Legal Ethics (Spring 2014)
Law 550-007
Wednesday 8-9:50pm
Professor Leon Fresco
Phone: (202)224-5606
Email: fresco@american.edu
Office hours: Available Upon Request
Course Overview:
This course is an examination of the ethical obligations of the lawyer,
including a detailed analysis of the Model Code of Professional
Responsibility and the Model Rules of Professional Conduct. This is a
problem-based course. The textbook includes many problems that we will
discuss in class. Most of the problems put you in the shoes of a lawyer who
has to deal with a situation involving legal ethics issues and legal, practical
and strategic issues. Most of the problems are more complex than on-thespot classroom hypotheticals; they require analysis before the class in which
the problem will be discussed.
Required texts:
Lisa Lerman and Philip Schrag, Ethical Problems in the Practice of Law
(Aspen Publ. 3d ed. 2013) [hereinafter referred to as “Casebook”]
American Bar Association, Model Rules of Professional Conduct (2012 edition)
[referred to as “the supplement”].
Please note: It is essential that you use the editions of the Casebook and
Model Rules identified above, as there have been significant rules changes
that are not reflected in prior editions of either.
Readings will be supplemented by occasional portal postings, as noted.
Please bring both the text and the supplement to every class. You will need
them both.
Class participation: Class attendance and participation. Active class contribution is important to
success in this seminar. Students will be expected to contribute weekly to class
discussion and must be prepared to discuss assigned reading material for every
class.
I will be randomly calling students and then asking other students to weigh in if
they have questions or comments. You should be prepared to be called on during
every class unless you tell me before class that you could not read the materials.
Students are expected to attend class regularly and punctually to receive credit.
Students must inform the instructor if they cannot attend class. If you are unable to
be prepared for class, please let me know. You may be unprepared for 1 class
without penalty. If you are unprepared for more than 1 class, each subsequent class
you are not prepared for will result in a deduction from your participation grade in
the amount of 5 percent of your total grade. The same rule goes for class absences
that are not excused.
Getting to know you:
I will distribute a seating chart on the first day of class that is after
add/drop. Please sign the chart in the place where you intend to sit
all semester.
Exam:
There will be an in-class, open book exam.
Grades:
Your grade in this class will have two components:
(1) Your class participation, including general participation, and
evidence of having read the material when you are called upon
during class.
(2) the final exam (80%). This course will have an open book, open notes,
in-class (proctored), two-hour examination on _______________________. You will not have access to the internet
or files from your computer while the exam is being administered. This
means that if you want to consult your notes during the exam, you must
bring a hard copy of them.
2
Schedule of Assignments
Date
Topics, problems and cases to be discussed in class
1
Jan 8
Introduction to the course
Institutions that regulate lawyers
State ethics codes
1-1 The New Country*
Admission to practice
The character and fitness inquiry
1-2 Weed*
In re Mustafa“Missing moot court money
Professional discipline
2-1 “ I’m Not Driving”
2-2 Exculpatory Evidence*
Professional discipline, cont.
2-3 The Little Hearing*
Kelly v. Hunton & Williams “The whistleblowing
associate”
Civil liability of lawyers
Criminal liability of lawyers
Client protection funds
The basic principle of confidentiality
3-1 & 3-2 Your Dinner with Anna, Scenes 1 & 2*
Exceptions to the duty to protect confidences
Revelation of past criminal conduct
3-3 The Missing Persons, Scene 1*
Confidentiality exceptions, continued
3-4 & 3-5 The Missing Persons, Scenes 2 & 3*
People v. Belge
The risk of future injury or death
Spaulding v. Zimmerman “The undisclosed aneurysm”
Confidentiality exceptions, continued
Client frauds and crimes that cause financial harm
3-8 The Dying Mother *
3-9 Reese’s Leases*
Other exceptions to the duty to protect confidences
2
Jan. 15
3
Jan. 22
4
Jan. 29
Confidentiality and attorney-client privilege, compared
The elements of attorney-client privilege
Client identity
Waiver
The crime-fraud exception
The death of the client
4-3 A Secret Confession*
Swidler & Berlin v. United States “Why did this man die?”
The work product doctrine
The privilege for corporations
Upjohn Co. v. United States “Investigating corruption”
4-4 Worldwide Bribery*
3
Pages of text assigned
and relevant rules
Text: pp. xxxiii –xxxvii
and 1-76;
Supp: Preamble and note
on Scope of Model
Rules;
Model Rule 8.1
79-155
Model Rules 5.1-5.3, 8.3
159-198 (top)
Model Rule 1.6
Model Code DR 4-101
201-247, 249-252, 255277
Model Rules 1.0(f),
1.2(d), 1.6(b), 1.16 (a) &
(b), 3.3, 4.1, 8.4(c),
5
Feb. 5
6
Feb. 12
7
Feb. 19
Formation of the lawyer-client relationship
Togstad v. Vesely, Otto, Miller & Keefe “You have no
case.”
Lawyers’ responsibilities as agents
Lawyers’ duties of competence, honesty, communication and
diligence
5-1 The Washing Machine*
Lawyers’ duties of competence, etc., continued
Competence in criminal cases
Strickland v. Washington “Capital case, not enough
mitigating evidence”
Candor and communication
5-2 Lying to Clients
Candor in counseling
5-3 Torture*
Who calls the shots?
The competent adult client
Jones v. Barnes “Who decides what to argue on appeal?”
