Comparative Legal Professions Notes

Introduction Class 1 Tragic Choices and the Lawyer

Tragic choices- something bad has to happen o Choosing between 2+ bad things How do you know the choice is correct and how to you justify the choice? o Religious/moral/rules/law/professional rules/democratically decided (majority view)/obey orders/coin toss/conscientious objection German bombers dropped explosives at Coventry Cathedral Winstons Churchills choices (after breaking the code): o Defend Coventry would let Germans know code had been broken o Let German bombers go ahead (this was the result and destruction occurred) Dudley v. Stevens o Criminal law defense of necessity (D and S ate cabin boy instead of drawing lots on life boat in storm on high seas) Course is about justification for choices you are going to make!!! (what is the right choice and what is your justification for that choice) Hypothetical: o You are at home and your cell phone rings on other end is stranger who told you what happened group of people visited cave on trip w/ 24-25 people trapped in cave (like Chilean miners who ignored rumbling danger signs) man got stuck while trying to exit cave danger: tide is coming in, when it comes in, cave will fill up, no other way out, and everyone will drown UNLESS they blow up passageway where man is stuck (through his orifice) death of man will be painless and the rest of the trapped cave dwellers will escape what advice do you give? Tragic choice because someone has to die (either 1 or 26) Blow him up b/c of utilitarianism save 26 rather than the 1 who would die anyways (less painful/more humane as well) o Change scenario: When tide comes in, everyone else would die EXCEPT stuck man Situation becomes is it now right to kill 25 people and save 1 or kill 1 and save 25 What to do now? ABA standard 302(A)(5) o A law school shall require that each student receive substantial instruction in: The history Goals Structure Values And responsibilities of the profession and its members Why did ABA introduce rule: o Watergate scandal 1972 Democratic national convention broken into by Nixon (one of many illegal activities carried out by Nixons staff) o Many lawyers involved in Watergate 1

Dont think like a lawyer in this class just think!!! Jargon: o Morals/morality- its what you think (its that persons personal opinion) about what is right or wrong Ex.) hypothetical about blowing up man stuck in cave o Ethics- professional ethics what is the right or wrong thing according to a professional ethic what should a lawyer do? (what is right for a lawyer to do) 3) Zabella v. Pakel hypo: P should repay Z morality perspective P not legally obliged to repay Z based on SOL ethical perspective (however, as a lawyer you have the choice to tell the law or to not tell the law) o Statute of Limitations (SOL)- debt is unenforceable after the period as expired Purpose is to protect courts b/c after time, evidence becomes stale Zabella v. Pakel o Judge said jury justified in thinking P should feel obliged to pay honest debt to Z but judge felt obliged to follow the law of Illinois LAW OVERRIDES MORALITY o SHOWS THAT LAW AND ETHICS CAN OVERRIDE MORALITY Unethical to break client confidentiality even though to do so would be unquestionably moral o Spalding v. Zimmerman Defense lawyers (and doctor) only knew that P could drop dead at any moment and didnt tell him was it ethical for them to keep the confidentiality even in this scenario? Personal question: when if ever should personal morality trump ethical obligation overriding even the law Lawyers are supposed to exercise independent, professional judgment o Implies that there are honest differences of opinions/professional choices o Morality vs. ethics Root Committee 1920 official view of ABA about lawyers o Despite the diversity of human relationships o Intellectual requirements in all cases substantially the same o High moral character o Substantially the same intellectual preparation In England, anyone can offer legal advice lawyers in UK need a 2 year apprenticeship (in U.S. only lawyers can) Questions: o Jude Right? (law must be followed) yes 100% o Stuck man killed (2 scenarios)? Yes: 22/14 No: 4/12 o Is proportion of people entering law school now more/less blue collared working class background than 50 years ago? Yes: 24/25 No: 1/25 o Should American attorney be allowed to accept/reject someone who asks for their help? Yes: 100% (English Barrister has to take case) o Should client make statement about selling drugs to police? No: 100% 2

The standard Conception of Legal Ethics: Neutrality and Partisanship -Class 2

In principle, should the death penalty be allowed: Yes: 1/3 (deterrence/retribution) No: 2/3 Prosecutorial Misconduct- charging accused w/o substantial evidence or other such things As a lawyer, you do a dispassionate job so you can see both sides Role differentiation- I believe in the death penalty but could not be the executioner Boone and Levin make the point that being a lawyer is not like doing any other job Lawyering is a learned profession and has certain privileges (FROM BOOK) o Lawyer works for client but is also an officer of the court (have a public as well as a private function) Private function work for client Public function role in system as an officer of the court o Law has a public interest (public role) Ex) Stuck man scenario 2: 25 people stuck in cave, man is stuck at only exit, water will kill everyone except the stuck man, 1 person has dynamite and 4 people are willing to be executioner as lawyer you defend/dont defend and why? The standard conception of legal ethics: o Non-accountability/neutrality Put aside personal views o Professionalism/Partisanship Do best you can or Withdraw Maximize the likelihood that your client will prevail The lawyer is not morally, ethically, or legally responsible Role is not to achieve justice ABA Model Rules Preamble [2] as advice EXAM: o No right or wrong answers (graded on how you justify your answer) Based on materials read and classes attended o Tests the way in which you use the materials in the course to justify the exam answer Assigned readings + 18 classes = materials of the course o 2-3 questions o Open book Standards and conceptions of legal ethics what should a lawyer do for a client Terrorist Osalarocki ordered to death by Obama w/o due process o Not entitled to judicial due process when there is a war Timmothy McVey- US sniper who had breakdown and accused of blowing up fed building in Oklahoma (Oklahoma Bomber) US attorneys dont have to take the case b/c they dont have the cab-rank rule (whether it is assigned or unassigned) Cab-rank rule- barristers (not solicitors) dont have a choice to take an assigned case (must take it but dont have to take an unassigned case) and have to take the next person in line in the order the brief arrives 3

Neutrality, Role Differentiation and Amoral Technician Class 3

Barrister takes next case subject to: Have time (dont take if no time to do it) Have to be able to be paid a reasonable fee Have to be competent (avoid professional embarrassment) Professional Embarrassment- cannot represent a client (or potential client) for some reason such as lying denotes a desire to withdraw from the case b/c something has occurred that has made it impossible for the lawyer to continue In US you dont have to take an assigned case if you find the client repugnant or have a fundamental disagreement with what the client wants to do Standard conception of legal ethics: o Neutrality- set your personal views/morals aside you are not accountable b/c you are merely representing the client Not personally, legally, or morally responsible for what you do or what you achieve or for taking the case WRONG B/C US CAN CHOSE NOT TO TAKE THE CASE Right for barristers b/c only accountable choice they made was to become a barrister If dont put aside your personal views then you wont do a good job Danger of oligarchy of lawyers- not getting done what clients want but rather what lawyers want o Partisanship- lawyer must take the clients side even when she considers the client to be morally wrong Lord Brougham - Chancellor of England and Whales statement: An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means, and expedients, and at all hazards and costs to other persons, and among them, to himself, is his first and only duty (client centered role); and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others (disregard the destruction caused). Separating the duty of a patriot from that of an advocate (separate humanity/citizenship/membership to a community such as the Jewish community), he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion. Quote about lawyers advocacy Cannon 7 of ABA of model code: zealous advocacy with the limits of the law Not defending drug dealers, but rather defending a drug dealer Are all client-lawyer relationships characterized by zealous advocacy? o US courts dont like over-zealous behavior (try to take word out of the rules) limited to advocacy John Adams defended clients who were involved in the Boston Massacre Questions: o Brougham is asking: what justifies the standard conception (what justifies you preferring the client over the rest of the world/victims)? o Does it make a difference what role/function you are actually performing (prosecution/defense/corporation/individual)? 4

