1.      Introduction:
A.           What is the difference between ethics and morality?
1.     Ethics – universal standard?
a.Connotations: dishonesty – lied, cheated, or become involved in a conflict of interest
2.     Morality – person-to-person standard?
a.Connotations: depravity – cruelty, sexual misconduct, or otherwise illicit behavior
3.     Two terms can be separated
4.     Not necessary to separate terms – either one acceptable
B.           Theories are abstract, universal, and technical and cannot give final answers to legal questions, but can assist:
1.     Challenge of moral relativism – legal ethics:
a.Scope = there is no right or wrong
b.No certainty that our judgment is right
c. No action can be properly condemned by theory
2.     A belief in relativism is not required in order to have tolerance:
a.Does not deny that there is such a thing as right and wrong, but wrong actions are tolerated
b.Only appropriate for complex moral issues
c. Ex – abortion, euthanasia
3.     Consequentialism – what is good or bad depends entirely on the consequences that come from it
a.Measured by what happens because of the act
                                                                              i.           Causes more good – good act
                                                                            ii.           Causes more bad – bad act
b.Primary theory – utilitarianism – greatest good for greatest number of people
c. Criticisms:
                                                                              i.           Ignores minorities, ex-slavery
                                                                            ii.           Cannot prioritize preferences and rights, difficult to measure costs and benefits
d.Deontology (duty) – actions are good or bad, in and of themselves
                                                                              i.           Started by Immanuel Kant
                                                                            ii.           Act is what matters, not the consequences
                                                                          iii.           Ex – telling truth regardless of consequences
                                                                          iv.           Forbids us from using individuals as a means, no matter how compelling the end
                                                                            v.           Good for correcting overreaching of consequentialism
                                                                          vi.           Criticism:
                                                                                                I.           Vagueness as to content – Universal concepts are so abstract that they cannot be applied to a specific situation
                                                                                              II.           Who decides rights?
                                                                                            III.           Where does the content come from?
C.            What is a profession? — An occupation whose members have special privileges, such as exclusive licensing, justified by some assumptions:
1.     Specialized knowledge:
a.Substantial intellectual training and use of complex judgments
b.Clients must trust those they consult
c. Barriers to entry
2.     Public spiritedness – service to the public
a.Practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good
3.     Ethical code:
a.Self-regulation – only self-regulated profession in entire country
b.Most important – regulated by state bar and their code (PA based on Model Rules of Professional Conduct)
c. Note other regulations- clients can sue attorney, ABA
2.      Confidentiality and Truth Seeking:
A.           The Duty of Confidentiality:
1.     What is the distinction between the duty of confidentiality and the attorney-client privilege?
a.The duty of confidentiality is an ethical consideration that covers a broader range of communication and forbids disclosure to anyone
                                                                              i.           it also operates between the lawyer and anyone from whom the lawyer learns anything from about the client
                                                                            ii.           also applies outside of the tribunal
b.The attorney-client privilege is evidentiary and protects communications from disclosure in a proceeding before a tribunal and operates literally between you and your client only
2.     Ethical Duty of Confidentiality:
a.Bar ethical mandates enjoin lawyers from revealing confidential information received from anyone to anyone, in or out of courtrooms
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                                   II.           The adversary system will function less effectively
                                                                                            III.           Societal interests in justice will be ill-served
d.Assumptions in argument:
                                                                              i.           People know there is such a privilege
                                                                            ii.           People will only speak if they know their statements are confidential
e.Counter-arguments:
                                                                              i.           Almost no lawyers tell clients about confidentiality
                                                                            ii.           Many clients misunderstand nature and scope of confidentiality
                                                                          iii.           Only 30% said they shared information they would not have given without it
                                                                          iv.           Only half of laypersons said they would expect to withhold information without it
3.     Attorney-Client Privilege:
a.Evidence rule:
                                                                              i.           Prevents lawyers from offering evidence in legal proceedings about confidential communications with clients
                                                                                                I.           Only for communications
                                                                                              II.           Work product doctrine
                                                                                            III.           With client only
Attorney’s words are protected only as necessary to protect a client’s statement
