I. Law, Ethics & the Adversary System
A. Legal Ethics
1. Legal ethics are role-based ethics centered on the adversary system.
2. Requires that the lawyer put the client’s interest above all others and society.
3. Preamble: States the most basic posture
4. The adversary system serves as the justification of this basic posture of legal ethics
B. Ethics Rules v. Legal Rules
Ethics Rules
i. Not a basis for civil liability. A violation does not give rise to a cause of action.
ii. Designed to guide Ls.
Legal Rules
i. Punishable in civil or criminal court
C. Ethics Code
1. ABA is a private organization. It has no power to impose rule on anybody. ABA Model Codes becomes important only to the extent that they are adopted by the legislature or judicial action. The States have the power to regulate lawyers. 40 states have adopted the Model Rules w/some variations.
D. History of the Ethics Code
a. 1964 – Model Code of Professional Responsibility created by ABA
b. 1983 – Model Rules of Professional Conduct
i. Adopted by 40 states with variations.
ii. There are no ethics rules of federal courts. Some follow state ethics codes, others follow the ABA rules.
c. 2000 – Restatements created by ALI
d. 2002 – MR amendments
e. 2003 – Sarbanes-Oxley
f. 2003 – MR amended to bring in conformity with Sarbanes-Oxley
E. Disciplinary process
1. State courts have near-exclusive authority, sometimes administrative agencies.
2. Client, another lawyer, or judge complains and the bar commences an investigation. Lawyer has no recourse in court, unless there is a legal problem involved. State bar makes the final decision of whether to process the complaint.
3. This discipline is not the same as a sanction. The only exceptions are: ethic rules in federal courts (which are separate from state ethics rules) carry similar sanctions, and administrative agencies (such as the SEC) have ethics rules with similar sanctions. Sanctions can be reprimands that are private/public.
F. The Adversary System
1. No duty to disclose in adversarial situation
G. Spaulding v. Zimmerman
1. [F] Z knew that S had aorta aneurysm that may have been caused by the accident but did not tell S. S would have found out if his lawyer had requested discovery of Z’s doctor’s report. Z’s lawyer knew that S might die at any moment. S settled case w/o knowing of condition. Sued for more damages after discovering it more than year later.
2. [H] Settlement required court approval only b/c minor was involved. Trial court vacated the settlement stating that since the settlement required court approval, the lawyer was required to disclose the condition to the court. Failure to disclose this info amounted to fraudulent concealment to the court. Z’s lawyers weren’t required to reveal to S during settlement discussion b/c it was part of the adversary process. If S had not been a minor, settlement would be enforced.
3. 2003 Amendment permits disclosure in this case
i. For the first time, disclosure is permitted to prevent death and substantial bodily injury.
· This is permissive, not mandatory
· Aims to prevent, doesn’t cover all cases
· CA: duty of confidentiality has no exceptions
4. Characteristics of the system:
i. Based on opposing parties controlling gathering and presentation of evidence
ii. Gives great priority to rights of parties
5. Problems with the adversary system
i. Sometimes impedes the discovery of truth. Parties have incentive to win instead of discover the truth.
ii. Unequal resources and lawyers’ capabilities can impede discovery. Adversary system makes dispute resolution very costly.
iii. Repeat players have many advantages over one-shot adversaries.
iv. Pervasiveness of rights can impede truth. Jury trial, evidence system keeps things out of the picture.
v. Constitutional rights (esp of criminal ∆s) provide an obstacle to truth.
6. Adversary system v. Inquisitorial system
Adversary System
Inquisitorial System
Structure
Parties’ lawyers in charge of factual investigations.
Gov magistrate in charge of investigation.
Premise
Hypothesis bias: Both parties need initial bias (hypothesis) to start investigation.
The parties have an incentive to investigate and win, which counteracts the bias.
Hypothesis bias: Must develop a hypothesis about what the truth might be in order to investigate. However, the investigators (bureaucrats) do not represent the parties.
Advantages
Less bias by party interests.
Reduced repeat player problem.
Rights do not block search of truth.
Lower cost, fewer lawyers.
Can cut directly to the dispositive issue in the case.
Disadvantages
Costly
– Sometimes little independent investigation because magistrates use police reports as basis of hypothesis.
– Distortion in investigation caused by hypothesis formation.
– Rights not as central.
