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Students:
Please purchase AN INTRODUCTION TO CONTRACTS: THE LAW OF TRANSACTIONS which
consists of two booklets, the Coursebook and the Handout to the Coursebook for sale
in the bookstore. Register for this Course on TWEN. Complete your first assignment for
class, below.
NOTE: Unit 1 is taken from the Coursebook and beginning on Page 8 you will find the
remaining materials from the Handbook you will need to complete your Unit 1
Assignment for the First Class.
Unit 1: Pacta Sunt Servanda and the Folk-Lore of Promises and Contracts.
Read: First read the Introduction and Course Description and What is a Lawyer
in the HANDBOOK. Then read the following until you come to Unit 2. Prepare
answers to the questions below. Finally, read RESTATEMENT (SECOND) OF
CONTRACTS §§ 1 and 2 in the Rules Pamphlet.
Key Concepts: Binding Promise; Consent.
We begin our study of contracts with several stories about people who made
promises they later regretted. Myths, folk-tales, and literature are excellent ways to
examine societal values and beliefs. Even fairy tales meant for children often embody
adult social values. Before you become enmeshed in the technicalities of contract law,
you should take stock of what “non-lawyers” through the ages have thought about their
promissory commitments.
Prepare to Answer the Following Questions in Class:
1. We begin with a Bible story. Identify the two promises that are made
in the following tale. In each case, describe what was being exchanged for the
promise. Finally, describe how the two promises related to each other.
The Story of Jephthah
Jephthah the Gileadite was a mighty warrior. His father was Gilead; his
mother was a prostitute.
2
Gilead’s wife also bore him sons, and when they were grown, they
drove Jephthah away. “You are not going to get any inheritance in our family,”
they said, “because you are the son of another woman.”
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So Jephthah fled
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from his brothers and settled in the land of Tob, where a gang of scoundrels
gathered around him and followed him.
4
Some time later, when the Ammonites were fighting against Israel,
5
the elders of the city of Gilead went to get Jephthah from the land of Tob.
6
“Come,” they said, “be our commander, so we can fight the Ammonites.”
7
Jephthah said to them, “Didn’t you hate me and drive me from my
father’s house? Why do you come to me now, when you’re in trouble?”
8
The elders of Gilead said to him, “Nevertheless, we are turning to you
now; come with us to fight the Ammonites, and you will be head over all of us
who live in Gilead.”
9
Jephthah answered, “Suppose you take me back to fight the
Ammonites and the LORD gives them to me—will I really be your head?”
10
The elders of Gilead replied, “The LORD is our witness; we will
certainly do as you say.”
11
So Jephthah went with the elders of Gilead, and the
people made him head and commander over them. And he repeated all his
words before the LORD in Mizpah.
Jephthah tried to negotiate a peace with the Ammonite king, but the
king refused, claiming rightful ownership of the land of Gilead.
29
Then the Spirit of the LORD came on Jephthah. He crossed Gilead and
Manasseh, passed through Mizpah of Gilead, and from there he advanced
against the Ammonites.
30
And Jephthah made a vow to the LORD: “If you give the Ammonites
into my hands,
31
whatever of mine that comes to meet me when I return in
triumph from the Ammonites will be the LORD’s, and I will sacrifice it as a burnt
offering.”
32
Then Jephthah went over to fight the Ammonites, and the LORD gave
them into his hands.
33
He devastated twenty towns from Aroer to the vicinity
of Minnith, as far as Abel Keramim. Thus Israel subdued Ammon.
34
When Jephthah returned to his home in Mizpah, who should come out
to meet him but his daughter, dancing to the sound of timbrels! She was his
only child. Except for her he had neither son nor daughter.
35
When he saw her, he tore his clothes and cried, “Oh no, my daughter!
You have brought me down and I am devastated. I have made a vow to the
LORD that I cannot break.”
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“My father,” she replied, “you have given your word to the LORD. Do
to me just as you promised, now that the LORD has avenged you of your
enemies, the Ammonites.
