Professional Responsibility and Legal Ethics
Syllabus and Course Guide
Introduction to the Regulation of the Legal Profession
This class will first introduce the various sources of ethics laws and rules, which may differ from state to state (our course will focus on rules of general applicability). Next we will explore the essentials of how and why a legal professional must report misconduct. We will discuss the types of discipline an ethical lapse may trigger, such as sanction, disqualification, and civil and criminal liability. We will explore what it means to be engaged in the “unauthorized practice of law” –what a non-lawyer can and cannot do regarding the practice of law. Finally, we will touch on the management and supervision of a law firm in the context of the ethical rules.
Reading:
Chapter 1: Introduction to the Legal Profession
- Introduction to Legal Ethics
- Sources of ethics law
- Reporting Misconduct
- Discipline, sanction, disqualification
- Civil and criminal liability
- The Unauthorized practice of law
- The Management of Law Firms: Supervisors and Subordinates
Duties to the Client and Client’s Rights
Class Two will explore the duties that a legal professional owes to a client, including loyalty, advocating zealously, diligently, and competently. We will discuss the essentials of safeguarding client property – perhaps most importantly, how to handle a client’s money. Then we will discuss the need to inform the client as to the legal issues involved in a case and provide the client with a framework for understanding the kinds of decisions a client makes and the kinds of decisions the lawyer makes during the representation. Generally, a client makes substantive decisions – whether or not to settle, for example - while a lawyer concentrates on strategy.
Reading:
Chapter 2: Duties to the Client and the Client’s Rights
- Loyalty, Advocating Zealously, Diligence, Competence
-Safeguarding Client Property
-What the Client Decides in a Case
-What the Lawyer Decides in a Case
In this class, we will start by focusing on situations in which in which an attorney may or must withdraw from a representation. We will look at a key difference in the wording of the ethical rules, between the words “must withdraw” that sometimes appear in ethical rules and the words “may withdraw,” which appear at other times in the rules. Then we will consider the duties that a legal professional owes, particularly to the adversary and to the court. For example, the rules always require “candor to the tribunal.” Without it, truth cannot be ascertained, and the system fails.
Reading:
Chapter 3: Duties to Others
-Withdrawal and Disqualification
- Duties To the Opposing Party
- Duties To the Court
The Duty of Confidentiality and Attorney-Client Privilege
The rules regarding confidentiality, attorney/client privilege, and the work product doctrine are among the most critical in the litigation process and in the practice of law in general. It is crucial to the representation of a client that a legal professional know what may be disclosed to whom and what must be kept confidential. In this class, we will begin our discussion of the confidentiality rules. We will discuss the two primary doctrine relating to the protection of client information: the rule of attorney-client confidentiality and the evidentiary attorney-client privilege.
Reading:
Chapter 4: Confidentiality
- Confidentiality
- Attorney/Client Privilege
The Work Product Doctrine and Other Confidential Relationships
In this class, we will first discuss the “work product doctrine,” a doctrine which protects certain proprietary information produced during legal representation from being discoverable by the adversary. This rule often inspires heated debates regarding what evidence is discoverable and what evidence is protected. A case’s outcome may hinge on whether a particular document is protected by these rules. Next, we will discuss other relationships that are deemed by the law to be worthy of protection to the extent that the law will prevent confidential produced in the course of those relationships from being introduced as evidence in a court room.
Reading:
Chapter 4: Confidentiality
- The Work Product Doctrine
- Other Privileged Relationships
Midterm Examination
Over the course of their careers, legal professionals may represent clients involved in matters that involve or may compromise the representation of other client. Rules have been drafted to govern when a lawyer is disqualified from representing a client in a particular case due to a conflict of interest. An attorney who has served on a litigation team on behalf of a corporate client in one matter, may be barred from representing that client’s adversary in another matter. We will also discuss when an entire firm can be disqualified from representing a client because of a conflict that one of its members may have. Finally, we will discuss what a former government employee must consider if she intends to use in the private sector the legal skills and contacts she gained which working for the government.
Reading:
Chapter 5: Conflicts of Interest
-“The Limits to representation”
- Former Clients Rules
- Imputed Disqualification
- Government Service and Going Private
This class will explore what kind of business an attorney may engage in with a client. We will discuss what rules must be followed if a lawyer drafts an instrument (particularly a will) which includes a gift to the lawyer. Furthermore, we will discuss the rules an attorney must follow if he is on a media-worthy case and/ or if he plans to negotiate for literary or media rights. At the end of the class we will cover one of the thornier issues in the study of conflicts, regarding corporate representation. When is a legal professional representing the corporate entity, and when is she representing the employee?
Reading:
Chapter 5: Conflicts of Interest
-Doing Business With Your Client
-Drafting yourself a gift
-Negotiations for literary or media rights
-Providing financial assistance
-Other Conflict of Interest Issues
-Conflicts in corporate representation
In this class, we will explore some of the practical, business aspects of being a legal professional. A law firm is a business, and unscrupulous practitioners sometimes face the temptation to flirt with the ethical rules to make a quick buck. For example, it is entirely unethical for a personal injury attorney or his staff to visit an accident victim’s hospital room unannounced in order to drop off a business card and discuss the advantages of his representation. “Ambulance chasing,” as it is pejoratively put, violates the rules of professional responsibility (as well as strictures of common decency). We will also discuss legal representation fees, advertising, and more on client solicitation.
Reading:
Chapter 6: “Lawyering”
-Fees
-Advertising
-Solicitation of clients
Legal professionals need to know about courtroom decorum and the propriety of communication with various players in the judicial system at various times. When is it okay to have a private discussion (“ex parte” discussion) with the judge presiding over a case? Legal professionals must avoid even the appearance of impropriety. What if you meet a juror deciding your case on line at the supermarket? Can you discuss anything about your case, or anything at all, for that matter? We will also cover communications with witnesses and adverse parties to the case. Finally, we will discuss the types of statements an attorney may and may not make during the course of a court proceeding.
Required reading:
Chapter 7: Judges, Jurors, Witnesses, and Courtroom Decorum
-Communication with Judges: Avoiding Impropriety and Performing Impartially
-Communication with Jurors
-Communication with Witnesses
-Courtroom Decorum
Final Examination