Select Page

Professional Responsibility
West Virginia University School of Law
Vojdik, Valorie K.

Roles of Lawyers
Moral Theories – 3 Approaches
–          consequences of the action – utilitarianism
–          intrinsic nature of the action – deontological
–          character of the actor – virtue ethics
Roles of the Lawyer
Freedman – Three Answers to the Moral Role of a Lawyer
1.       Amoral technician
2.       Moral control of the client
3.       Choice of client as a moral
1. Advocate or Representative of Clients
–          lawyers has a fiduciary responsibility to speak for clients
2. Officer of the Court
3. Public Citizen with a Special Responsibility for Justice
–          obligation to report violation of misconduct of other lawyers (quality)
–          obligation to provide services to persons who cannot find legal services
4. Ethical Person
How to examine an ethical question?
–          What are the results to your client’s interests?
–          What are the results to relationships with future clients?
–          What are the results to society?
–          What are the results to the administration of justice?
Neutral Partisanship
The requirement of divorcing one’s own morality from that of the client (principle of neutrality)
–          represent a client regardless of the lawyer’s opinion of the justice of the client’s needs à can choose to refuse the case or withdraw from representation if the lawyer cannot maintain neutrality
–          Model Rules 1.3 – requires only that the lawyer act with “reasonable diligence and promptness” in representing the client
–          Objectives versus Means à Model Rules require that the lawyer abide by client decisions on the objectives of representation but that the lawyer need only “consult” with the client on the means
–          Some states modify 1.3 to include “zealously and diligently within the bounds of the law” while the Comment to 1.3 indicates that a lawyer shall act with commitment and dedication and with zeal in advocacy (Warm Zeal)
–          the requirement of pursuing the client’s ends vigorously within the bounds of the law (principle of partisanship); line between those methods that the lawyer should be willing to use and those that he should not use is the line between being a representative and being an officer of the court
Role Morality
Role Morality – the concept that a lawyer, acting on behalf of a client, may perform certain acts that have either means or ends that the lawyer would not do or seek in his personal life; may be viewed as “amoral technicians”; others view as “universalistic morality” (a person must recognize that morality requires a person to transcend their own particular desires and loyalties, recognizing that all people have equal and intrinsic moral worth); some view this as a “special friend” relationship where the lawyer, as a special friend of the client, goes out of his way to do things for their friend that they might not do for others
 
Justifications for Role Morality: (a) maximizing client autonomy; (b) maximizing the adversarial aspect of the American legal system; (c) maximizing the protection of individual rights (protect from majority’s oppression of minority rights; minorities will have difficulty finding lawyers whose morals are similar)
Model Rules
RULE 1.0 TERMINOLOGY
(a) “Belief”: actually supposed the fact in question to be true; inferred from circumstances
(b) “Confirmed in writing,” with regards to informed consent, denotes informed consent given in writing by the person or lawyer promptly transmits to the person confirming an oral informed consent
(c) “Firm” lawyer or lawyers in a law partnership, other association authorized to practice law, or lawyers in legal services organization, or the corporate legal department
(d) “Fraud” fraudulent conduct under substantive or procedural law that has a purpose to deceive.
(e) “Informed consent” agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives.
(f) “Knowingly” actual knowledge of the fact in question; inferred from circumstances
(i) “Reasonable belief” lawyer believes the matter and that the belief is reasonable under the circumstances
(j) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.
(k) “Screened” isolation of lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
(l) “Substantial” material matter of clear and weighty importance
(m) “Tribunal” court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity
(n) “Writing” or “written” tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videore

n to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.
 
[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client’s or other person’s silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person’s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (n) and (b). Other Rules require that a client’s consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (n).
Screened
[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11, 1.12 or 1.18.
 
[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to