37
But grant me this one request,” she said. “Give me
two months to roam the hills and weep with my friends, because I will never
marry.”
38
“You may go,” he said. And he let her go for two months. She and her
friends went into the hills and wept because she would never marry.
39
After the two months, she returned to her father, and he did to her as
he had vowed. And she was a virgin.
From this comes the Israelite tradition
40
that each year the young
women of Israel go out for four days to commemorate the daughter of
Jephthah the Gileadite.
JUDGES 11 (NEW INTERNATIONAL VERSION)
There is disagreement among modern readers about what happened to
Jephthah’s daughter when Jephthah “did to her as he had vowed.” Most
scholars believe that he sacrificed her as a burnt offering. Others contend that
he only prevented her from marriage, arguing that human sacrifice was
contrary to divine law. And of course, a number of modern readers believe that
what “really” happened to her is a meaningless question because this is a fable,
possibly inspired by the Homeric story of Agamemnon’s sacrifice of his
daughter Iphegenia to assist his campaign in the Trojan War. Your answers to
the following questions do not depend on whether you believe the account to
be true.
2. Did Jephthah promise to sacrifice his daughter? If not, then why did he do it?
3. Does the story of Jephthah have a lesson or moral that concerns promising? If
so, what do you think the moral of the story is?
4. Go online and research the plot outlines of the following stories and folk-tales,
if you are not already familiar with them:
Faust;
The Devil and Daniel Webster;
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The Pied Piper of Hamelin; and
Rumpelstiltskin.
5. Which of these stories involve promises? Which of those promises are
binding? What moral does each story suggest about making promises?
6. What folk attitudes toward promises are suggested by the stories of Jephthah,
Faust, The Devil and Daniel Webster, The Pied Piper, and Rumpelstiltskin? Do
the characters in these stories see their ability to make binding promises to be a
valuable power or a fearful risk? Do people today share these attitudes? Do the
folktales recognize a countervailing right to change one’s mind? Why not?
7. Go back online and look up the phrase “pacta sunt servanda.” What principle
does it express?
8. Contract law has been described by one of its foremost experts as “the law of
regretted decisions.” Why do you think he said that?
Comment
Because contracts are legally binding promises, folklore about making
promises introduces us to several principles of contract law:
1. Throughout recorded history, ordinary people have taken promises very
seriously and have considered them to be “binding.”1 It never occurred to any of the
characters in today’s stories that they did not have to perform their promises, at least
unless they could find an “out” like Jabez Stone or the miller’s daughter-turned-queen in
Rumpelstiltskin.
2. The principle of contract law that differentiates it from tort law, criminal
law, or property law is that contractual duties arise from consent; they are not imposed
1
An early legal metaphor for legal obligations was a chain literally binding the debtor (the person
under a duty) to the creditor (the person to whom the duty was owed). Obligatio [Obligation] is
derived from ligare (to bind or fetter), and in an early definition it is said to be a vinculum juris, legal
bond. Raoul Berger, From Hostage to Contract, 35 Ill. L. Rev. 281, 284 (1949)
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by law. Like each of the other promisors in these stories, Jephthah had only himself to
blame for his predicament because he voluntarily undertook to perform his promise.
3. In folklore, there is usually no need to “enforce” a promise because
promises are never breached. Everyone assumes that promises must be performed. In
the rare circumstance in which promises are breached, as in the Pied Piper of Hamlin, the
consequences are usually dire.
4. Each of the promises from folklore was given in exchange for something
the promisor wanted. This notion of the promisor exchanging a promise for something
the promisee gives in return will underlie the first legal rule that we will be studying, the
doctrine of consideration.
5. Once a promise is made in folklore, it is final and binding. “No backsies!”
The promise cannot be undone and there are no excuses for non-performance. The
outcome in Devil and Daniel Webster is a rarity. Does it imply something about American
folk-beliefs about lawyers?
