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EDITORIAL ADVISORS
Rachel E. Barkow
Segal Family Professor of Regulatory Law and Policy
Faculty Director, Center on the Administration of Criminal Law
New York University School of Law
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law
Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago
Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School
James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School
Tracey L. Meares
Walton Hale Hamilton Professor of Law
Director, The Justice Collaboratory
Yale Law School
Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School
Aspen Publishing
Attn: Order Department
PO Box 990
Frederick, MD 21705
1234567890
ISBN 978-1-5438-0578-9
The Aspen Casebook Series (famously known among law faculty and students as
the “red and black” casebooks) encompasses hundreds of highly regarded
textbooks in more than eighty disciplines, from large enrollment courses, such as
Torts and Contracts to emerging electives such as Sustainability and the Law of
Policing. Study aids such as the Examples & Explanations and the Emanuel Law
Outlines series, both highly popular collections, help law students master complex
subject matter.
Summary of Contents
Contents
Preface
Acknowledgments
Citations and Other Stylistic Practices
Contents
Preface
Acknowledgments
Citations and Other Stylistic Practices
xii
xiii
xiv
xv
xvii
xviii
Preface
Acknowledgments
SOURCES OF LAW
xxiv
EC Ethical Consideration
DR Disciplinary Rule
Rest. §XX Restatement (Third) of the Law Governing Lawyers
(2000)
CJC Rule XX ABA Model Code of Judicial Conduct (2010)
cmt. Comment (to Model Rules, Restatement, or CJC
section)
REFERENCE WORKS
INTRODUCTION
“Every thing is what it is, and not another thing.”
— Isaiah Berlin, “Two Concepts of Liberty,” quoting Joseph Butler
This may be the course in law school in which there is the most
variation in subject matter and emphasis. Torts is torts, evidence is
evidence, but students are often unsure of the scope of a course in
professional responsibility. This identity crisis is revealed in the
variety of course titles used by schools: professional responsibility,
the legal profession, lawyers and clients, legal ethics. There seem to
be at least two distinct subjects wrapped up together under the label
of professional responsibility, one having to do with law, the other
having to do with standards of right and wrong that are independent
of the law. The American Bar Association (ABA) insists that all
accredited law schools require a course in the “history, goals,
structure, duties, values, and responsibilities of the legal profession
and its members.” ABA Standards for Approval of Law Schools,
Standard 302(b). This language is pretty broad, and a wide variety
of courses can be offered that satisfy the ABA’s requirement, as long
as the course includes some instruction about the ABA Model Rules
of Professional Conduct. Owing to the flexibility of the ABA’s
standard, and the fact that law professors have many different
approaches to the study of the legal profession, you could
conceivably study the rules of professional conduct or the law of
malpractice and litigation sanctions, or you could take an
interdisciplinary approach borrowing from literature, films,
2
moral philosophy, sociology, or theology, in a course called
professional responsibility.
Throughout this book, I will talk about both professional
responsibility and legal ethics. The first term is somewhat easier to
define. “Professional responsibility” refers to what may be called the
law of lawyering or the regulation of lawyers. As a practicing lawyer,
you will be subject to legal regulations that are promulgated by
many different government bodies, including state bar associations,
courts before which you appear, legislatures, and administrative
agencies. The highest court in any state has the inherent power to
regulate the conduct of lawyers practicing in that state; in practice,
the court generally delegates considerable power to a state bar
association, which establishes rules of conduct for lawyers and
investigates and punishes violations of those rules. In most states,
these disciplinary rules are patterned after rules drafted by
committees of the ABA. You may be subjected to professional
discipline (reprimand, suspension, disbarment, and other
punishments) for violating these rules. There are plenty of other bad
things that can happen to you, though. You may be sued by a client
for malpractice, held liable for damages to a third party, disqualified
by a court from representing a client, forced to return earned
attorneys’ fees, held constitutionally ineffective in a criminal defense
case, or, in rare cases, even criminally prosecuted.
In each of these cases, the result is driven primarily by generally
applicable law — that is, rules of procedure, tort principles, or
criminal statutes that apply without regard to the state bar
disciplinary rules. Sometimes the generally applicable law makes
reference to the disciplinary rules, as when failure to comply with
the tort-law duty of reasonable care may be proven by the lawyer’s
failure to comply with a bar association rule. In other cases, the
court can either ignore or modify the applicable disciplinary rule. For
example, a court may hold a lawyer liable for aiding and abetting her
client’s fraud on the grounds that the lawyer should have disclosed a
particular fact in a transaction, regardless of whether the lawyer had
a professional obligation to keep the fact secret. Remember that
fundamentally, the bar disciplinary rules are really a matter of
internal governance of the bar association; they are not binding on
courts outside of disciplinary proceedings.
The law is not as much of a mess as you may think after reading
the last paragraph. As a practical matter, courts try not to reach
results that are wildly at odds with the organized bar’s disciplinary
rules. They may be influenced by the bar’s statements about the
obligations of lawyers and may defer to the organized bar as a
matter of respect or comity. However, it is a major theme of this
book that you must not confine your thinking about the law of
professional responsibility to the Model Rules. As we will see again
and again, you cannot fully understand your legal obligations as a
lawyer without knowing something about tort, contract, agency,
procedure, and criminal law. If you are working in a highly
specialized area like securities law or financial-institution regulation,
you have to know a great deal about the
3
underlying substantive law, too, because it may affect your duties in
ways that the disciplinary rules simply do not take into account.
