Legal Profession Outline
Spring 2005
Professor Packel
1. Hist and Sources of Law Governing the Legal Profession
a. In 1977 ABA adopted the Model Rules of Professional Conduct (RULES)
i. 43 of 50 states follow the model rules.
ii. Ca and NY have their own rules.
b. In 1997, ABA appointed new committee to revise the rules—called the Ethics 2000 committee to revise the rules for the new millennium.
i. They were adopted by Aug 2002.
ii. In 2003 there were some small changes and states are in the process of adopting amendments.
iii. PA has the latest version of the rules—went into effect 1-1-05.
c. Rules of professional conduct are substantive lawà if you violate them there is an enforcement mechanism.
i. You can be denied the rt to practice law
ii. Your license can be suspended or denied
iii. The rules apply even if you are not admitted to practice.
d. Model rules are not the only rules reg practice of law
i. Governed by rule of crim pro, civ pro, rules of evid, etc.
e. How can you represent a person when you know he is guilty?
i. The question assumes that we think that a moral person would not help another person avoid the consequences of a criminal or wrong act.
ii. Rephrase—how can you consider yourself a good person if you help people get away with unlawful conduct.
iii. Rule 1.2 of the rules gives the answer–must do what client wants except as provided by the rules
1. Lawyer may not counsel or assist client in conduct that is crim or fraudulent
2. Beyond assisting wrongdoing, lawyer must do what client wants
3. Sometimes you can refuse to represent a client. You can also withdraw from representation.
4. You may represent a guilty person (even if you know they are guilty) and if you do so, you must do what he/she wants as long as you represent them. Your 1st duty is to your client.
2. Lawyer-Client Relationships
a. Relationship between lawyer and client—client is the principal and lawyer is the agent.
i. Lawyer must act in conformity with his/her auth and instructions and lawyer is responsible if he violates his duty.
b. RULE 1.2—SCOPE OF REPRESENTATION AND ALLOCATION OF AUTH BETWEEN CLIENT AND LAWYER
i. 1.2a says that lawyer shall abide by a client’s decision concerning the objectives of the representation.
1. Lawyer must also abide by client’s decision to settle a case.
ii. You don’t have to do whatever the client wants—limited by 1.2d
1. Rule 1.2d—lawyer shall not counsel a client to engage, or assist a client in conduct the lawyer knows is crim or fraudulent, but lawyers ma
even to the client’s detriment
1. When lawyer has auth to act on behalf of client, as long as the lawyer’s actions are within the scope of his employment, will bind the client.
2. This exists if there is apparent auth.
3. Client will be treated as if the client carried out the action himself (cannot complain about lawyer mishaps)
ii. Binding statements are called judicial admissions.
1. Admissions made in ct and they are binding.
2. Failure to respond to complaint or info in complaint is also binding admission.
3. At trial, the lawyer is client’s agent and if lawyer fails to make objection or such, the consequences are binding on the client. You waive the right to object.
4. Stipulations are also binding admissions–binding on both parties.
f. Consequences of lawyer conduct are governed by:
i. Law of evidence 801d2c &d—agent’s statement may be admissible against the principal if agent authorized to speak. Statements of lawyer may be admissible against the client.
May arise from FRCP and rules of trial.
