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Summary of Contents
Contents
Table of Problems
Preface to the Fourth Edition for Teachers and Students
Acknowledgments
A Note to Students About Updates to This Book
Introduction
A. Ethics, morals, and professionalism
B. Some central themes in this book
C. The structure of this book
D The rules quoted in this book: A note on sources
E. Stylistic decisions
Chapter 1: The Regulation of Lawyers
A. Institutions that regulate lawyers
B. State ethics codes
C. Admission to practice
Chapter 2: Lawyer Liability
A. Professional discipline
B. Civil liability of lawyers
C Criminal liability of lawyers
D. Client protection funds
E Summing up: The law governing lawyers
Chapter 3: The Duty to Protect Client Confidences
A The basic principle of confidentiality
B. Exceptions to the duty to protect confidences
C. Use or disclosure of confidential information for personal gain or to benefit another client
D. Talking to clients about confidentiality
Chapter 4: The Attorney-Client Privilege and the Work Product Doctrine
A. Confidentiality and attorney-client privilege compared
B The elements of attorney-client privilege
C. Client identity
D. Waiver
Table of Rules, Restatements, Statutes, Bar Opinions, and Other Standards Index
D Client protection funds
E. Summing up: The law governing lawyers
Chapter
3: The
Duty to Protect Client Confidences
A The basic principle of confidentiality
1. Protection of “information relating to the representation of a client”
Problem 3-1: Your Dinner with Anna
2. Protection of information if there is a reasonable prospect of harm to a client’s interests
3. The bottom line on informal communications
4. Additional cautions about protecting client confidences
B Exceptions to the duty to protect confidences
1. Revelation of past criminal conduct
Case study: The missing persons: The defense of Robert Garrow
Problem 3-2: The Missing Persons, Scene 1
Problem 3-3: The Missing Persons, Scene 2
The real case
The Belge case
People v Belge
People v. Belge (appeal)
Problem 3-4: The Missing Persons, Scene 3
2. The risk of future injury or death
Problem 3-5: Rat Poison
3 Client frauds and crimes that cause financial harm
a. Ethics rules allowing revelation of client crimes or frauds to prevent, mitigate, or remedy harm to others
b. Enron and the Sarbanes-Oxley Act
Subsequent developments in the implementation of Sarbanes-Oxley
Problem 3-6: Reese’s Leases
4. Revealing confidences to obtain advice about legal ethics
5 Using a client’s confidential information to protect the lawyer’s interests
6. Revealing confidences to comply with a court order or other law
7. Revealing confidences to prevent certain conflicts of interest
C. Use or disclosure of confidential information for personal gain or to benefit another client
Problem 3-7: An Investment Project
D. Talking to clients about confidentiality
Chapter 4: The Attorney-Client Privilege and the Work Product Doctrine
A Confidentiality and attorney-client privilege compared
1. Ethics law versus evidence law
2. Difference in scope
3. Different methods of enforcement
4. When attorney-client privilege is invoked
5 Why study a rule of evidence in a professional responsibility course?
6. Source of the privilege
B. The elements of attorney-client privilege
1. Communication
2. Privileged persons
3 Communication in confidence
4. Communication for the purpose of seeking legal assistance
C Client identity
D. Waiver
1. Waiver by the client
2 Waiver by the lawyer
3. Waiver by putting privileged communication into issue
4 Waiver as to a conversation by disclosure of part of it
5. Compliance with court orders
Problem 4-1: Murder for Hire
E The crime-fraud exception
1. No privilege if a client seeks assistance with a crime or fraud
2 Procedure for challenging a claim of privilege
3. The potential importance of privilege claims in litigation
F. Revelations permitted or required by the ethics codes
G. The death of the client
1. Introduction
Problem 4-2: A Secret Confession
2. The suicide of Vincent Foster
a. Factual background
b The Supreme Court evaluates the privilege claim
Swidler & Berlin v. United States
H The work product doctrine
1. Work product prepared in anticipation of litigation
2. Origins of the work product rule
3. Materials not created or collected in anticipation of litigation
4. A qualified protection
5 Protection of a lawyer’s “mental impressions”
6. Protection of work product, not underlying information
Jones v Barnes
2. Clients with diminished capacity
a. Clients who may have mental impairments
Problem 5-4: The Package Bomber
Problem 5-5: Vinyl Windows
Problem 5-6: Tightening the Knot
b. Juveniles
Frances Gall Hill, Clinical Education and the “Best Interest” Representation of Children in Custody Disputes: Challenges and Opportunities in Lawyering and Pedagogy
Problem 5-7: The Foster Child
E. Terminating a lawyer-client relationship
1. Duties to the client at the conclusion of the relationship
Problem 5-8: The Candid Notes
2 Grounds for termination before the work is completed
a. When the client fires the lawyer
b. When continued representation would involve unethical conduct
c. When the lawyer wants to terminate the relationship
d. Matters in litigation
e When the client stops paying the fee
f. When the case imposes an unreasonable financial burden on the lawyer
g When the client will not cooperate
3. Fees
Chapter 6: Conflicts of Interest: Current Clients
A An introduction to conflicts of interest
1. Why the study of conflicts is difficult
2. How the conflicts chapters are organized
3. How the conflicts rules are organized
B. General principles in evaluating concurrent conflicts
1 Rule 1 7
a. Direct adversity
b. Material limitation
2. How to evaluate conflicts
3. Nonconsentable conflicts
a The lawyer’s reasonable belief
b. Representation prohibited by law
c. Suing one client on behalf of another client
c Communication about fee arrangements
Problem 9-1: An Unreasonable Fee?