Where does this leave legal ethics? There are basically two ways
to approach legal ethics. One is to look at the cases and rules that
compose the law governing lawyers to see what values, policies, and
ideals are embodied in the law. A rule that requires lawyers to keep
secrets, where disclosing the information would prevent personal
injuries or avert a financial fraud, expresses a strong bias in favor of
loyalty to clients and away from some kind of generalized duty on
the part of lawyers to do justice or look out for the greater social
good. (Of course, one can always respond that justice and social
good are more likely to result in the long run if lawyers are primarily
concerned with representing their clients’ best interests.) You may
find competing policies, however, such as the values underlying the
rules against presenting perjury at trial. It is fascinating to uncover
these policies and see how they affect the outcomes of cases.
Getting clear on these underlying values also helps you to predict
results where the law is unclear and to become more comfortable
with the inevitable “gray areas” in the law in which clear answers are
in short supply. In a sense, then, legal ethics is just a name for a
system of policy arguments that justify official decisions applying the
law of lawyering. To the extent this book addresses legal ethics, it is
primarily in this sense.
The second perspective one can take on legal ethics is to stand
outside the law altogether and ask whether it is right or wrong to
take some action. Suppose the lawyer knows a secret about her
client, and knows that several people will be in jeopardy of death or
personal injury if the secret is not revealed. Should she keep the
secret? Under certain conditions, she would have a legal obligation
not to reveal the information, but that obligation is not necessarily
conclusive of her moral duty. She may have to be a conscientious
objector and put aside her fidelity to the law, in favor of a greater
moral obligation. How is she to determine the nature of that
obligation? That is the subject matter of the academic discipline of
ethics, usually studied as a branch of philosophy, but which may be
encountered in history, literature, political science, theology,
sociology, or other fields of inquiry. In the philosophical tradition,
ethics is the study of concepts such as goodness, right action, duty,
and what ends we ought to choose and pursue as rational beings. It
is quite a complex and specialized subject, and you probably will not
go into much detail in a law school course. Still, you might encounter
concepts borrowed from philosophical ethics, such as values, virtues,
duties, consequences, goods, and principles. Alternatively, you might
approach the same issues using different terminology, or your
instructor might attempt to strip away the jargon altogether and
simply get you to think about ethical questions, perhaps by reading
novels or watching films. You should pay close attention to the
structure of your course, and if your instructor favors
interdisciplinary approaches, plan your preparation and study
accordingly.
4
A careful, rigorous exploration of legal ethics in this sense is beyond
the scope of this book.
I strongly object to the use of the term “legal ethics” to refer to
lawyers’ obligations under the state bar disciplinary rules, or the law
governing lawyers in general. For one thing, using the term in that
way requires invention of an awkward new term, such as “real
ethics” to describe what nonlawyers would simply call ethics.1
Furthermore, some lawyers might be tempted to regard rules of
“ethics” as merely aspirational or theoretical, when in fact the rules
of professional conduct of the states are law, and unpleasant legal
consequences can attach to their violation. On a related note,
because the rules of professional conduct are law, they have
intricacies and subtleties of which even morally reflective people may
not be aware. Complying with the law of lawyering is not just a
matter of “being good,” as understood in commonsense moral terms.
Most important, referring to lawyers’ legal obligations as a matter of
ethics suggests that being a good person is primarily a matter of
following legal rules. But one can be a complete sleazeball from the
standpoint of morality and never violate a single rule in the law
governing lawyers. Because there is much more to the moral life
than complying with the law, I would not want to contribute to this
kind of confusion. In a basically decent society, there will be
substantial overlap between legal and moral requirements, but it is
important to draw an analytical distinction between the two. As we
will see, there are several areas in which the organized bar’s
disciplinary rules may seem to be at odds with ordinary moral
standards.
10
Where the bounds of law are uncertain, the action of a lawyer may depend on
whether he is serving as advocate or adviser. . . . In asserting a position on
behalf of his client, an advocate for the most part deals with past conduct and
must take the facts as he finds them. By contrast, a lawyer serving as adviser
primarily assists his client in determining the course of future conduct and
relationships. While serving as advocate, a lawyer should resolve in favor of his
client doubts as to the bounds of the law. In serving a client as adviser, a
lawyer in appropriate circumstances should give his professional opinion as to
what the ultimate decisions of the courts would likely be as to the applicable
law.
You get the picture. Obviously, something like EC 7-3 could never be
turned into a “black letter” rule and enforced through legal
processes.
The only legally enforceable rules in the Model Code are the
disciplinary rules, or “DRs,” which prohibit specifically described
conduct. On the same theme of advocacy within the bounds of the
law, here is a rule on disclosing client fraud:
A lawyer who receives information clearly establishing that [h]is client has, in
the course of the representation, perpetrated a fraud upon a person or tribunal
shall promptly call upon his client to rectify the same, and if his client refuses
or is unable to do so, he shall reveal the fraud to the affected person or
tribunal, except when the information is protected as a privileged
communication.