Role differentiated behavior- what justifies your action may depend on your role o Examples: lawyer vs. citizen; parent telling child not to leave house vs. stranger saying the same thing o Significance for lawyer: as a lawyer you can ignore a whole raft of moral considerations/factors b/c youre a lawyer indifferent to the variety of ends/consequences Amoral Technician- neither moral nor immoral (no moral function/indifferent to moral issues/set own morals aside) with skills/expertise that are needed by people to achieve certain goals; a term for a lawyer o Justification: if our morals come into the equation, we are substituting our moral perspective for the clients o If put your own morals first, you would shift to an oligarchy of lawyers ALL OF ABOVE UNDERPINS THE CAB-RANK RULE!!!!! Important ideologies of representation: o US rules say basically the same thing lawyers representation of client does not constitute an endorsement of the clients political, economic, moral, or social views (or anything) o Representing a client does not constitute approval of the clients views or activities o If you cant represent b/c your personal views overdraw, you can refuse to take the case or withdraw b/c you wont be able to do a good job (dont want to do a half-baked job) Core values of the legal profession: o Competence- have to be able to do the job Barristers role differentiation is much stronger than that of a US attorney b/c they cannot refuse a case Why is cab-rank rule important? o Ideology (adds to ideological strength of what the lawyer does) o Barristers need to absorb rule into their psyche o Brings a sense of independence (feel like an officer of the court) Horice Rumpel of the bailee (fictional criminal defense barrister) quote: o Spent whole life being his clients rather than being himself barristers become their clients (we did this rather than my client did this) What justifies asking personal, intrusive questions? Should a lawyer coach his client or tell him what to say? Role morality- is what a lawyer does justifiable because the person is a liar o The idea that the thing done is ok because of the role that person has (ie. A parent to a child vs. a stranger to a child) o Lawyers are often case as amoral technicians and skillful manipulators of legal rules in their clients legal interests, who must suppress their own moral convictions Adversary system of excuse/justification- another name for role morality Should a lawyer brutally cross examine a truthful rape victim? o Rape shield laws- restrict what you can ask to a rape victim o Rules allow you to be brutal 5

Partisanship and Role Morality Class 4

You have to do everything necessary to achieve your clients goals as long as they are legal/ethical its a tragic choice o It is an adversarial system By representing defendant you are promoting justice by promoting justice to them through the system If the system requires you to do something and you have sufficient faith in the system then it justifies what you do Elements of the adversarial system: o Burden of proof on prosecution (in criminal case its proof beyond a reasonable doubt) o A presumption of innocence o Right to a jury trial Job of Defense lawyer is to test every element of the prosecutions case/evidence Partisanship- how far do you go in that role? o Blackstone- its better that 10 guilty person go free than 1 innocent person get convicted It is in your clients interest to brutally cross-examine to create a reasonable doubt (a reasonable doubt for a reasonable fee) o Factual guile is not legal guilt but how far do you go? Job of lawyer is to zealously defend/prosecute in the best of their allowable ability Tory Bowen was raped in a hotel when she was drunk but in court could not say words like rape, sexual assault, and so forth because defense argued that those are technical legal terms and thats what were here to decide words are very powerful In UK, no cross examination is not allowed about sexual behavior/sexual history without the permission of the judge UK prohibits statements/questions that are morally scandalous or that are intended only to vilify, insult, or annoy o On that lawyers moral standard system who is asking questions Kobe Bryant accused of sexually assaulting a hotel worker KB said consensual in CO which had rape shield laws rape shield laws violated b/c she named the victim in court justified by saying that her client was facing a life sentence so it was necessary to use every strategy available case dropped by prosecutors b/c woman refused to testify False accusations/allegations are made but we dont know which ones are false/true its a job for the judge/jury/system to decide Alan Dirschawitz says if a criminal defense lawyer may, a criminal defense lawyer must and when the vast majority are factually guilty you are no more ethical defending the innocent rather than the guilty, you are just doing an easier job What about product liability? o Dalkon Shield (IUD intra-contraceptive device that caused severe injuries/illness to women who used it) Inflammatory pelvic disease can be a result of an STD from multiple sex partners Can go into sexual history of women by judge decree Some are meritorious and some are frivolous o

Aggressive questioning of history causes many women to remove themselves from case or to receive less money DS asked defense lawyers to do this and they did Judge said by attacking character of the women, defense lawyers ruined families, destroyed women, and destroyed carriers Gang rape case in UK shows that it is the clients fault (client got it in the neck)for brutal cross examination whereas US cases put blame on brutal cross examination on the lawyers fault (lawyer got it in the neck) Lord Brougham says you disregard the destruction and devastation you cause through cross examination UK barrister: when Im defending its no holds bar will do everything he can English legal system/profession: o Divided into 2 kinds of lawyers: solicitors and barristers o Solicitors are like general practitioners (like the American attorney model) About 120k of them practicing Today, solicitors have rights of audience Brief barristers- a solicitor sends a document tied with pink ribbon and red tape saying that they are required to advise them for the case or are required to appear and present the facts o Barristers are more like specialists (they are trial advocates) Traditionally, if case going to court, the solicitor would have to refer the case to a barrister Exclusive right of audience- Traditionally, in the Old Bailey, High Court only barristers could argue 12k-13k in numbers Called to the bar in Middle Temple Has belief system that they are independent (wear wigs and gowns, represent the system, not personal anymore, cant form partnerships) o Chambers- a set of tenants in a shared building Prof. Wheelan is located in 3 paper buildings as a barrister w/ about 150 other barristers Can compete against others b/c no shared profits Solicitors cant compete b/c they share profits Barristers pay over 20% to support chambers (rent, infrastructure, etc.) o Clarks- somewhat equivalent to the US clerk and their job is to tout for fees for the barrister and find work (negotiates fees pretty much like a pimp) Rape Hypothetical Video o Detective James quote: Assume the worse and hope for the best o Dont have to give DNA sample but it is recorded in court record o Up to court to determine whether or not DNA collected w/o consent was ethical (such as from used cigarette butts left in a cell) o Attorneys Herbert 7

Ethical Dilemmas: Rules or Judgment Class 5 (The Rape Hypothetical video)

Barrister Doesnt generally defend people accused of rape Wont prosecute based on principal Reality is you go where the money is or you go where your conscious takes you Wont do job that he cant do properly hypocritical if he takes case and has very strong beliefs would not be competent Code is not followed Evades the cab-rank rule but doesnt break it if its in your area of practice you have to take it but dont have to if you wouldnt be competent Christian Solicitor Believes that the system is wrong Wont confront victim b/c she doesnt feel the system is fair to the victim Opposed to search into sexual history/past dealings/attacking credibility process Passes these cases off to another solicitor doesnt have to follow the cab-rank rule b/c she is a solicitor (solicitor advocates have to follow the cab-rank rule) Beresford-West Barrister If he doesnt like the heat he should stay out of the kitchen in reference to barristers practicing Woman who invites man over should have it in her mind that sexual intercourse is a possibility Consent occurred when she said will you please wear a condom Believes people instruct accuser how to dress and present herself in court Walks away if defendant says after the case that he actually raped the girl (but is sick about it) Separated personal views from views of clients and followed the role that a barrister should be taking (own morality returns at the end of the case) English barrister takes instructions and follows them (will bring up sexual history if instructed to do so) Hopper Solicitor Wants to know prior history/habitat of accuser Wants psychiatric information if obtained lawfully Would want diaries if they were obtained ethically (not stolen) but if obtained unethically/unlawfully then he would not Would pay for legal evidence if it was ethical evidence If told the diaries were stolen then he would be conspiring w/ a crime cares about the truth/ethics beyond all else 8

o o o

Judge Stable Not interested in morals barristers have to represent all people and follow the code/system Persons sexual history cant be used against an accuser unless they can make a strong case that it is necessary Wouldnt allow evidence that she is a single mother b/c not relevant but would allow that she brought back another man a week before or a year ago, carries condoms, and would admit the clothes she wore b/c it is relevant Largest number of scenarios where a rule is presented and not applied/it is circumvented/doesnt rule answer is not what the rule says it is Do we have to be Prussian- follow the rules exactly (in terms of collecting DNA) What is the hard and fast rule of brutal cross examination judge says there is none Sexual history cannot be used unless it is allowed by the judge as relevant evidence Williams says that fraud in the inducement is ok (can have sex for a role as long as the role is given) whereas fraud in the factum is not (if say you will give role for sex and dont then its rape) QC queens counsel senior barristers also known as a silk

