Part IA.

Chapter 1: The Role of the Lawyer and the Legal Profession Section A: Introduction to the Lawyers Role as Professional I. Does the lawyers role permit, require, or justify behavior that would be considered unethical for non-lawyers? The example of Spaulding v. Zimmerman A. The lawyers conduct in Spaulding v. Zimmerman 1. What did Davids (the plaintiffs) lawyer do wrong? a. The rule then and today: The duty of competence required him to obtain defense evidence prior to settling. Dr. Hannahs report would have been available to him through pre-trial discovery. b. Why did the plaintiffs lawyer do what he did? Should that affect how we evaluate his conduct? c. Did Davids lawyer serve him well? 2. What did the defendants lawyers do wrong? a. Why didnt they tell David? b. Is their failure to tell David legally justifiable? i. The rule today: Model Rule 1.6 permits a lawyer to disclose confidential information to an adversary in litigation only when 1. Required by law (e.g., if Davids lawyer had requested it through pre-trial discovery) 2. When client consents 3. When disclosure of the information advances the clients interest, or 4. When the lawyer reasonably believes disclosure is necessary to prevent reasonably certain death or substantial bodily harm. 5. Would Model Rule 1.6 allow defense lawyers to reveal the information?

ii. The rule in Minnesota then: would not have required defense to disclose Dr. Hannahs report and, indeed, would have prohibited disclosure unless clients consented. c. Should the defense attorneys have consulted with their clients before deciding whether to tell David? d. Did the defense attorneys serve their clients well by not disclosing? e. Who was the client of the defense attorneys? 3. What would you do? a. Does either MR 1.6 or, in the case of Spaulding, Minnesotas rule governing a lawyers duty to guard the confidentiality of information definitively answer the question for you of what the defense lawyers should do? b. Is Pembertons advice (to do the right thing) helpful? 4. The Minnesota Supreme Courts holding and reasoning a. What did the court hold? What facts are crucial to the holding? b. Does the court hold that a lawyer always must disclose confidential information to an adversary when necessary to save the adversarys life? If not, what facts must exist to create a duty to disclose? Did the court determine that the lawyers did something wrong? Why did the court set aside the settlement?

c.

d. Is its reasoning persuasive to you? Why or why not? II. Evaluating the Ethics of Role Differentiation A. What is Wasserstroms description of the conventional wisdom of the proper role for lawyers? 1. What is an amoral technician? B. Is this an accurate description? What kinds of lawyers likely adopt it, and what kinds of lawyers might be more likely to view their role differently than he does? C. Explanation: Why, according to Wasserstrom, do lawyers embrace role differentiation? Does the simplified moral universe that role differentiation offers actually make lawyers comfortable?

D. Justification: What is Wasserstroms normative argument about the ethics of role differentiation for lawyers? 1. When is some amount of role differentiation ethically justified? 2. What is the significance of the institution in which lawyers operate to the ethical justification for role differentiation? 3. What are the problems with role differentiation? Under what circumstances is it not ethically justified? 4. What are the social costs to lawyers and to others of role differentiation of lawyers?