Professional Responsibility
Professor Robinette
Summer 2013
I. Introduction
1. The Basics
A. Ethics vs. Morality
1) Ethics- towards profession itself (code of ethics) (particular)
2) Morality- universal; goes against everything. (not against specific rules)
**For this class both ethics and morality are interchangeable**
B. Moral Relativism
1) There is no night (different opinions)
a. Moral relativism= you have no right to judge others
C. Tolerance
1) Does not deny that there might be a right answer
2) Only appropriate for complex moral judgment (abortion etc.)
a. Would not apply to something like child abuse
D. Moral Theory 101
1) Consequentialism
a. Judges the rightness and wrongness of actions based on their consequences
a. Utilitarianism
1.) Evaluates actions on the basis of the pleasure they create or the pain they inflict.
b. Problems
1.) Damages the rights of minorities
2.) It doesn’t give people rights
3.) What the appropriate happiness’s?
2) Deontological
a. Refers to approaches that view right action in terms of discharging responsibilities, independent of consequences
1.) Deontologists= if you meant well you are okay even if it backfires
a.) Problems
A.) So vague it does not give guidance to anything
B.) Useful when thinking about ethical dilemmas
2. Concept of a profession
A. Profession
1) Specialized knowledge
2) Code of ethics
3) Licenses
4) Acting in the public good
a. Putting public interest and client interest ahead of your own
B. Commercialism
1) Increased competition (more law students bigger law schools, bigger firms, more lawyers)
a. Good for clients (more competition= lower prices)
b. Not good for suppliers
C. Problems with profession
1) Market oriented
a. A lot less jobs than there was
2) Specialization (too many people focus on one area of the law)
D. Regulatory System
1) Courts and agencies (Rule 11 sanctions)
2) Tort Law (If you violate duty to clients)
a. It is suggested that you always purchase malpractice insurance
3) State Bar (The most significant regulatory system)
a. You are regulated by state rules and regulations
b. Model rules are used as a guide post for states
1.) States do not necessarily follow model rules
a) Some make minor or drastic changes
2.) Authorized by state supreme court
E. Rules
1) Violating Rules
a. Never monetary penalties
b. Private reprimand
c. Public reprimand (anyone who searches for it can find it)
d. Suspension (can severely damage your practice)
e. License revoked
2) Relationship with civil liability
a. Scope section 20 (p. 13 Regulation of Lawyers)
1.) Violation of a rule should not itself give rise to cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.
2.) Since rules do establish standards of conduct by lawyers, a lawyer’s violation of a rule may be evidence of breach of the applicable standard of conduct.
3. Theories of Lawyering
A. Neutral Partisanship
1) Definition
a. Neutral= you take any client
b. Partisan= you will go right up to the line of legality for your client
c. Rule 1.3
1.) A lawyer shall act with reasonable diligence and promptness in representing a client.
2) Justifications for Neutral Partisanship
a. The client’s autonomy (freedom)
1.) The liberty to order our own affairs within wide limits defined by law.
2.) Problems
a.) You may increase the autonomy for some but decrease/curtail autonomy for others
b.) You do not need neutral partisanship for people to be autonomous
a) If one lawyer turns down a client, another will likely take the client.
c.) Just because people want to be free does not mean we should do everything to make it happen
3.) Positives
a.) Autonomy is based on something that is good
b.) Freedom is good
b. The moral interests of the lawyer
1.) Treat client as a friend
a.) You would favor your friend over most other people
c. The interests of the system
d. Role in the system
1.) Adversarial system
a.) Two parties in control (U.S)
1) Also a neutral third party (judges)
a) Judges need people to be mouth pieces.
b) Lawyers who are neutral partisan do anything in their power for their clients to accomplish this.
b.) The adversarial system is the best chance you have to get to the truth.
c.) You have two lawyers to break pre-conceived notions.
B. Neutral partisanship is the dominant view but not universal view of all lawyers.
C. Application
1.) Hypo: You are sex a fax of privileged material from an opponent lawyer
a. You must notify the sender
b. Following neutral partisanship you must read it and must use it- Massachusetts
c. Some states cannot read it- Virginia
d. Majority of states
1) If you know it is confidential before you read it, you cannot read it.
e. If you read it, do you use it?
1) Majority of states
a.) You may use it
2) Virginia
a.) You must not use it
3) Massachusetts
a.) You must use it
D. Alternatives
1.) Simon= pursue “legal justice” (p. 174)
2.) Wendel= allegiance to law not client (175)
a. Don’t twist law to help client
3.) Luban= you should be accountable for what you do (175)
4.) Rhode= you be accountable for what you do (175)
5.) Freed
the lawyer in a controversy between the lawyer and the client;
6.) To comply with other law or court order; or to detect and resolve conflicts of interest arising from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
B. **Special Note** There is no spousal exception
1.) Lawyer cannot disclose anything to spouse
a. If he/she does ethical duty is violated
5. 1.2(d) in any circumstance a lawyer cannot assist a client in any criminal or fraudulent activity.
A. Willful ignorance
1.) Individual’s conscience avoidance of guilty knowledge satisfies the mens rea requirement from criminal liability.
a. More and more courts are ruling against willful ignorance.
2.) Rule 4.1(b) may make certain scenarios mandatory in 1.6.
6. Dilemmas of Advocacy
A. Treatment of Evidence 3.4(a) & (PA law handout)
1.) Once you believe a suit will happen you cannot destroy evidence.
B. Instrumentality or Fruit of a Crime
1.) You must turn over any instruments of crime over to prosecutor. (not needed in white collar crimes. i.e documents)
a. Cannot link the instrument to your client in any way (in most jurisdictions).
b. Prevents defendants from making lawyer repository of evidence.
1) Problems, pg 331
2.) You do not have to disclose dead bodies because you are no preventing bodies being found whereas if you put a gun in the safe deposit box you are preventing it from being found
a. Recommended: do not go see and do not touch evidence.
C. Witness preparation (pg. 343)
1.) You can talk to witness and tell witness what to wear.
2.) Cannot coach on how to change facts.
D. Destruction of Documents (Rule 3.4)
1.) In many jurisdictions, lawyer’s duty starts when he/she believes it is likely to happen.
2.) Examples
a. Destroy list of potential problems causing collapse (use 3.4, *potential evidentiary value*)
b. Do not create unnecessary documents (this instruction is acceptable)
c. Destroy future documents (cannot say this broadly because you must decide where they had evidentiary value)
d. Purge computers (only on a case by case basis *must determine evidentiary value*)