Functions, Roles, and Justice in England and Wales Class 6 (Guest Speaker: Wheelans Clark, Russel Porter)
3 questions asked when interviewed for clerkship: what football team do you support, what is your handicap, and where are you from Clarks try to gain mutual trust and confidence Works ant 3PB Barristers, and sells services in: o International arbitration and disputes o Banking and commerce o Technology and Construction law o Asset and tax recovery o Employment law o Family law o Personal injury o And so on Has 10 QCs, over 15 barristers, 45 mediation advocates, and 12 mediators/arbitrators/adjudicators Last year, an alternative business structure was granted to the co-op (like Tesco) o Alternative Business Structure- can go into Tesco and not only buy groceries but also perform legal services like divorce your wife its a one-stop shop o Big 4 of supermarkets o Can also go to banks Barristers come from commercial backgrounds, others from charities Barristers are viewed as grump old baileys overweight and pinstripe look Assign work so long as there is no discrimination and does the best person for the job Pupilage- the apprenticeship before you can become a professional 9

Put together check book and appointed barrister in his role as a Clark thinks his title should be director Litigation funding is assessing risk and they have investments in various banks and brokers banks underwrite litigation and assess risk Barristers are equivalent to a consultant in the medical field and solicitors are general practitioners who always have clients on their doorstep Tesco and other co-ops give access to justice Multi-Disciplinary Practice- one stop shopping to get multiple services in multiple markets (such as legal advice and tax work or banking) What is it we are joining as lawyers (or barristers or solicitors)? Why is there a divided profesionalist country in the UK? Professiono Self-regulating occupation claim to have higher standards than that would be put in place by outside regulation o Education/specialized knowledge (restrictions on who can do it) o Work for the public good/benefit of society MOST IMPORTANT!!! Pouch on back of barrister robe is symbolism of this Touchstone of a true profession is a measure of unselfishness clients interest should predominate over the lawyers interest o Roscoe Pounds definition: a common calling in the spirit of public service Public interest justification purveys everything lawyers do lawyers are a means to achieving good ends the autonomy of clients (cant get access to the law w/o lawyers help) Access to lawyers/justice has been a perennial problem Magna Carta signed and says to no one will we delay or deny justice or right promise has not been kept o Magna Carta reflected in Supreme Court building Equal justice under the law caption on the faade of the S.Ct. building Powell says that this is An end for which our entire system exists Justice Learned Hands one commandment Thou shall not ration justice Steven Pepper set up broad justification for what lawyers do in criminal and civil context it is ok for a lawyer to help clients do something they have a legal right to do o Basic argument was that this enhances client autonomy and access to the law o Equality of access refers to the fact that when you get to a lawyer, every lawyer should do basically the same thing (do the best they can regardless of personal opinions of the client) lawyers should not engage in moral filtering o Its not our problem (lawyers) that people cant get access to us because: Primarily market system Not a primarily socialist system Lawyers cannot magically socialize the economy for legal services Much less disquiet over moral role of grocer & housing contractor than that of lawyer Think about legal service in a market context

Professionalism Class 7

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Supply side the people who are allowed to offer the service and the profession and how it arranges itself o Demand side people w/ legal needs, people who can get justice, people w/ rights, etc. If we think on supply side (US attorneys; UK anybody can advise) o Who can practice o What training is necessary o How to practice If we think of demand side we look to the clients/potential clients How might legal services be made available (Methods) o Traditional model is for lawyers to sit in office and react to telephone ringing or someone walking through the door o Through government o Through corporations o Through clinics/law schools o Legal services corporations o Sierra Club/Insurance Companies/Banks/Accountants/Etc. Get to Wal-Mart eventually How to fund legal services o Fees o Contingency fees (in US, not UK) o Insurance o Pro bono o Sierra Club (AAA, charities, law school clinics) o Private investment (shareholders or 3rd party funding) o The State o Loser pays (English rule to pay legal costs of winning side) How do we get information about legal services o Before 1977 not allowed to advertise o Advertise (individual lawyers, profession) o Solicit (person, mail, phone) o Ambulance chase o Referrals o Pay fees to intermediaries o Trade Unions/Insurance Company referrals o Media Fundamental ethical questions arise from this (2 questions): o Whose responsibility is it to make legal services available? o Who regulates the lawyers? (Can also ask who regulates the public interest and private interests?) Lawyers want to regulate both public and private interests It is in the public interest to allow lawyers to self-regulate b/c lawyers know what they need and what interests are Get control of the market by the State to endorse position through law (licensing and legal endorsement) o

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Professions are self-regulating occupations that define consumer needs and determine the way they are met (Boone) What is American Legal Profession Like? o Originally exactly like the English system o That professional control was broken by the revolution (broke English model and professional model) o In 19th Century, virtually all restrictions on practicing law were removed (Ohio first in 1802 anyone can practice no entrance requirements) o Abe Lincoln did not go to law school but was a lawyer no restrictions on attending law school (didnt have to) o Lawyers were trained through mentoring and apprenticeship o In last 90 years, there has been professionalization- the rise of professionalism Increased control over lawyers by enforcing education requirements Self-regulating the behavior of members Trying to prevent internal competition o ABA controls American law schools Why professionalize? o Cant the market root out bad lawyers? (can in UK but not US) o Milton Friedman is for open competition and against licensing agreements for lawyers o Richard Abel believes that professions try to control the market to restrict competition and increase their wealth Sees legal education as a function of professionalism o Left wing view is stated by Erold Alerbach and says that professionalization keeps working class and ethnic minorities out of the market thought that it wanted to keep out minorities and keep the profession uniform Profession is now losing control of the market and is not as easily able to answer both questions (who controls the public and private interests) o Many qualified students and women came into profession Root Committee 1920 o Despite the diversity of human relationships o Intellectual requirements in all cases substantially the same o High moral character o Substantially the same intellectual preparation Mayhew Institutions of Representation o Patterns of use of legal services reflect an interaction between o Demand- the needs of the population, and o Delivery- the social organization of the distribution of legal services o Link: (unmet) legal needs Need to go through process of naming, blaming, and claiming to go through life/legal process o Naming- wrong has occurred o Blaming- can you blame someone o Claiming- have to do something about it Legal needs are indeterminate they are the product of different things