7. Problems with the Adversary System often stem from inequality:
i. Wealth: Resources for investigation, most criminals indigent, individuals v. corporations
ii. Lawyers withhold evidence: abuses in the discovery process, rules of disclosure
H. The Basic Postulate or “The Dominant View”
1. It is the lawyer’s obligation to zealously pursue the interests of the client.
2. Problems: It might cause great harms to another person (ie. Spaulding) or to public interest (getting murderer off).
3. Holmes’ position on what the law is, what underlies the basic posture
The client wants to know the risks of taking a certain action. Thus, law is prediction (positivistic view) of what the C can get away with. To be a good lawyer, have to understand the concept of law from the bad man’s perspective, what kind of conduct he can get away with and what is the least risky course of action. Thus, the implication is: The lawyer should help the client to do whatever he wants to do as long as it is legal.
4. Altman’s review of Simon’s book: Wm. Simon critiques legal positivism
Holmes’s bad man view encourages the L to think the worst of their C. Simon’s solution to this problem is to dialogue with the C and discover/clarify what the C wants. Consider relevant circumstances in a way that will likely promote justice, take broad moral and legal background principles (natural law) into account when deciding what the law is when advising a C.
5. Freedman:
The point of moral choice for lawyers comes when the L decides whether or not to take on the client, since they are free to choose who they represent. This way the L can avoid the uncomfortable situation if the C wants L to do something that he doesn’t want to.
Preamble
L has role of: Advisor, advocate, negotiator, evaluator, 3rd party neutral
L plays role of: Representative to C, officer of legal system, public citizen
In case of conflict, L must act to zealously protect legitimate interests of the C.
MR 2.1
L exercise independent professional judgment and give candid advice. When giving advice, L may refer to law and to other consideration—moral, economic, social, and political factors that may be relevant to C’s situation.
Must deliver bad news too
Purely technical advice can be inadequate. Factor in relevant moral and ethical considerations
Do not usually have to offer advice. Even if client expressly says he only wants technical advice, must indicate extra-legal matters if client is inexperienced in legal matters.
Must recommend consulting with other fields if necessary, or advice between conflicting recommendations between experts
Do not have to offer advice unless client’s actions will have adverse legal consequences in relation to representation. Act in client’s interest.
CA 1-100
Under disciplinary authority of Board of Governors.
Rules not exclusive, not intended to create new causes of action.
Geographic scope: Includes members both in and out of state.
CA 1-110
Duties of attorney include: Respect legal system, represent only legitimate causes, be truthful, comply in disciplinary proceedings, no slander/corruption/avoid helping poor people because prejudice, report malpractice
II. Basic Features of the A-C Relationship
A. The Nature of the Relationship and its Formation and Termination
1. Gilson: Analysis of the market for legal services (widely-accepted view)
1. Extremely difficult for consumers to evaluate legal services. Since normal market forces don’t operate well in this context, consumer protection has to take another form.
2. Ethical difficulties in representing sophisticated clients: Whether lawyers have the power to act as an ethical gatekeeper for clients who don’t want their lawyers to do so.
i. Argues that lawyers can maintain this gatekeeping role due to the market for legal services. Clients have economic incentives to remain loyal to lawyers. Shopping for a new lawyer is costly and they can’t evaluate performance. Thus, it is not hard for lawyers to maintain ethical standards.
3. But what has changed is that many companies hire their own in-house lawyers. The in-house lawyers decide what outside lawyers their clients will use and they monitor performance. This has increased competition in market for legal services. Competition has made it harder for lawyers to act as ethical gatekeepers. The market pressures make lawyers working for sophisticated clients do things that may be unethical
4. Professor: Gilson is exaggerating and his story is incomplete.
2. Two of the most common complaints:
1. Lawyer don’t care. Don’t sympathize and aren’t emotionally involved
i. Cs evaluate what they can—emotional involvement
2. Lawyers don’t communicate with client
3. Sarat and Felstiner Study:
1. Lawyers aren’t emotional b/c 1) not relevant to legal problems in the case, 2) ability to preserve objectivity of judgment, 3) burn-out, 4) financial issue: empathy costs time, time is $
4. L-C communication problems:
1. Failure to communicate can be unethical
i. Rule 1.4 Communication: explain enough to let C make informed decision.