Clients who may have mental disabilities
5-5 Vinyl Windows*
5-6 Tightening the Knot
Terminating a lawyer-client relationship
An introduction to conflicts of interest
General principles in evaluating concurrent conflicts
6-1 The Injured Passengers, Scene 1*
Conflicts between current clients in civil litigation
Suing a current client
6-2 I Thought You Were My Lawyer!*
Conflicts between current clients in civil litigation, continued
Cross-examining a current client
Representation of co-plaintiffs or co-defendants in civil
litigation
6-3 The Injured Passengers, Scene 2*
Positional conflicts: Taking inconsistent positions in litigation
Conflicts involving prospective clients
6-6 The Secret Affair*
Representing both parties to a transaction
Representing organizations
7-2 My Client’s Subsidiary*
Representing criminal co-defendants
7-3 and 7-4 Police Brutality, Scenes 1 and 2*
4
279-334
Model Rules 1.0, 1.1, 1.2
1.3, 1.4, 1.16(b), 2.1,
8.4(c)
334-348, 354-366, 370407
Model Rules 1.2, 1.4,
1.7, 1.10, 1.14, 1.16
407-413, 414-416, 418450 (top)
Model Rule 1.7, 1.13,
1.18
8
Feb. 26
9
Mar. 5
Representing family members
Florida Bar Opinion 95-4
7-6 Representing the McCarthys*
Representing insurance companies and insured persons
Representing plaintiffs in class actions
Representing parties to aggregate settlements of individual cases
Nature of conflicts between present and former clients
Duties to former clients
Distinguishing present and former clients
Evaluating successive conflicts
Addressing former client conflicts in practice
8-2 The District Attorney*
Representing the competitor of a former client
Conflicts between the interests of a present client and a client
who was represented by a lawyer’s former firm
8-3 A Dysfunctional Family Business*
Imputation of former client conflicts to affiliated lawyers
8-4 The Firm’s New Partner*
Legal fees
Lawyer-client fee contracts
9-1 An Unreasonable Fee?
9-2 Rising Prices
Regulation of hourly billing and billing for expenses
Scenes from a Law Firm
5
450-502
Model Rules 1.7, 1.8(f)
and (g), 1.9
502-529, 538-566
Model Rules 1.4, 1.5,
1.7, 1.9, 1.10, 7.1, 8.4
10
Mar. 19
11
Mar. 26
12
Apr. 2
13
Apr. 9
Legal fees, continued
Contingent fees
Forbidden and restricted fee and expense arrangements
Fee disputes
Dividing fees with other firms or with nonlawyers
Payment of fees by a third party
Lawyer as custodian of client property and documents
Conflicts with lawyers’ personal or business interests
Successive conflicts of present and former government lawyers
Conflicts involving judges, arbitrators, and mediators
10-2 A Trip to Monte Carlo
10-3 The Judge’s Former Professor
Being a good person in an adversary system
Investigation before filing a complaint
11-1 Your Visit From Paula Jones*
Truth and falsity in litigation
Nix v. Whiteside “He said he saw something metallic”
11-2 Flight from Sudan, Scene 1*
Truth and falsity in litigation, continued
11-3 Flight from Sudan, Scene 2*
11-4 The Drug Test*
11-5 The Body Double
566-615, 620-642
Model Rules 1.4, 1.5,
1.7, 1.8(a), (c), (d), (e),
(f) (h), & (i),1.10, 1.15,
1.16(d), 5.2, 5.4, 7.1,
8.3, 8.4
Model Rules 1.9-1.12
ABA Model Code of
Judicial Conduct (esp.
canons 2 and 3) (online)
643-692
Model Rules 1.2, 1.16,
3.1, 3.3, 3.4, 3.8, 4.1,
7.1, 8.4(c)
11-6 Refreshing Recollection
Concealment of physical evidence and documents
11-7 Child Pornography*
Concealment of documents and evidence in civil cases, cont.
11-8 The Damaging Documents*
The duty to disclose adverse legal authority
Disclosures in ex parte proceedings
Improper influences on judges and juries
Lawyers’ duties in non-adjudicative proceeding
682-727
Communications with lawyers and third parties
12-1 Emergency Food Stamps*
Apple Corps, Ltd. V. International Collectors Society
In re Gatti
Duties of prosecutors
12-4 The Prosecutor’s Masquerade*
Conduct prejudicial to the administration of justice
Are lawyers really too zealous?
The unmet need for legal services
Sources of free legal services for those who cannot afford legal
fees
13-2 Restrictions on Legal Services
13-3 Mandatory Pro Bono Service
13-5 Service to the Poor and the Middle Clas
729-751, 758-817, 824848
Model Rules 3.8, 4.14.4, 6.1, 6.2, 8.4
6
Model Rules 3.3-3.9,
4.1, 4.4, 8.4(c)
14
Apr. 16
Origins and development of the U.S. legal profession
A short history of American legal education
Types of legal practice
Problem 14-1 The Reforming Partner
How to find a private employer with high ethical standards and
humane working conditions
Diversity and discrimination
15-1 The Job Interview
Advertising and solicitation
Bates v. State Bar of California “Can Lawyers Behave Like
Car Salesmen?”
15-2 Do You Need a Lawyer?
Geographic and interdisciplinary expansion of law practice
The effects of economic recession
Future structural changes in the legal profession
7
851-948; Model Rules
5.4, 5.5, 7.1-7.5