Titulo

Ethics Outline – Denay Knope – Pizz – Spring 2009

1

Judicial & Federal Regulation of Lawyers
CLASS Text:
 Traversing the Ethical Minefield –
 Ethics = Law of Lawyering
 The Law Governing Lawyers, 2008-2009 Edition (Martyn, Fox, & Wendel)  Rules/Standards

EXAM Walk Through

 Who is the Client
 Control & Communication
o 1.2 - Control
o 1.4 - Communication
o 1.13(organizational client), 1.14 (C w/ diminished capacity)
 Competence Rule 1.1 & 1.3 (diligence)
o Malpractice - prima facie case (includes A-C relationship, DBCD)
o Negligent misrepresentation
o Ineffective Assistance Counsel (If Criminal Case) Strickland test
 Confidence
o A-C Privilege (8-factor Wigmore Test)
o A-C Privilege Exceptions

Name/payment

Waiver

Testamentary

Crime/Fraudo Ethical Responsibility - 1.6 (confidentiality), 1.8(b) (info used to disadvantage),
1.9(c)(1) (use to disadvantage former client)
o 1.6 Exceptions (Lots)
 Conflicts
o (1) L v. Client (1.7, 1.8)
o (2) 3P Influence (1.7, 1.8)
o (3) Concurrent Clients (1.7)
o (4) Past Clients (1.9)
o (5) Gov’t Lawyers (1.11, 1.12)
o (6) Vicarious Disqualification

1.10

1.11

1.12
o (Note -Breach of 2 thru 5 = Breach of fiduciary duty)
 Limits to Advocacy
o Tribunal

3.1, 3.2, 3.3, 3.4, 3.9, FRCP 11, 26, 37

Other sanctions
o 3rd Party

1.6

4.1
o Within limits of Law (criminal, civil, court order)
 Withdrawal
o 1.6
 Fees
 Advertising
o 7.1 - no false or misleading communication
o 7.2 - appropriate medium
o 7.3 Solicitation

SOURCES OF ETHICS

o ModelRules of Professional Conduct – drafted by experts (Similar to UCC). Unlike UCC passed by state legislature, it’s the Supreme
Court in a state that has responsibility for admitting and disciplining lawyers. Individual states decide if they like the n ew rules or not.
Last year, Ohio adopted 42 Model Rules. State S.C. in jurisdiction is ultimate arbiter.
o Code of Professional Responsibility (CPR,Code) - we aren’t responsible for this, but need to be aware of it. Some cases cite a code
section and not a Model Rule. MR sometimes codify codes. This is the Old Code.
o Related Statutes - Lots of statutes tell lawyers what they can/can’t do
 Related Areas of Law
o Agency Partnership - a lot of ethics rules come from law of agency. Partners are responsible for torts and contract s ofpartners.
Agency stuff comes up a lot.
o Civil Procedure - Mostly Rule 11 and Rule 26 and other discovery rules. Work product privilege can also be an issue (also evidence)
o Constitutional Law - a few exceptions to SC discipline. The Supreme Court has spoken to a few ethics issues. If state court says they
can discipline under advertising law, a challenge can be brought whether the law violates 1stAmd. Also 6th Amd. Violations
o Contracts - lawyers ender in to K. (fee K, when lawyer/client relationsh ip begins)
o Criminal Law/Procedure - Lawyers can assist in a crime. Procedure - ineffective assistance.
o Evidence - main way it comes up is via attorney/client privilege.
o Torts - lawyer negligence
o Remedies - b/c lawyers are agents and have fiduciary relationship, there are someremedies that aren’t available.

ETHICIAL THEORIES

 Rights-Based / Deontological - use to be focused on religion, not so much anymore. Early theories were based on moral duties; big in
medical ethics.
o Focus on Act - you are supposed to focus on the character of the act itself, not so much on the consequences
o Maxim: persons as ends, not mreans:respect - wrong to use people as means. Peopleare morally autonomous beings. (ex. person
comes to hosp. in coma, violation of this reasoning to use this person for research)
o Violates - lawyers violate if they lie to meet clients ends. Maybe you don’t like what client is doing or think client is stupid violation by being paternalistic; or violating w/ 3rd party.

Agency Theory is intertwined with deontological
 Consequential,...