1. Inform of any decision if C’s informed consent is required under R 1.0(e)
2. Reasonably consult about the means
3. Reasonably inform about status
4. Promptly comply with requests for info
5. Consult with C about any limitation on L’s conduct when L knows that the C wants assistance not permitted by the Rule or other law
Explain enough so C can make informed decisions about representation
ii. L has to make sure that C is kept up-to-date w/big development—settlement offers
2. Let C know that secretary will answer normal questions, L not always available.
5. Three models showing facets of this relationship:
1. Fiduciary model: C is dependant on L’s skills and knowledge. L provides services at a cost. Fiduciary is expected to put C’s interest ahead of other’s (especially their own)
2. Market model: Consensual exchange that benefits both L and C. Presumes that C can select an appropriate person to provide needed services.
3. Regulatory or Public Utility model: L as quasi-public official doing important public function
6. FORMATION: L usually sends C an engagement letter that spells out the agreement. In some states, it has to be written. This letter usually describes fee arrangement and scope of representation (including limits on scope). L-C relationships are usually formed through contract or court appointment.
1. Togstad v. Vesely et al: Π was a victim of a possible medical malpractice. His wife met with Miller in ∆’s firm to talk about whether the firm would represent them. The jury found in favor of Πs on all relevant factual issues, including that they were clients of ∆. Only clients can sue for malpractice. SCt of MN upheld the jury verdict on the theory:
A person is your client if:
(1) It was foreseeable that giving the person negligent advice might injure her (Tort), or
(2) Person reasonably believed she was getting legal advice and relied on it (Contract)
2. Non-engagement letters are commonly used in CA. You want this in writing so that you would have this as evidence to support your verbal account. Or you should reduce the conversation into a memo soon after it occurred. CA follows the tort version of the rule.
7. TERMINATION:
(1) C can fire the L or (2) L can withdraw from representation
-C has substantial freedom to terminate the L for any reason, at anytime.
-L can’t withdraw at will, but ethics rules allow/requires w/drawal under certain circumstances. If representation involves litigation, the L can’t w/draw w/o ct’s approval
1. C fires L
i. Limitations on C’s power:
1. A firing could violate federal or state law prohibiting race or gender discrimination. Under federal law, the limit would only apply if the lawyer was an employee, i.e. in-house counsel.
2. The CA SCt departed from prior law in most jxs, when it recognized the action for wrongful termination or retaliatory discharge by in-house counsel who was fired b/c they refused to do bad things for their corporate clients. This c/a is only available to in-house counsel.
3. The C may not be allowed to terminate his L during trial or very close to trial
a. Court doesn’t allow this b/c (1) it may be used as a strategic tool to prevent trial from going toward the wrong direction, (2) many interests are affected (judge’s time, L’s time, witness’s time, etc)
ii. Three main legal issues related to Cs firing their Ls that have been litigated:
1. Wrongful termination
2. Fees: There are many types of fee arrangements—flat fee or contingency fee.
Contingency fees: Most courts say L is entitled to quantum meriut (reasonable value of services rendered).
3. Files: Courts have generally rejected the view that some files are attorney work product, so Cs are usually entitled to the entire file.
MR 1.16(d): L should return unearned fees and surrender papers and documents which the C is entitled to.
2. L w/draws from representation
i. MR 1.16: Mandatory and Permissive Withdrawals.
(a) Mandatory Withdrawal
1. representation would result in the violation of rules of conduct or other law
2. L’s physical or mental condition materially impairs his ability to take the case
3. The L is discharged
Answer to question—what should a L do when faced w/C misconduct
Uncertainty: what if the L thinks C is doing something wrong, but is not sure
The usual interpretation is t
lieves C to have mental problems to raise to court that C is incompetent to stand trial. Court must then appoint a mental health specialist to evaluate the ∆. The standard for competency to stand trial is whether the ∆ understands the proceedings and can assist in his defense.
ii. In these case, SC has ruled that a criminal ∆ who can understand and assist has the right to refuse an appeal to a death sentence.
iii. People v Deere: CA SCt ruled the criminal defense L must present evidence to mitigate in the penalty phase for a death sentence, even if ∆ doesn’t want evidence presented (BUT in the trial phase, the C chooses under Rule 1.2(d) and Constitution) In other states, C can choose
iv. Freedman on the Unabomber case: Issue: Penalty phase. L thought the only way to escape the death penalty is to introduce evidence of mental problems. ∆ didn’t want to do this. L then presented to court whether ∆ could stand trial due to his refusal to plead a mental defense). Psychiatrist deemed that ∆ understood and could assist.