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Mayhew talked about this when he talked about demand there is an aggregate of interest claims and potential claims (some people perceive they have a legal need, others dont, and others are unsure) Mayhew Institutions of Representation (what is it) o Organized o Established o Routinized o Method o Of providing advocacy/representation/other legal service o To those who have legal needs/interests/claims Mayhew Institutions of Representation (what is it) o Each institution possesses a peculiar set of biases o Each is more likely to stimulate o And provide for o The representation of some claims o Rather than others Receives + Generates o Ban advertising (pre-1977 in US) o Advertising (conditional) institution of representation o Solicitation- in person o Solicitation direct mailing o Solicitation after 30 days Mayhew o Right must be specified (victim must experience the violation of a right) o Right must be substantial, defensible and remediable (ought to be represented) o Set of persons with an interest in vindicating the right, and (people willing to help) o Another set with an interest in legal representation for them o The two sets must have access to one another Access is not just a function of income, it is also a function of institutions of representation o Ex. Victims of work accidents are better off in the UK than the US due to institutions of representation In US, access is just based on income Nothing unique about being a lawyer open competition and open access is way to go culminated in Legal Services Act opened up profession to being funded by anybody and joining with anybody de-professionalization is what is being authorized If we control the market, then it is our responsibility (the legal profession itself) for the legal institutions of representation Critical factor in access to justice may not be economic but the legal service themselves o Market for legal service is a problem for us for 2 reasons: o Distribution of lawyers between rich and poor is worse than the distribution of other services between rich and poor Bottom 20% on income scale (poorest) get about 5% of goods and services but get less than 1% of legal services 13

The Market for Legal Services Class 8

 Trend away from representing individuals and towards representing corporations 2 hemispheres where lawyers work in the US: o Represent large corporations o Represent individuals Individual With Disabilities Act guarantees free and appropriate education for students with disabilities o Sometimes need access to a lawyer to assure that you get this o Authorizes that a parent may be accompanied by a lawyer that is knowledgeable o Delaware S.Ct. made these statements Americans have a much higher rate of giving up in the face of difficulties than people in other countries If I as a lawyer choose you as my client, what I do for you significantly affects other people o My giving food to you and not someone else affects other people true Socialist approach Advertising How methods of institutions of representations are biased Advertising is important! Want lawyer to become visible but not too visible one of the great problems of a public profession is how do you deliver the service without compromising it 10 speed bike given if lose DWI case advertisement example 2 arguments about ambulance chasing are: o You are taking advantage by capitalizing on peoples injuries o You are helping people in need CAN run advertisement if it is truthful but CANNOT have an ad that is untruthful Advertising can be good and bad: o Can force people into believing things that arent true o Can be open and honest Attorneys complained about lingerie billboards in Chicago relating to divorce Dalkon Shield contraceptive device that led to injuries o Attorney had advertisement saying that he would give free legal advice and not collect any payment until an award was given found as a fact that 200 inquires resulted 106 lawsuits filed 2 women testified that they would not have known about possible legal remedy w/o the advert example of institution of representation Pape and Chandler biker advertisement (1-800-Pit-Bull) o S.Ct. supported bars discipline the pit bull demeaned all lawyers and hurt the publics trust and confidence in lawyers justice Solicitation Can come in many forms o Come to your house o Come to hospital o Mail Whats wrong with solicitation? o Line between solicitation and coercion is a fine one 14

 Fees

o If not for the contingency fee, lawyers would not be doing it (soliciting) Maybe we should regulate conduct and not the mere act if Im going to provide you with access to justice, I should be applauded in principle Thinking about this in terms of institutions of representation NY had rule that you cannot solicit or advertise within 30 days REASON FOR RULE: to protect victims from pressure and manipulation even though 40 wanted to sue (after metro crash) How do you make a lawyer smile for the camera? o Say fees! Eat what you kill o US lawyers must bring in clients unlike UK lawyers Money clearly corrupts some people the more money you have the more likely you are to be corrupted Money is like seawater, the more you drink, the thirstier you get Recycled Work? o 10 hours of research for client A o Half hour update for client B o How much do you charge each client? 10 hours for client A 10.5 for B or .5 for B Double billing? o 4 hours on plane for client A o 3 hours on plane working for client B 7 hours for 4 hours of real time Ill leave no stone unturned o especially if I am paid by the stone I may be over-compensated o But I am not over-compensated enough! English equivalent of contingency fees is the conditional fee arrangement (another institution of representation)

Justifying the Lawyers Role: Client Autonomy Class 9

Institutions of representation Contingency Feeso Lester Brickman has been studying it book called Lawyer Barons Contingency fees distort the legal justice system ties in with Mayhews institutions of representation (that they are biased and distort) Financial incentives on lawyers to take cases and litigate o So high that there is an adverse impact on the justice system o Many victims of PI get easy access to lawyers, easy access to info about lawyers, and easy access to a remedy (some compensations) o Not available in UK o Imposes transaction costs in excess of 50% o Created the most powerful regulatory regime dwarfs fed and state agencies 15

Contingency Legal Aid Fund version of contingency fees in UK that has incentive Brickmans findings: o Why cant lawyers charge contingency fees in divorce cases? Why dont defendants? o Tort lawyers win on 90% of tort cases o No competition in contingency fees like a cartel o Breaches ethical rules/fiduciary duties o Expands tort liability to benefit of ALL lawyers Association of Trial Lawyers of America now replaced by the American Association for Justice o 7th largest PAC in the country o Spend lots of money on lobbying Cost of civil litigation to the economy is about 2% of GDP in US which is about 2X as much as in UK function of the institution of representation Thinking about justifications for what we do for our zealous/mutual/partisan representation John Pierre 13 year old boy w/ leukemia scenario o Will die w/in a year at most unless he can get a bone marrow transplant o Father had twins w/ mistress o 1:20,000 chance of finding a perfect match o Chance that sibling is suitable donor is much greater o Father trying to get court order trying to get children to be blood tested o 26 yr. old Kentucky man case where he was ordered by the court to donate his kidney to his ailing brother o Need to make factual, legal, and constitutional arguments to protect twins/mothers interest We want hard, tragic choices to be easier, but even if they are not, we will still represent her even if we dont agree, b/c she has this right Legalism- an attitude/way of thinking that says legal rules should determine what happens/what conduct takes place Legal rules determine morality Back to John Pierre o Can delay by putting off 30 day response to the end w/in the rules o Should lawyer use the law yes o Should lawyer use procedure yes o 100% solution is to go to another country and disappear for a year until John Pierre dies as long as she hasnt already been subpoenaed o Wife won b/c no legal grounds of necessity requiring the twins to be blood tested Danger of legalism dont make a distinction b/t a contractual dispute between two obnoxious companies and between life and death Have shown through this hypo: o Role differentiation o Do the best you can o Ended up with legal creativity o Deal w/ law and procedure How can we justify Jean Pierre dying we killed him 16

Class 10 Lawyer or Client: Whos in Charge?

