What are “Ethics Rules” and why do they matter?
A “Professionalism” and the Economics of Ethics
CB xxiii-xxvi; CB 8(mid)-11; XX 1-48
Professions—why she calls this class PR
1) Profession Regulates itself.
2) Examination of some sort.
3) Expertise in certain area
4) Opportunity for higher income
5) Government involved.
6) Risk—training, etc.
7) Confidences—keeping of secrets
8) Fiduciary Relationship between you and the client
9) Loyalty—by entering into the relationship you have something that extends beyond the current transaction.
1) Wal-Mart Theory of Legal Ethics–Even in the absence of a rule that forces stores to allow returns they have economic incentives to keep the customer happy because it is good for business. The practice of law is also a business, thus there will be many things that lawyers will do not because they are required to but because it is good for business. There will be some exceptions to this.
a. This assumes economic rationality on the part of the attorney, so this theory will not hold when the attorney is not capable of rationality. Examples would be, gambling/drug addict, etc.
b. Also may not hold when the customer is incapable of self-protection. Sometimes people do not know exactly what is going on, this shows that it doesn’t matter if there are rules in place because irregardless it will be difficult often for the client to know if the lawyer is doing something wrong and thus complain, fire, or take them back.
2) Lawyers are people—the incentives to which they respond are not much different to everyone else. Also, we have the same problems as everyone else.
a. Probably don’t want to regulate out of the fear that there is likely to be a disproportionately big problem.
b. Don’t really want to assume that a certain type of lawyer is more likely to do wrong and thus weigh the regulation more on one of the subgroups than the others.
3) Legal Ethics is not an oxymoron- there is nothing unethical about representing someone who did something bad/illegal. There is something wrong with aiding doing something illegal for the client. Your job is to better serve the principal.
a. Although it should seem obvious, there is nothing wrong with making a lot of money because you are good at what you do. This unfortunately tends to be how people see them.
4) Not One Profession-people often fail to see that there are a host of unrelated sub-professions. Contingent fee plaintiffs lawyers face different issues and criticisms than defense attorney’s, and the rules FAIL to recognize this and thus often discriminate against certain groups. We need to look at:
a. Who is making the rules?
b. Is there discrimination or strategic factors?
c. What are the impacts of different interest groups?
Professionalism and Commercialism. Law is a business and perhaps if it was seen as a business people would not have such a problem with it. They think it should be focused mainly on the public good or public interest as well.
– clients cannot usually evaluate what the lawyer is doing because they lack the necessary training. This brings us to our first argument in favor of self-regulation.
– Given the Critical Aspects of Expertise to understand the field, you need experts in the field to govern it.
– Profession requires admittance thru character and skills examination. This could possibly keep out people that are not like us. This may not be good, because a diverse profession is likely to be good for a diverse public. The justification for regulation is often said to be client welfare,
pp. 41-42 Preamble to the Texas Rules—Paragraph 8 on 42 specifically, ABA rules sort of say that independence is another aspect of self-regulation. Therefore, we need to keep the public thinking well enough of us that they will allow us to regulate our own affairs and not send someone else to push into the regulation.
Begin with, Is there any feasible alternative to self-regulation and if we are going to have lawyers regulate themselves should there be lay people involved in the making of the rules themselves, or serving on disciplinary committees.
B Source of the Rules
CB 1-8(mid); XX 49-62
Making of the Rules and Apply/Enforce Rules
Might be good to have lay people involved in the process b/c-
1) Give us the expectations of our clients
2) Check on the Self-interested nature or self-regulation
3) Transparency of the ethical rules for the public
4) Avoid impropriety and Adding Legitimacy- make it look less like a club
It looks like there is some benefit and no particular harm in the inclusion of the public, more so in the enforcement than the making of the rules.
Sources of law governing Lawyers
1) US CONSTITUTION- provides some regulation for the profession, 6th, DP Clauses of 5th and 14th
2) State Constitution—all of them tend to have certain applicable provisions
3) Courts are about the Administration of Justice, thus they create rules with the concern of making sure that the court can operate in some appropriate and consistent way. Do this through Court Orders from the State Supreme Court.
a. Rules of Ethics
b. Rules of Disciplinary Procedure
c. Decisions
4) State Bar—
a. Holds exams, meetings, etc. but most importantly is the Ethics Committee. Hold hearings, proposes rules for court adoption, issue advisory opinions.
b. Though advisory opinions are not always right, following them after a request can provide some protection that you made best efforts if an issue arises.
5) ABA—
a. Generates Model Rules
b. Also issues Ethics Opinions Concerning their Rules.
XX
pp. 49—Texas Constitution
pp. 55—Case concerning the understanding the court has in this regulatory process- says that its power is der
ing will “irreparably damage the delicate balance between the lawyers need to earn and his obligation selflessly to serve.” (Baker not a big fan of this suggestion that someone making a living is wrong.)
b. “Will erode the clients trust in his attorney.” “Once the client perceives that the lawyer is motivated by profit his confidence that the attorney is acting out of a commitment to the client’s welfare is jeopardized.”
c. “Advertising will tarnish the dignified public image of the profession.” Basically saying that products, but not services should be advertised.
i. Three Ways to hire a lawyer
1. Pay by the Hour
2. Contingent Fee Basis
3. Government or non-profit
ii. None of these tend to beget frivolous lawsuits
iii. People on TV tend to provide information about services for some people but also make the profession look bad (a lot of people don’t like the idea of profiting from someone else’s misfortune) and hurt the clients of another part of the profession.
2) Attorney Advertising is Inherently Misleading—the response to information should be more information according to VA Pharmacy.
3) Adverse effect on the Administration of Justice
a. Encourages people to sue which will undesirably unsettle societal repose. This is ridiculous because
4) Undesirable economic effect of advertising—advertising costs money, costs are passed through to the customer, so no advertising keeps costs lower. Seems to make sense, but
a. Benham Study-1972- Study of the cost of Eyeglasses. In states where advertising was allowed, glasses cost less. The marked price and the search costs were both lower. Reason is because of competition, more glasses sold, less economic cost on each pair for the consumer.
b. They tried to say that it would help new lawyers save money but actually prevents them from getting clients.
5) Undesirable effect on the quality of services.
a. Not legitimate because people will suck or be good regardless
b. Ex. Whoever buys the back of the phone book must be doing well because they could afford it.
6) Difficulties of Enforcement—said it would be too tough to regulate instead.
a. Problem is that it will only harm the public if it is misleading. This is not legal anyway, and other lawyers will likely bring a suit or sanction against them.