1. Monroe and Freedman: ∆s in these cases should have final authority
2. Professor: Deere and Unabomber wanted to make a moral/political statement. They were consulted, yet they wanted to take the risk. Ls should respect their decisions. Need to analyze whether the C is truly competent or not.
v. CA doesn’t have ethics rule like 1.14. Seeking a guardian must be specifically permitted or required by state statute.
A. C. Dealing with Another Lawyer’s Client
MR 4.2 The Non-Contact Rule: L can’t communicate about the subject of representation w/a person the L knows to be represented by another L in the matter, unless L has the consent of the other L or is authorized by law or by a court order.
1. Violation of this rule: Ethics violation will lead to a report to the bar à ethical sanction. Legal consequences: court might disqualify L from representing or excluded improper evidence.
2. Three purpose of this rule:
a. Protect relationship of person and other L
b. Preserve confidential information of the other relationship
c. Prevent overreaching by one L over the other L’s client (hoodwinking, deception)
3. ABA ethics opinion shows one exception:
a. L is convinced that the other L isn’t communicating settlement offer.
b. L can’t contact other L’s client.
c. C can’t waive non-contact rule.
d. Exception allows L to advise own client to communicate the settlement offer to the other C. (Generally, can’t use C as conduits to contact other Cs)
4. The rule doesn’t stop Cs from talking to each other, from you from talking to someone’s C about a matter in which you are not currently representing, or talking to C w/o other L’s consent if authorized by law (i.e. taking deposition, can always talk to state officials of the gov)
5. In order to violate Rule 4.2, L needs to know that the person he is talking to is represented by counsel. (Actual knowledge may be inferred from circumstances—can’t be blind to obvious)
6. Sophisticated v. unsophisticated clients. Sophisticated clients often want to be CC’d on every communication.
7. Application of this rule in civil litigation is straightforward.
8. Application of this rule in difficult/controversial in:
a. Corporate Law: When L wants to talk to employees of an entity. Corporation is separate legal entity from their constituents. They are not real, only the people (their constituents) are but they can only act through their constituents.
i. Problem: Which employees count as “persons” for the non-contact rule to apply? Corporate Ls want broad definition of person to prevent opposing counsel to talk to any corporate employees with knowledge about the dispute. On the other hand, the Ps want a very narrow definition of persons b/c they want easy access to witnesses.
ii. The 4.2 problem is that it controls early, informal access before the application of discovery rules (eg. determining whether there’s enough to file the complaint). Important in the early stages of litigation. Of course, Ls investigating corporations are entitled to use all normal discovery procedures. Earlier interviews can be advantageous to Ps Ls because facts are fresher in the witnesses’ mind.
You cannot talk about a matter, w/o corporate counsel’s consent, to a corporate employee who
1. Supervises, directs or regularly consults with the corporation’s lawyer about the matter, or
2. Has authority to obligate the organization with respect to the matter, or
3. Whose act or omission in connection with the matter may be imputed to the org for liability purposes.
·Role Rule 4.2 plays in the system of evidence developing against corp ∆s
o 4.2 affects the capacity of discovery: Π Ls want to be able to gather enough evidence to see if they can file a complaint. Want to be able to have informal contact early—ppl’s memory, corp counsel wouldn’t have talked to them yet
o Even if “person” is defined narrowly, Corp Ls still have means to protect their C. Under Rule 3.4(f): L shall not request a person other than C to refrain from voluntarily giving info unless the person is a relative or employee of C. Can tell ppl not to talk, irrespective of what 4.2 means. Even if corp employee is a person whose the Ps L is free to contact w/o consent of corp counsel, if he knows about it corp counsel can ethically instruct person not to talk. However, potential obstruction of justice problems.
§ But 4.2 still important b/c before a lawsuit, corp L probably won’t know that there is a problem—won’t yet instruct ppl not to talk. And even after lawsuit filed, there may be ppl unknown to corp counsel.
o If CC knows that they are going to be involved in litigation, will develop a lot of informal documents while informally talking with corp employees. If Πs Ls could get discovery of the info, 4.2 would be completely useless. This info is protected against discovery by attorney-client privilege. Upjohn case.