Agencies are supposed to do what is in the interest of the client dont do anything adverse Fiduciary duty- goes further an added layer associated w/ something very important (going to lose house, constitutional rights, etc.) Steven Pepper Justifications (footnote): o One of lawyers main functions is to facilitate client autonomy o First Class Citizenship can be a good lawyer and good citizen at the same time; If conduct is lawful then it is morally justified Law is intended to be a public good (available to all) Which increases individual autonomy Autonomy depends upon access i.e. dependent upon lawyer lawyer is the means to first class citizenship lawyer is the means to autonomy equality of access (once lawyer retained) o Two major assumptions in this model Increasing client autonomy is good Increasing access to the law is good b/c it increases individual autonomy o Death Penalty cases In D.C. 3:4 people want to die as compared to 10% nationally If client doesnt want to appeal then should lawyers have to (if client is mentally competent)? There are different rules: CA not presenting mitigating evidence would be inadequate representation NJ insists on hearing mitigating evidence against defendants wishes Ms. Brown Domestic Violence Victim / Kobe Bryant Women Defense Attorney in Rape Case o Is it ok to ask for a female attorney? In the UK, the average male attorney salary is 78% higher than the average female attorney o Could be due to prejudice and discrimination Whos in charge of making these decisions? Hypos: o Jewish mother asks you to disinherit son b/c married outside the faith; several years later she discusses will and wonders if she should reinstate son; what do you do? Its none of the attorneys business what people want to do with their money Raises issue of how do you find the autonomy what does the person really want? o African American pushed down in supermarket by guard in supermarket and she pushed him away and he slipped and fell; she can plead guilty and get a warning or plead racial discrimination then she can get a criminal record what should you do? Present legal options and explain them out Could say that it is better to walk away b/c there is no risk and there is a lot of risk if she fights it 17

Need to leave choice up to her ultimately need to know her personal, individual approach Ms. Brown gets beaten by her husband in a community/culture that accepts that men beat their wives; should you refuse to see her again unless she agrees to seek an injunction banning her husband from the house? Idea of best interests

Enron o How do you find the autonomy of an organization? It is tricky b/c not a human being Man wants to commit suicide and wants to know where money goes to bank or to wife o It would go to wife o Do you tell him and ensure he kills himself or lie or delay the answer or call for help, etc. o Could give other options bankruptcy or the like o In real life, decided to kill himself but tried to kill wife first b/c he thought it would devastate her if he killed himself o Not in best interest to provide answer b/c we are providing the means to something that is not in his best interest (suicide) If we know something is not in clients best interest but its what they want, what do we do? o We are enhancing their autonomy but at what cost? o Do we have to be amoral technicians and nothing else? Should non-legal advice (moral, social, etc.) have an impact on the lawyer-client relationship? Steven Pepper Model o Access justification o Shouldnt be filtering our morals into the client leads to the oligarchy of lawyers Oligarchy of lawyers clients should respect and receive similar representation no matter the clients wishes from different lawyers Hypothetical 1: o You are in family law woman says husband is planning to divorce her no children woman says husband will do right by her financially so there is no need to draft a financial settlement what do you do as the lawyer? Husband Chuck met 18 year old bimbo at club o American Council of Matrimonial Lawyers - In family law, lawyers must be more than lawyers because the problems are more than just legal . . . need to counsel clients on the moral, economic, and non-legal factors Need to focus on clients best interest Hypo 2: o Chuck and bimbo situation again financial settlement issue brought up and this time she says she wants every penny do you tell her about: The emotional consequences of fighting so hard? Were we not patronizing her in the first scenario? How about the second? Hypo 3:

Class 11 The Best Interest of the Client

18

Custody dispute b/t mom and dad over 13 year old son youve been appointed to speak with the boy who says he wants to live with his dad mom is strict disciplinarian who wants him to work hard, go to school, do his homework, etc. dad is unemployed, not well educated, has substance abuse problems, etc. wants to go to dad b/c dad lets him hang out with friends and lets him be Do you take boys preference into account? Rules on conflict of interest says that independent professional judgment dont allow anything to impair your independent professional judgment payment very often someone besides your client is paying this shows that its your client that counts On the one hand you do the best you can to get the boy to the dad but in the back of your mind you hope the system works and sends him to the mom No harm in advocating for the boy because the situation is so 1 sided and you are going to lose o Job as lawyer may be to articulate (sitting down and saying boys wants) what the boy wants rather than advocate (pushing hard to bring in points that would help the boy express his desires in a favorable light) what he wants Model Rules of Diminished Capacity (ABA) children as young as 5 or 6 and certainly those of 10 or 12 are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody Attorneys should be the mouthpiece and agent for the client Cant do a half-baked job!!! Hypo 4: o Robert Deniro is accused of murder w/ a lot of circumstantial evidence against him media is convinced he is guilty death penalty state Alibi is that during the murder, he was in the bed of his best friends wife he doesnt want her involved in any way in the case whatsoever We are supposed to be amoral technicians and leave our personal morality out of it Instead of helping the autonomy of our clients, we are in danger of patronizing / subverting the interest of our client The model is that you need access to the law to achieve what you want Can we keep out our own personal perspectives or are the inevitably protruding advice can be: o Personal (do our personal views not shape our advice) o Reflective (tailor advice to clients moral convictions/the client) o Contextual (a cultural factor dealing w/ culture of legal practice is there a culture in the law firm in the legal environment in which the lawyer works that influences the kind of advice that is given) o Professional (job as a mutual partisan and morality has no rule in what lawyer does) Scenario 1: o Landlord wants you to evict client that has been writing anti-Semitic graffiti on the walls What if it was the landlord who wrote the graffiti to frame the tenant? Scenario 2: o

19

2 identical twins w/ same everything (culture, grades, college, DNA, lawyers, etc.) but 1 becomes a lawyer in the state department and the other for a large for profit government contractor memo needed on the definition of torture under international treaties because they deal with Iraq Should the memos be the same or should they reflect the aspirations and desires of the clients This scenario suggests you may tailor advice to reflect your client Memo says its not torture presented as strict legal analysis by an amoral technician entire document was inescapably moral morals underpinned entire analysis Point is about autonomy and if we can be independent in those situations o The amoral legal advice is a complete fiction o Danger of fiction is that it facilitates the tendency of clients to equate legality with permissibility Legalism o Legal rules alone determine Rights + duties What conduct should take place Morality o In other words, legal rules determine morality when we give clients access to the legal system, it is not actually a means to an end or a means to enhance their autonomy (as Pepper suggests), but rather it is an end in itself Movie Background (anatomy of a murder): o Murder defense of Lieutenant Manion who admits he shot and killed Bonnie Quill 1 hour after Bonnie Quill allegedly raped his wife Laura Manion o Associate asks: did you give the lieutenant the well-known answer? To which the lawyer responds did I give him the phony story, no o 4 ways to defend murder for lawyer: Accidental __________ Legally justified Killing excusable (says this is the only one that applies to him) o Is this 4 ways to defend murder speech telling the client the ways he can get away with it or is this the lawyer saying the grounds you are not guilty of murder o The Lecture- the way of raising the possibility that the client is engaging in unethical conduct rather than discussing the legal aspects of questionable conduct Ok for lawyer to discuss the legal aspects of anything but not ethical to advice/coach a client to commit a fraud or a crime o Manions case may be the case of committing a fraud on the court or perjury o Paradox when defendant found not guilty no crime It is entirely appropriate for a lawyer to present the options/ways of defense but it can flip over to presenting the means by which a client can do the means and get away with it Ask 2 things: 20

Class 12 Giving Legal Advice

o What was the purpose of the advice o How was the advice given Very fine line b/t giving legal advice to a client and coordinating obstruction of justice Dr. Jack Kervorkian helped around 130 people commit suicide o If he comes to you for legal advice, what do you tell him? The right to commit suicide is arguably guaranteed by the US Constitution 2 lower courts in MI agreed even though S.Ct. did not Lawyer should help clients make a good faith effort to determine what the law means Do you advise him on the prospects of being convicted Tried 5 times: acquitted 3 times, 1 mistrial, and after helping Thomas Youk die (and administering the device himself and going on 60 minutes) was found guilty Suicide is not a crime, but may be a common law defense in some US jurisdictions, but assisting suicide is a crime Dr. Mishka (Australian Dr. Death) planned to launch a death ship and kill in international waters If something is lawful and does help your client, must you offer it and must you use it? o Is it a good thing to give clients access to the law? o Is denying access to the law a bad thing? Shell corporation- a company w/ no or nominal operations and no or nominal assets if anyone is wrongfully harmed by product, there is no incentive to sue b/c claim is worthless If something is perfectly legal, does that make it ok? o Blackwater set up 30 or so shell companies to get millions of dollars in US govt. contracts Chuck and the Bimbo scenario: o Chuck being required to pay 20% of income for next 5 years to ex-wife Do we exploit legal rules for our clients to achieve objectives that are suspect or immoral? o Vietnam vet disabled and about to lose only source of income b/c he lives rent free with his sister and this is not allowed o Peppercorn Rent- a tiny rent payment amount Is it ok to use the law instrumentally? Yes o Do we make judgments about when? Is the motif irrelevant? Water pollution case: o Is it ok to tell the legal limits of ammonia in the water yes o Is it ok to tell that testing is rare yes o Is it ok to tell that a warning is given first yes o Is it ok to tell the client that you can go above the legal limit yes Water pollution case shows that a lawyer can lead a client who has come in for legal advice to do something he wouldnt have done w/o the advice (leading the client) client is under no legal pressure to follow the law as written Do you advice on breach of contract? o It is a cost-benefit analysis Is there a difference b/t a contract and a tort and breaking them? 2 questions being posed: 21

