PROFESSIONAL RESPONSIBILITY
Primarily, the law governing lawyers in their professional roles
 ordinary laws applicable to lawyers in specific disputes, such as
 contract law, including the law of fiduciary relationships
 laws governing judicial procedures
 criminal law
 laws governing business activities (antitrust, consumer protection,
etc.)
Rules and regulations to be applied in the professional disciplinary
process
 other principles guiding professional conduct
Duties reflected in the Rules
 At least four constituencies, to which potentially conflicting duties are owed
The public (including prospective clients)
License to practice, limited monopoly on provision of certain services
Public interest: access to competent services at reasonable cost?
Issues: unauthorized practice, admission, structure, discipline
 The courts before which lawyers practice
 lawyer as “officer of the court”
 Issues: duty to serve on call from a court, rules governing conduct in
judicial proceedings
 Specific clients (heart of the course, the attorney-client relationship)
 Issues: nature (fiduciary), establishment and termination; fees;
confidentiality, conflicts of interest; malpractice
 other lawyers: rules of competition and etiquette
 Issues: advertising, solicitation of business, conduct toward adversaries
Who makes and/or enforces the rules?
 legislatures
 courts deciding specific cases
 courts as primary regulators of lawyers
 we will study how conflicts between these
sources are resolved
 bar associations (national, state, local)
 formulate proposed rules of conduct (esp ABA)
 assist in the disciplinary process
Format of the course
 3 hour exam, closed book except for Rules Pamphlet, all
essay and short-answer (unless otherwise stated, the
applicable rules will be the current version (2009)
 Class discussion focusing on problems in casebook, in light
of readings and rules
 I’ll call on people, dividing the seating chart into groups of
4 or 5 each and allocating each assignment (after the first
couple of classes) to one of the groups to be “up for”
Attendance
 Maximum number of absences, regardless of reason: 9. If
you are absent 10 times, you are subject to dismissal from the
course
 Unexcused absence when your group is up or continues to
be up (some assignments will spill over into the next class
period): 2 points deducted from final exam grade
Problem p. 1, and Sprung p. 2
What is the source of the difficulty in each situation?
carelessness of the opposing lawyer or his staff?
ignorance or carelessness on the part of the trial judge?
rigid, formalistic rules of law (here procedural) that are
"traps for the unwary"?
Problem and Sprung c’t’d
Why should the "innocent" party's desire to take advantage of
these mistakes present an ethical issue for that party's lawyer?
 Does
it represent a disregard of "professionalism"? What is that?
Terrell & Wildman, p. 32 (not assigned) identify 6 principles,
including
“a respect for the system and rule of law”
“a respect for other lawyers and their work”
Do these help?
Problem and Sprung c’t’d
Should a lawyer protect her "brother lawyer" against
malpractice liability for his carelessness, at the expense of
his own client?
 Should the lawyer protect the judge or the system from
error? From an erroneous judgment?

 Are there specific ethical obligations to the client that
militate against correction?
a. Model Rule 1.2 on who decides as between lawyer
and client
b. Model Rule 1.6 on the obligation of confidentiality
Formal Professional Rules
History of development of professional rules (Croft, p. 8 )
 Private treatises and local practice (19th C.)
 ABA formulations
 Canons of Professional Ethics (1908 with amendments)
 Model Code of Professional Responsibility (1969)
 Canons
 Ethical Considerations
 Disciplinary Rules
 Model Rules of Profession Conduct (1983, with amendments)
 Rules and commentary
What does Croft see as a problem with the way the rules have evolved?
Criticism of the Lawyer’s “Traditional Role”
Wasserstrom, p. 12
 “role-differentiated behavior” of lawyers, withholding moral judgment on
client’s lawful goals – are you persuaded by his examples?
 immoral client goals: disinheriting child because of opinions, taking
advantage of tax “loopholes”, selling harmful products
 immoral lawyer conduct in pursuit of lawful client goals: crossexamining truthful witness, requesting psychiatric examination of rape
victim
 what about the distinction between doctor treating bad person and
lawyer representing him?
 less problematic in criminal cases than in civil?
 unequal relationship between lawyer and client, lawyer is likely to be
dominant
Simon, n. 2 p. 19: how does his critique differ from Wasserstrom’s?