professional responsibility n.
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Primarily, the law governing lawyers in their professional roles. ordinary laws applicable to lawyers in specific disputes, such as contract law, including the law of fiduciary relationships laws governing judicial procedures criminal law

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professional responsibility

Primarily, the law governing lawyers in their professional roles

  • ordinary laws applicable to lawyers in specific disputes, such as
    • contract law, including the law of fiduciary relationships
    • laws governing judicial procedures
    • criminal law
    • laws governing business activities (antitrust, consumer protection, etc.)
  • Rules and regulations to be applied in the professional disciplinary process
  • other principles guiding professional conduct

PROFESSIONAL RESPONSIBILITY

duties reflected in the rules
Duties reflected in the Rules
  • At least four constituencies, to which potentially conflicting duties are owed
    • The public (including prospective clients)
      • License to practice, limited monopoly on provision of certain services
      • Public interest: access to competent services at reasonable cost?
      • Issues: unauthorized practice, admission, structure, discipline
    • The courts before which lawyers practice
      • lawyer as “officer of the court”
      • Issues: duty to serve on call from a court, rules governing conduct in judicial proceedings
    • Specific clients (heart of the course, the attorney-client relationship)
      • Issues: nature (fiduciary), establishment and termination; fees; confidentiality, conflicts of interest; malpractice
    • other lawyers: rules of competition and etiquette
      • Issues: advertising, solicitation of business, conducttoward adversaries
who makes and or enforces the rules
Who makes and/or enforces the rules?
  • legislatures
  • courts deciding specific cases
  • courts as primary regulators of lawyers
    • we will study how conflicts between these sources are resolved
  • bar associations (national, state, local)
    • formulate proposed rules of conduct (esp ABA)
    • assist in the disciplinary process
format of the course
Format of the course
  • 3 hour exam, closed book except for Rules Pamphlet, all essay and short-answer (unless otherwise stated, the applicable rules will be the current version (2009)
  • Class discussion focusing on problems in casebook, in light of readings and rules
  • I’ll call on people, dividing the seating chart into groups of 4 or 5 each and allocating each assignment (after the first couple of classes) to one of the groups to be “up for”
attendance
Attendance
  • Maximum number of absences, regardless of reason: 9. If you are absent 10 times, you are subject to dismissal from the course
  • Unexcused absence when your group is up or continues to be up (some assignments will spill over into the next class period): 2 points deducted from final exam grade
problem p 1 and sprung p 2
Problem p. 1, and Sprung p. 2
  • What is the source of the difficulty in each situation?
    • carelessness of the opposing lawyer or his staff?
    • ignorance or carelessness on the part of the trial judge?
    • rigid, formalistic rules of law (here procedural) that are "traps for the unwary"?
problem and sprung c t d
Problem and Sprungc’t’d

Why should the "innocent" party's desire to take advantage of these mistakes present an ethical issue for that party's lawyer?

  • Does it represent a disregard of "professionalism"? What is that?

Terrell & Wildman, p. 32 (not assigned) identify 6 principles, including

“a respect for the system and rule of law”

“a respect for other lawyers and their work”

Do these help?

proble m and sprung c t d
Problem and Sprungc’t’d
  • Should a lawyer protect her "brother lawyer" against malpractice liability for his carelessness, at the expense of his own client?
  • Should the lawyer protect the judge or the system from error? From an erroneous judgment?
  • Are there specific ethical obligations to the client that militate against correction?    a. Model Rule 1.2 on who decides as between lawyer and client    b. Model Rule 1.6 on the obligation of confidentiality
formal professional rules
Formal Professional Rules
  • History of development of professional rules (Croft, p. 8 )
  • Private treatises and local practice (19th C.)
  • ABA formulations
    • Canons of Professional Ethics (1908 with amendments)
    • Model Code of Professional Responsibility (1969)
      • Canons
      • Ethical Considerations
      • Disciplinary Rules
    • Model Rules of Profession Conduct (1983, with amendments)
      • Rules and commentary

What does Croft see as a problem with the way the rules have evolved?

criticism of the lawyer s traditional role
Criticism of the Lawyer’s “Traditional Role”
  • Wasserstrom, p. 12
  • “role-differentiated behavior” of lawyers, withholding moral judgment on client’s lawful goals – are you persuaded by his examples?
    • immoral client goals: disinheriting child because of opinions, taking advantage of tax “loopholes”, selling harmful products
    • immoral lawyer conduct in pursuit of lawful client goals: cross-examining truthful witness, requesting psychiatric examination of rape victim
    • what about the distinction between doctor treating bad person and lawyer representing him?
    • less problematic in criminal cases than in civil?
  • unequal relationship between lawyer and client, lawyer is likely to be dominant

Simon, n. 2 p. 19: how does his critique differ from Wasserstrom’s?