d. Modification of fee agreements
Problem 9-2: Rising Prices
2. Regulation of hourly billing and billing for expenses
Patrick J Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession
Lisa G Lerman, Scenes from a Law Firm
3. Contingent fees
a. In general
b. Criminal and domestic relations cases
4. Forbidden and restricted fee and expense arrangements
a Buying legal claims
b. Financial assistance to a client
Problem 9-3: An Impoverished Client
c. Publication rights
d. Advance payment of fees and nonrefundable retainer fees
5 Fee disputes
a. Prospective limitations of lawyers’ liability and settlement of claims against lawyers
b. Fee arbitration
c Collection of fees
d. Fees owed to a lawyer who withdraws or is fired before the matter is completed
6. Dividing fees with other firms or with nonlawyers
a. Division of fees between lawyers not in the same firm
b Sharing fees with nonlawyers
7. Payment of fees by a third party
B Lawyer as custodian of client property and documents
1. Client trust accounts
2. Responsibility for client property
a. Prompt delivery of funds or property
b. Disputes about money or property in lawyer’s possession
c Lawyers’ responsibilities to clients’ creditors
3. Administering estates and trusts
C. Conflicts with lawyers’ personal or business interests
1 In general
2. Business transactions between lawyer and client
3 Gifts from clients
Harry I Subin, The Criminal Defense Lawyer’s “Different Mission”: Reflections on the “Right” to Present a False Case
c Statements by lawyers during jury trials
H. Lawyers’ duties in nonadjudicative proceedings
Chapter 12: Lawyers’ Duties to Adversaries and Third Persons
A Communications with lawyers and third persons
1. Deception of third persons
a The duty to avoid material false statements
Problem 12-1: Emergency Food Stamps
b. Lawyers’ duties of truthfulness in fact investigation
The Gatti case
Note About Gatti
c Lawyers’ duties of truthfulness in negotiation
d. Receipt of inadvertently transmitted information, including metadata
e. Obligation of disclosure to third persons
2. Restrictions on contact with represented persons
The Messing case
3 Restrictions on contact with unrepresented persons
Problem 12-2: The Complaining Witness
4. Respect for the rights of third persons
Problem 12-3: The Break-In
Note: Stolen documents as evidence
B Duties of prosecutors
Ken Armstrong & Maurice Possley, Trial and Error, Part 1: Verdict: Dishonor
1. Undercover investigations
Problem 12-4: The Prosecutor’s Masquerade
Problem 12-5: The Corrupt Governor
2. Required investigation by prosecutors before charges are filed
3 Concealment of exculpatory evidence
The Duke lacrosse case
4. Unreliable evidence
5. Pretrial publicity
6. Enforcement
Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take
Prosecution Discipline Seriously
C Conduct prejudicial to the administration of justice
Problem 12-6: A Letter of Commendation
D. Are lawyers really too zealous?
Ted Schneyer, Moral Philosophy’s Standard Misconception of Legal Ethics
Chapter 13: The Provision of Legal Services
A. The unmet need for legal services
B Sources of free legal services for those who cannot afford legal fees
1. Right to counsel for indigent litigants
a. Criminal defendants
Richard C. Dieter, With Justice for Few: The Growing Crisis in Death Penalty Representation
b Parties in civil and administrative proceedings
2. Civil legal aid
a Legal Services Corporation
Alan W. Houseman & Linda E. Perle, Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States
Problem 13-1: Restrictions on Legal Services
b. Other civil legal services
c. The IOLTA controversy
3. Fee-shifting statutes
a Fee waiver as a term of a settlement
b. Who is a “prevailing party ” entitled to attorneys ’ fees?
