1. 1 Ethical Lawyering Class 2

2. 2 Adversary System Two well prepared advocates will represent clients as best they can and the truth will be found.

3. 3 Identity v. role What do I do as a lawyer? Creates possible conflict between your values as an individual vs. values that you assume as an attorney.

4. 4 Amoral Technician Lawyer’s traditional role in adversary system. Partisanship to client; neutral as to means and ends. Creates a simplified moral universe for lawyers. But reflects market system and lawyers can avoid making hard moral judgments.

5. 5 Problems with role-differentiated behavior Defective lawyer/client relationship - lack of dignity and respect -inequality in that client is dependent on lawyer -client has hard time evaluating -lawyer's feel special

6. 6 Character traits aggressiveness/combativeness ruthlessness pragmatism competitiveness role behavior may dominate personal life

7. 7 Counter-attitudinal advocacy You will conform beliefs with publicly espoused and advocated positions. People tend to resist psychological dissonance. If you look for arguments that will support your client’s position, then you will filter out opposing arguments. Self-persuasion: you learn about your beliefs from the way you behave.

8. 8 Suppose a poor woman was near death from a special kind of cancer. There was one drug that the doctors thought might save her. It was a form of radium that a druggist in the same town had recently discovered. The drug was expensive to make, but the druggist was charging 10 times what the drug cost him to make. He paid $200 for the radium and charged $2,000 for a small dose of the drug. Heinz, the husband, told the druggist that he was a poor and his wife was dying, and asked him to sell it cheaper. But the druggist said, "No, I discovered the drug and I'm going to make money from it." So Heinz got desperate and considers breaking into the drugstore to steal the drug for his wife. As a friend, how would you advise him? Should Heinz steal the drug? Would your advice be different if you were his lawyer?

9. 9 MR 1.2 A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

10. 10 Hypo 2 Suppose that a lawyer knows that her client is innocent. However, she also knows that the prosecutor has a thoroughly convincing eyewitness who will not be shaken and who will testify that the client committed the crime. Assume the lawyer also knows that she can obtain a completely convincing forged hotel register from a city several hundred miles away which will "prove" that her client was in the other city at the time of the crime. Assume as well that the lawyer knows that she will never be caught if she uses the forged evidence. Should the lawyer produce the false document?

11. 11 MR 3.4(b) A lawyer shall not: (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

12. 12 Hypo 3 Suppose a lawyer represents a client in a proposed merger with another company in competition with the client. The Federal Trade Commission has opposed the merger, and the lawyer's research indicates that none of the usual arguments including the "failing company" argument will work to change the FTC's mind. The theory of that argument is that one of the companies can be saved from bankruptcy only if the merger if permitted. The lawyer is also aware of a tactic called the "chicken defense" which has been successful. One company threatens to go out of business by closing down its operations and firing a few people at a time. This self-inflicted economic wound is designed to bring about political pressure so that the FTC caves in and drops its opposition. When the client asks the lawyer what to do, what should the lawyer advise the client?

13. 13 MRPC 1.2 (a) [A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter[, and i]n a criminal case... as to a plea to be entered, whether to waive a jury trial and whether the client will testify.

14. 14 Model Rule 1.2, Comment [1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.

15. 15 Model Rule 1.2 Comment [2] [A] lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.... [T]his Rule does not prescribe how such disagreements are to be resolved.... The lawyer should... consult with the client and seek a mutually acceptable resolution[.] If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw[.]

16. 16 Model Rule 1.4(a)(2) & (b) A lawyer shall: (a)(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

17. 17 MR 6.1, Comment 1 Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.

18. 18 MR 6.2 A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause[.]

19. 19 Evolution of Rules Canons of Ethics – 1908 Model Code of Prof. Resp. 1970 Model Rules of Prof. Conduct 1983 (“Kutak Report”) Model Rules of Prof. Conduct 2002 (“Ethics 2000”) Restatement of Law Governing Lawyers 2000

20. 20 Model Rules Preamble [1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

21. 21 MR 8.4 MISCONDUCT It is professional misconduct for a lawyer to: *** (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud,deceit or misrepresentation;

22. 22 MR 8.4, comment 2 Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.

23. 23 CA BUS & PROF § 6106 The commission of any act involving moral turpitude, dishonesty or corruption,whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension. If the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor

24. 24 MR 8.3 REPORTING PROFESSIONAL MISCONDUCT a)A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

25. 25 Model Rule 8.3 Comment [3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense.... This Rule limits the reporting obligation to those offenses that a self- regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

26. 26 MR 8.3(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

27. 27 CA RPC 1-200 (B) A member shall not further an application for admission to the State Bar of a person whom the member knows to be unqualified in respect to character, education, or other relevant attributes.

28. 28 MRPC 8.1 [A] lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:... (a)knowingly make a false statement of material fact; or (b)fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.