Arent we often making our own judgments on questions about the law? (on which laws you think should be available) o The law itself zealous advocacy w/in the limits of the law is the law sufficiently clear/sufficiently certain and do we really know what the law is? Legal Realism- the American school of thought where the law is not certain and is capable of being manipulated and can be used in ways it is not designed for American Model Penal Code talks about balancing- need to balance the harm of the act against the harm/evil you are trying to avoid Law is not morality following the law doesnt make you moral and disobeying the law doesnt make you immoral Bad autonomy doesnt become good b/c it is lawful or because you have a lawyer doing it for you What are the legal constraints on what we do? not many o Confidentiality- Deeply imbedded in the lawyers self-image and ideology; prevents the lawyer from doing something good (such as telling the truth) on the grounds that there will be a greater good 3 aspects to non-disclosure in the US: o Attorney-Client Privilege- it is perfectly possible to reveal privileged information privilege doesnt arrive unless the privileged information is confidential One element is that the communication must be confidential The fact that something is privileged says nothing about whether you should reveal them or not o Confidentialityo Work-Product Immunity- if the lawyer writes memos or prepares docs or does work and there is a product of that work, that work is immune from disclosure All 3 have a similar justification ethical duty (duty to the client, role of lawyer in the system, client wont speak fully and frankly unless he knows the info will be confidential) The key issues is when the duty of confidentiality should be broken Movie: A Time To Kill o A white lawyer (Jake) represented an African American and got him off o The African American was the brother of Carl Lee Hanny o Carls 10 year old daughter was just brutally raped and tortured and left for dead by 2 racist white men o Carl Lee turns up at lawyers office and has a conversation about doing something to the white men that raped his daughter and asking the lawyer if he does something will he help him out afterwards o Jake didnt call the sheriff, Carl Lee killed the two white men, and Jake agrees to defend Carl Lee o Did Jake have a professional responsibility to call the sheriff even though he didnt know what Carl Lee was going to do? It is always the lawyers discretion!!! lawyer can always speak or keep silent Wife said he told you what he was thinking but you didnt know what he was going to do 22

Class 13 Confidentiality Setting the Scene

Was the conversation b/t Jake and Carl Lee confidential or privileged? o Not a client at the time o Is it confidential? It is confidential even though the person is not a client b/c the person is a perspective client Confidentiality covers not only clients but also people that are discussing becoming clients o Is it privileged? Privilege only applies to communications Privilege means (practical effect) is that it cant be introduced as evidence rule of evidence Client has the privilege and can waive the privilege can also be waived if the client reveals it to a 3rd party Confidentiality can be trumped by other considerations (laws can trump the duties of confidentiality such as not withholding evidence) Video Clip: Ethics on Trial Garrow murdered 4 and raped 7 o Should the lawyers have looked for the bodies? Maybe? Would it change anything other than providing certainty? o What should Frank Armani have done (kept it confidential or not)? Yes he should have he has an ethical duty and this serves justice Keeps integrity of the system intact o Should he have plea bargained with the information? Prosecutor said it was reprehensible to plea bargain Best interest of client is the lowest possible punishment Allan Durshowitz if a lawyer can a lawyer must Clients will not speak freely if the lawyer will not keep information confidential Confidentiality can be justified and the key question is when to break it o For Barristers, it is an absolute rule you can never break it o For Solicitors, it is a discretionary rule gives the lawyers a choice o It is not about confidentiality, it is about the scenario to make the determination What were rules in play: o In England, Barristers cannot break confidentiality no matter what involvement so late down the trial o Solicitors can break confidentiality If you believe it is necessary to prevent a 3rd party from committing a crime or preventing serious bodily harm o If client changes story to Barrister in the middle of a trial, the tragic choice arises whether or not to break confidentiality American Rule on breach of confidentiality is that: o (Frank Armani rule was that) a lawyer may reveal such info as the lawyer reasonably believes necessary from preventing the client from committing a criminal act that he believes will result in imminent death or substantial bodily harm Armani had an ethical duty not to reveal it; if he had revealed it, he would not have prevented imminent death or substantial bodily harm b/c the victims were already dead 23

Class 14 Confidentiality Exceptions

Privilege is very strict with no exceptions o Only applies to communications by the lawyer and the client regarding the legal or advice the lawyer is providing o Rule of evidence that information cannot be given by lawyer regarding confidential communication o Just about giving evidence, not whether or not info should be disclosed o It has to be kept very narrow crucial info is withheld could be a bad thing The fact that something is privileged says nothing about whether you should disclose it or not Confidentiality is very wide/broad b/c it is based on the law of agency- agents (lawyers) should not do anything adverse to the interest of the principle (clients) A lot of maybe confidential exceptions exist Privilege crime-fraud exception- if client asks lawyer for help committing a crime, that is not privileged not really an exception, but rather it was never privileged in the first place o Privilege only relates to activities a lawyer should be giving i.e. proper representation o Can give evidence in court against client on this ground If someone says they buried the money they stole from a bank privileged If that person doesnt communicate it but you see them burying it, you dont have to disclose it but may have to give evidence against them not privileged Rules similar in US and UK o In UK, privilege is even wider may go beyond legal advice and touch on commercial advice an absolute protection for the justice system You may break confidentiality if you think it will prevent the client from doing an action that will lead to death or great bodily harm OLD RULE If the client told you he killed the children but eventually told you that they were in distant remote locations and possibly alive, what would you do? o Break confidentiality and locate the kids yourself or alert the authorities and recover the children more reason to break confidentiality b/c they may be alive o Keep confidentiality and do nothing o What he actually did was he anonymously informed the police broke confidentiality without being held in violation police found dead bodies and charged man w/ 3 murder counts instead of 1 o Plea bargain with information may have information which may be of interest to the state Model Rule 1.6(b) (old) o Lawyer may reveal information to extent lawyer reasonably believes necessary o To prevent client committing criminal act o That lawyer believes likely to result in imminent death or substantial bodily harm Can look at rule that criminal act that happened in the past may actually happen in the future Majority said lawyer prevented escalation of crime to murder McClure v. Thompson (2003) Dissent o Time for Mecca (lawyer) to take responsibility for choice o To breach clients confidence 24