Margaret Graham Tebo, Fee-Shifting Fallout
4 Pro bono representation
Judith L. Maute, Changing Conceptions of Lawyers’ Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations
Problem 13-2: Mandatory Pro Bono Service
5 Loan forgiveness and scholarships for public service lawyers
C. Restrictions on participation by nonlawyers in providing legal services
1. Unauthorized practice of law statutes
David C. Vladeck, Statement Before the ABA Commission on Nonlawyer Practice
Problem 13-3: Special Education
2. The prohibition of multidisciplinary practice
3 The prohibition of nonlawyer investment in law firms
Problem 13-4: Service to the Poor and Middle Class
Chapter 14: The American Legal Profession: Past, Present, and Future
Table of Problems
Chapter 1: The Regulation of Lawyers
1-1 The New Country
1-2 Weed
1-3 The Doctored Resume
Chapter 2: Lawyer Liability
2-1 The Dying Mother
2-2 “I’m Not Driving”
2-3 Exculpatory Evidence
2-4 The Little Hearing
Chapter 3: The Duty to Protect Client Confidences
3-1 Your Dinner with Anna
3-2 The Missing Persons, Scene 1
3-3 The Missing Persons, Scene 2
3-4 The Missing Persons, Scene 3
3-5 Rat Poison
3-6 Reese’s Leases
3-7 An Investment Project
Chapter 4: The Attorney-Client Privilege and the Work Product Doctrine
4-1 Murder for Hire
4-2 A Secret Confession
4-3 Worldwide Bribery
Chapter 5: Relationships Between Lawyers and Clients
5-1 The Washing Machine
5-2 A Desire to Investigate
5-3 Torture
5-4 The Package Bomber
5-5 Vinyl Windows
5-6 Tightening the Knot
5-7 The Foster Child
5-8 The Candid Notes
Chapter 6: Conflicts of Interest: Current Clients
6-1 The Injured Passengers, Scene 1
6-2 Food Poisoning
6-3 I Thought You Were My Lawyer!
6-4 The Injured Passengers, Scene 2
6-5 The Prisoners’ Dilemma
6-6 Top Gun
6-7 The Secret Affair
Chapter 7: Current Client Conflicts in Particular Practice Settings
7-1 A Motion to Disqualify
7-2 My Client’s Subsidiary
7-3 Police Brutality, Scene 1
7-4 Police Brutality, Scene 2
7-5 Police Brutality, Scene 3
7-6 Termination of Parental Rights
7-7 Representing the McCarthys
7-8 Two Masters
Chapter 8: Conflicts Involving Former Clients
8-1 Keeping in Touch
8-2 Toxic Waste
8-3 A Brief Consultation
8-4 The Fatal Shot
Chapter 9: Conflicts Between Lawyers and Clients
9-1 An Unreasonable Fee?
9-2 Rising Prices
9-3 An Impoverished Client
Chapter 10: Conflicts Issues for Government Lawyers and Judges
The problem-based approach
This book offers opportunities to explore ethical dilemmas that have actually arisen in practice, some of which have resulted in published judicial decisions. While we have excerpted or summarized some important judicial opinions in the book, we have transformed a larger number of cases into problems for class discussion. Instead of reprinting the appellate opinions, we have presented the essential facts of these cases as one of the lawyers saw them, walking the cases backward in time to the moment at which the lawyer had to make a difficult choice based on both ethical and strategic considerations. Rather than building the book primarily around predigested legal analyses by appellate judges, we invite students to put themselves in the shoes of lawyers who face difficult choices among possible actions. The dilemmas in most of our problems are based on tough situations that have confronted real lawyers
Evaluating ethical dilemmas in class will help students to handle similar quandaries when they encounter them in practice A student who has worked through the problems assigned in this course will know where in the law a particular issue might be addressed, how to begin to analyze the relevant rules, and what questions to ask. Grappling with these problems also will increase students’ awareness of ethical issues that otherwise might have
gone unnoticed.1
We set out to write an introduction to the law governing lawyers that students would enjoy reading. Studies show that by the third year of law school, the class attendance rate is only about 60 percent and that a majority of those students who do attend class read the assignments for half or fewer than half of the classes they attend 2 Increasingly, law students use their computers to play solitaire or write e-mail during class 3 Law schools seem to be failing in their efforts to retain the interest and attention of their students, particularly third-year law students. We have sought to write a book whose content and methodology capture and sustain the reader’s interest. This aspiration is reflected in our choice of topics and materials, our concise summaries of the law, our challenging problems, and our use of graphic materials
Defining features of this book
We built a number of unique features into this book based on our experience teaching professional responsibility classes:
Almost every section of the book begins by summarizing the relevant doctrine that provides the legal background students need to analyze the problems that follow. Most summarized rules and doctrines appear in question-and-answer format. This structure provides an ongoing roadmap, anticipating readers’ questions and forecasting the content of the next subtopic.
Numerous concrete examples, set off from the text, further illustrate the general doctrinal principles.
This book has very few judicial opinions. Law students read an abundant number of judicial opinions in other courses Professional responsibility is best taught using a problem-based approach. The few opinions in the text, which will be familiar to teachers of professional responsibility, are edited carefully to present only the most relevant sections. Some opinions are summarized rather than reprinted so that students can move quickly to the book’s challenging application problems. Reproduced court opinions contain both original headings and our inserted ones to help orient students to the logic of the opinions.
The approximately 70 problems that appear in the book are designed to focus class discussion and immediately engage students by describing real-life ethical dilemmas. The problems present facts from real cases in narrative form to allow students to analyze the issues as if they were the lawyers facing those dilemmas. This structure tends to produce livelier discussion than does the autopsy method traditionally used in law classes, in which teachers invite post hoc dissection of court opinions
Pertinent rules of professional conduct are included in the book so that students do not need to flip constantly back and forth between this text and a statutory