and a distance from economic bottom-line).
Critique: Professions look to the “good ole days.” But, that was when all lawyers went to the same private schools, all white, all male—a big good old boy network. Such a system is:
• Closed. Not all problems will be solved.
• Newcomers face a shut door (or more barriers to entry), therefore less competition and higher rates.
–Reason Silver article sees a perceived inundation lawyers as barriers came done.
• Bad for clients and new comers.
• Professional: code word for monopoly?
Self-Regulation: Really a barrier to entry. Once in the door, close it behind you. Florida and Arizona: have to re-take bar exam when you move to the state. Prevents snow-bird retirees from competing).
What’s Not to Like About Being a Lawyer?(Charles Silver, Frank Cross): Lawyers attacked for turning back to “public good,” but public good analyzed here as objective economic contributions to society. Lawyers as agents, not as social engineers. No one can anticipate effects of litigation, so just follow self-interest. (Ayn
in 1970
–1983, ABA made model rules off of PR code.
–New code supposedly coming out this year.
Problems: Profession becoming nationalized and international, yet rules becoming more diverse among states.
Choice of Law Problem: Attorney admitted in 2 states. Which laws apply? 4 possibilities:
• Where you are admitted, that law applies.
• Location of Court or litigation (although, maybe no litigation or court yet!)
• Location of client (What about corporations? Multiple clients?)
• Predominant effect of attorney’s conduct; solicitation of clients. (What if more than one?)
–ABA tries to help by adding “clearly” and “predominates.” What the hell does that mean?
• Compare ABA Model Rule 8.5 with TX Rule 8.05.
–Differences? Problems? ABA, why distinction if you are licensed in one state or multiple? What to do when choice of law provisions vary? TX, why are there punishment distinctions if in more than one state?
–8.05 holds lawyers to the minimum standards of Texas (Makes sense for reputation of state. But, does it work?) Fascinating focus on advertising.
EXAM: If you are drafting the TX rule on solicitation, what changes will you make?