o Whether or not right o Was abdication of professional responsibility o Deficient under 6th Amendment o Meccas concerns understandable and laudable o However, does not negate infirmity of McClures conviction Judge said dont break confidentiality until you find out the truth he didnt find out o Could have gotten it from the client by keep asking for clarity o If hallucinating/rambling client, find out for yourself Distinction b/t morally right and ethically right even though he did the right thing, he broke legal duties CAN breach confidentiality by preventing a criminal act that may result in serious bodily injury or death Robert Garrows escape from prison Civil Cases o Spalding v. Zimmerman 3 medical experts treating plaintiff did not discover life threatening aneurism of the aorta but defense council physician did discover this Lawyers for defense knew about Ps life threatening aneurism and knew he could drop dead unless it was treated $6k claim and aneurism would have added $250 to claim if it was caused by injury Could go to client and discuss information with him ask if you can disclose it to the other side If client says dont tell the other side, are you bound by the clients directions Ethically bound by directions Lawyer said nothing, kept confidentiality, case was settled for $6.5k and for nearly 2 years P did not know of condition but it was discovered when he went to join the army reserve suffered permanent and severe speech loss as a delay MN Supreme Court did not recognize any duty of candor or care to the opposing party, even when a life was at steak absolutist notion of confidentiality o Solicitors rule similar but courts accept breach of confidentiality where it prevents death Model Rule 1.6(b) (new) o Lawyer may reveal information to extent lawyer reasonably believes necessary o To prevent o Reasonably certain death o Or substantial bodily harm o May not must Its not a lawyer must reveal, it is that a lawyer may reveal lawyer has a choice Corporate Wrongdoing o Ford Pinto case Ford made design decision about gas tank and put it behind rare axel which made it dangerous for rear end collisions Cost/benefit analysis said cost of putting gas tank in safer place was $5-$11 per car and cost of lawsuits that would be brought by victims of injury and death was less by about 3 times 25

Caveat Emptor- let the buyer beware Ford found not guilty Whats wrong with trading life for cash? In US, we now do not have criminality the peg for breaking confidentiality as a result of the new rule Hierarchy of confidentiality o Should a lawyer keep confidentiality? yes o When should the lawyer break it and blow the whistle? depends on the situation Dalkon Shield device (contraceptive) o Illegal in US but not in foreign nations do you still help company export to Africa? Beaten Mrs. Brown wants to go to womans shelter and wants a divorce o 13 year old child would want dad to have custody o Turns out husband has been having an affair with another woman and she had an affair w/ man named Warren and now she has HIV o Could have gotten HIV from either husband or Warren o Nobody knows she has HIV what do you do as lawyer w/ this info? Not bound by rule to disclose and may not be reasonably certain death or serious bodily injury Rule doesnt cover crime anymore just reasonably certain death or serious bodily injury Model Rule 1.6 Cmt [6] o Lawyer who knows o Client accidentally discharged toxic waste o May reveal o If present + substantial risk o Life-threatening or debilitating disease o And disclosure necessary to o Eliminate threat o Or reduce number of victims In US, there is a mandatory duty to disclose child abuse and protection children and can do it in many states anonymously how do you know? NO MEANING UNLESS YOU GIVE THE RULES MEANING differs on individual perspectives What is truth, what is lying, is truth good and lying bad In principle, people say lying is bad and honesty is the best policy According to NY Times, in 2008 nearly of doctors proscribed placebos how can patient give informed consent when whole thing depends on a lie What is a lie by a lawyer and when if ever is it ethical to lie and when if ever is it justified in the clients interest virtuous lying o Famous Barrister Quote If I can convince a court when I dont believe the position Im arguing for, that is of course a professional pride Two contexts: Out of Court and In Court o For an English Barrister, the duty to the court is felt to be critical even when it comes up against a clients interest 26

Class 15 L(aw)y(er)ing and the Law

o Duty to client may conflict with professional interest/duty Testers- people that go undercover and try to figure out the truth by lying o Ex. Someone giving a false name to figure out something William Cody Neal house painter that murdered 3 women w/ an axe had relationships with all 3 kidnaped, raped, and killed them o A lawyer named Portler (a DA) said his name was Marc Palmer and was a public defender (lie 2) and then after 7.5 minutes was told that Neal wanted solitary confinement, a pack of cigs, and a lawyer present when he gave himself up o Is it wrong that DA lied? In that part of CO, the relationship b/t the DA and public defenders was not good Portler was disciplined, suspended for 3 months, had to do 20 hours of CLE in ethics, and had to pass the ethics exam S.Ct. of CO said that there is no exception to the rule of no lying and the justification for lying doesnt excuse the breach but does go to mitigation of the punishment Bargaining/Negotiation o Boone and Levin point out that negotiating deals is a central point of lawyers work o Most cases dont go to court and most cases settle o It has been suggested the effectiveness in negotiation is central to the business of lawyering and the willingness to lie is central to ones success in negotiation o Lying in bargaining is normal (saying something like my client is willing to fight all the way when he would really prefer to settle) ABA gets around problem by saying that under generally accepted notions of negotiations, generally accepted statements are not taken as statements of material fact o My client will not accept anything less than $1M when they said over $500k would be good is not a statement of material fact OK to lie in bargaining Lying in Court o The end doesnt justify the means o The Bonfire of the Vanities movie lying about womans knowledge of tape recorder in court would you do it? Scott Turow investigated bribes to judges in the 1980s and didnt tell them they were undercover FBI agents had to lie in open court to catch the judges o Brought fake tort suits just to be credible but needed a crooked judge to make them go o Operation Greylord netted 92 officials o Did the end justify the means in this case? can justify by saying that the system is so corrupt that you are not going to play by the rules o Shows that lies can be used to achieve good ends David Westerfield o Accused of abducting, raping, and murdering a 7 year old girl o We know he is factually guilty because he told us where the body is This does not necessarily mean that he is legally guilty o Used body as a plea bargaining tool Prosecution rejected offer and found body on their own o Defense attorneys used 2 strategies: 27

Despite forensic evidence against Westerfield, lawyers suggested b/c parents smoked marijuana, had sex parties, and so forth, they said it was more likely that one of the passer-throughs would kill the girl than Westerfield During 24 hour surveillance, there was forensic evidence that that was the time the body was disposed of even though they knew he did it

English position o Burden of proof is on the prosecution o Can be creative on defense w/o saying that the defendant committed the crime or didnt commit the crime o Jimmy Steward quote giving them a legal peg to hang their hat up where you cant convict unless its beyond a reasonable doubt o Not guilty verdict is not the same as an innocent verdict Russell uses the word instructions the lawyer becomes the client in some sense (we did this or didnt do this rather than he did this) client says he doesnt want to go to trial/get executed must follow clients instructions Client who mugged woman at 2am and woman said it happened at midnight (b/c she was confused after getting beaten) has alibi at 12 b/c he was playing cards do you present this defense? Yes Misrepresentation to the court is the most serious breach of ethics b/c it directly affects justice o In US, duty of candor to the court trumps the duty of confidentiality o In US, lying criminal defendants have the right to testify most jurisdictions call for adoption of narrative perspective ask client to tell the story w/o questioning him Baron & Budd Preparing your Deposition Memo o Remember: say saw the NAMES on BAGS o The best answer, recall seeing names o The more thought the more remembered o NO IDEA asbestos was dangerous o NEVER saw labels: WANRINGDANGER o Listen to question: did you wear mask? o The answer is NO! Can give legal advice but cannot coach clients and give them answers When asked about bank accounts, client (Bronston) wants to: o Avoid saying that he has a Swiss bank account o To do so, client said the corporation had an account but avoided saying whether or not he did Deliberately evasive- not answering questions held not to be perjury Responsibility of person asking questions to ask the next one Slippery Slope/Ethical Discretion Why would a lawyer (a subordinate) watch a senior partner lie and do nothing? o He couldnt believe what he was hearing Millgram experiment o 2/3 people would electrocute you if instructed to do so by a lab technician 28

Class 16 An Additional Model Ethical Discretion in Lawyering

o Person in another room would get shocked by different voltages if answered wrong o Tried to explain how Nazis took orders during WWII Slippery slope is the corruption of judgment Cognitive Dissonance- when our actions conflict with our beliefs, are beliefs change to fit the actions It is all about corruption of judgment and the makeup/DNA of a lawyer is independent judgment No adverse consequences laptop policy 1/3 broke this policy they agreed with Many justifications for breaking compliance with rule: o Not bound by it o Deference to client/boss Hypo: will written by testator and person left money to a man wills are highly regulated by law being asked whether will should be given affect to problem is that person leaving the will left all the money to the person that killed him should you give the money to the murderer? o Wills are massively regulated b/c the person that wrote it is not around to say what he intended o Creates bad incentive b/c beneficiaries may kill people to get paid o Can put conditions in a will (you get money as long as you do/dont) o 2:1 decided not to give money to the murder created principle that you should not be allowed to benefit from your own wrongdoing (Riggs and Palmer) If impatient judge asks you if your client is guilty or not and you know he is, the possible responses are: o Yes not ethically proper b/c not acting in best interest of client broke confidentiality o No not ethically proper b/c lying o Not sure may be ethical b/c not sure if he is legally guilty o I have no doubt my client is not guilty intended to mislead judge and is false no exception to confidentiality rules . . . but may be ethical answer through the Model Rules May be a lie but is the ethical thing to do Model Rules Preamble o [14] rules of reason o Interpret (the rules not just literally but also in terms of) . . . purposes of representation/law o [15] presuppose larger legal context o [16] do not exhaust moral + ethical considerations (that should inform a lawyer) o No worthwhile human activity can be completely defined by legal rules o MR: framework for ethical practice of law Legal rules alone do not determine what should take pace may choose legal rules in some scenarios but it is your choice Lifeguard who breaks beach zone rule to save life outside zone gets fired for doing so followed bigger rule of saving lives rather than smaller rule of not leaving zone Departing for the rules might still fall w/in the purpose of the rules according to the preamble of the Model Rules o Not condoning breaking the rules 29

In America, you can choose who you represent a purely personal matter o Can withdraw from representing someone if you find them repugnant o Can withdraw from representation if in fundamental disagreement Other scenarios where being asked to exercise a professional choice: o Use forensic evidence or not o Help suicidal bankrupt client or not o Made by you as an individual o Not a random/arbitrary thing English lawyer would say to disclose info to opposing council about dead client (who recently died) and in US you need to decide what is fair or not Lawyers Role o Fidelity to court as well as client o May NOT do everything legally permissible (to promote clients cause) o Limits on advocacy and partisanship (bias/one-sidedness) o Not from personal morality o But implicit in professional (lawyers professional undertakings) o For which we (lawyers) can be held accountable o So we must recognize professional obligations and o Comply with them o OWN sense of professional (not personal) propriety o Legal permissibility/enforceability NOT ENOUGH! (to justify helping a client)

Class 17
Exam Overview o 2:30 Saturday; 2 hours 2 parts 3 questions Question 1 first part 50% Question 1 part 2 is 2 questions 25% each o Graded on how you justify your answer How you organize construction of material Assigned readings and in-class discussion + Middle Temple trip Conclusion can be yes, no, or I dont know but need to justify! Indicate where youre getting info from Final Review Problems faced as health care lawyer: o Ethical dilemma once or more per week (only 2% will never have an ethical dilemma) 3 questions (hypos): o If you had a friend and the friend said they were having some trouble involving the law and they will be going to litigation, would you advise your friend to get legal help? Go to a lawyer lawyer knows ins and outs and intricacies of the law and is a logical, neutral 3rd party (a man that represents himself has a fool for a client) o MLK is trying to organize civil rights marches and deal w/ racial segregation and in Birmingham, AL, a court orders an injunction prohibiting the march MLK defied injunction and ended up in prison for being in contempt of court 30

Appealed injunction and S.Ct. said injunction should not have been ordered b/c he had a right to march but it was wrong to disobey injunction w/o first appealing was the Supreme Court right? MLK had constitutional legal right to march and the march was legal but were the needs of system/procedural constraints a trumping factor? (did procedures trump the law) Double jeopardy would overwhelm the system so we sacrifice the few miscarriages of justice to protect the system same here w/ MLK o Brilliant community officer in inner-city who has 4.5 year old child who may have rare genetic condition called fragile X syndrome which is similar to autism if not treated, it will lead to severe behavioral problems do you tell her? Yes no effort on our part to tell her something she should know that would save her hardship down the line Uncertainty situation dont know if child has disease, dont know what mom will do, dont know what will happen in the end Risk is that she will give up community job to look after her child Why is professional responsibility mandatory in USA? o ABA rule that requires it introduced b/c of Watergate and as John Dean said, an awful lot of lawyers involved, how could so many get involved in something like this Why do lawyers ethics matter? o It is about you in your practice for the rest of your life How to approach ethical questions? o Except in most blatant circumstances, professional rules provide little guidance on what we must do o Rules offer no definitive guidance on how to resolve dilemma and the tragic choice What do the rules do? o Acknowledge that they do not answer questions but provide a framework for the ethical practice of law Ethical constraints exist that prevent lawyers from using conduct that is prejudicial to the administration of justice How should we answer questions of tragic choices if there is no right or wrong answer? o Depends on the context answers depend on context Best way to understand ethical rules is to understand underlying principles that anchor them In working through scenarios, we discovered that there is a conflict b/t our various duties and responsibilities as lawyers o Virtually all difficult ethical problems arise from a conflict w/ responsibility to clients, legal system, and our own interests in remaining upright, respectful people while earning a satisfactory living from the law o A lot of conflicts are present here that leave us with professional discretion Why is lying to the court (in Bonfire of the Vanities) wrong but lying about whether your client is innocent or guilty is right? 31

o If think these two scenarios are right you are applying a professional conscience What is it about lawyers game that is dangerous and to who is it dangerous? o Most dangerous to society as a whole b/c it doesnt depend on if clients are good or not (helping bad clients do bad things is potentially dangerous to us) If we can we must o Lawyers game- to do your job, you have to be hardworking, honest, and do all you can for the interest of the client justification is the adversarial system People dont like being forced to play when they have other issues that they could pursue As a lawyer, this game is a trap or potential trap b/c we end up feeling like were doing what a lawyer should do and feel good when we have a good client b/c we feel legally good o Can use the law instrumentally for social good and change But can fall into the trap of legalism- using the law for any purpose whatsoever o Whats the danger? We cross a line and we didnt even know we crossed it Why is moral deference such a danger? o Can lead us to moral passivity, moral silence, and moral deference o Easily accept it as justified, as it is part of being a good lawyer, w/o giving consideration to how it affects us as a good person The importance of the phrase professional conscience o Model Rules preamble shows this o Clients come and go but conscience does not you have to live w/ it for the rest of your life Mastery of lawyering skills is not an end in itself but a means towards a legal practice that can reflect your goals or wishes To survive in the law: o Need both the means (technical skills/knowledge/intelligence/hard work/etc.) and you need the ends (a practice that reflects your ideals and your personal choices/goals) o Carl Lou Ellen: Ideals w/o technique are a mess, but technique w/o the ideals is a menace Final thoughts o Lawyers have real power o Henry Friendly (American judge): in our complex society, the lawyers opinion can be an instrument for inflicting pecuniary loss more potent than the chisel and the crowbar o Lawyers are the means to achieving ends wield power to achieve ends The fundamental question being asked is: how are you going to exercise your power the answer is you decide b/c only you can answer that question (not instilling ethics into you, but rather instilling you into ethics) Ethics (a definition by Lord Moulton)- obedience to the unenforceable

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