6. To make a promise in a folktale is to take a deadly risk. In each story, the
protagonist makes a hasty promise that leads to someone’s death or damnation. The
moral of each story appears to be “Don’t make promises.” None of the stories
illustrates the beneficial effects of making or receiving promises.
The narrative tradition, whether in scripture, literature, or folklore, is in part a
matter of moral instruction, a way of making claims about how we should live and the
consequences of good and bad behavior. In this respect, it resembles the literature of
the law: the appellate decision. For example . . . .
Embola v Tuppela
220 P. 789 (Wash. 1923)
John Tuppela joined the gold seekers' rush to Alaska, and, after remaining
there a number of years prospecting, was adjudged insane and committed to an asylum
in Portland, Oregon. Upon his release, after a confinement of about four years, he
found that his mining properties in Alaska had been sold by his guardian.
In May of 1918, Tuppela, destitute and without work, met Embola at Astoria,
Oregon. They had been close friends for a period of about thirty years. Embola
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advanced money for his support, and in September brought him to Seattle to the home
of Herman Lindstrom, a brother-in-law of Embola. Tuppela had requested a number of
people to advance money for an undertaking to recover his mining property in Alaska,
but found no one who was willing to do so. The estimated value of this mining property
was about $500,000.
In the month of September, Tuppela made the following statement to
Embola: "You have already let me have $270. If you will give me $50 more so I can go
to Alaska and get my property back, I will pay you ten thousand dollars when I win my
property." Embola accepted this offer and immediately advanced the sum of $50.
In January, 1921, after extended litigation, Tuppela recovered his property.
Tuppela, remembering his agreement with Embola, requested Mr. Cobb, his trustee, to
pay the full amount, and upon his refusal so to do, this action was instituted to collect
the same.
Tuppela’s answer denies the contract and alleges that, if it were made, it is
unconscionable, not supported by adequate consideration, procured through fraud, and
is usurious. Tuppela also alleges that the amount advanced did not exceed $100, and he
has paid $150 into the registry of the court for the benefit of respondent.
The court found in favor of Embola.
Tuppela contends that the amount advanced is a loan and therefore usurious,
and that the sum of $300 is not an adequate consideration to support a promise to repay
$10,000. It is the contention of Embola that the money advanced was not a loan but an
investment; that the transaction was in the nature of a grubstake contract which has
been upheld by this court.
This is not a case wherein Embola advanced money to carry on prospecting.
The money was advanced to enable Tuppela to recover his mining property. Embola
had already been advised by an attorney that he could not recover this property. The
risk of losing the money advanced was as great in this case as if the same had been
advanced under a grubstake contract. Where the principal sum advanced is to be repaid
only on some contingency that may never take place, the sum so advanced is considered
an investment and not a loan and the transaction is not usurious. "To constitute usury it
is essential that the principal sum loaned shall be repayable at all events and not put in
hazard absolutely. If it is payable only on some contingency, then the transaction is not
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usurious . . ." 27 R.C.L. § 21, p. 220. The fact that the money advanced was not to be
returned until Tuppela won his property, a contingency at that time unlikely to occur,
supports the finding that the consideration was not inadequate.
To the contention that the contract was procured through fraud, the testimony
shows that Tuppela voluntarily offered to pay the $10,000, and at the time was of sound
and disposing mind and considered that the contract was fair and to his advantage.
The trial court having found that there was no fraud and that the contract was
not unconscionable, we should uphold these findings unless the evidence preponderates
against them. We are satisfied that the evidence supports the findings.
The judgment is affirmed.
QUESTIONS
1. How is Tuppela similar to the Rumplestiltskin princess or the
residents of Hamlin?
2. If Tuppela wanted to perform his promise and repay Embola, why did
Embola have to sue?
3. Is it “fair” to force Tuppela to pay $10,000 in return for Embola’s
payment of $50? Why or why not?
4. Do you think the average non-lawyer would agree with the outcome
in Embola v Tuppela? Why or why not? (Oh, that’s right: you are the average
non-lawyer.)
5. What do you think a law student is supposed to learn from Embola v
Tuppela? Why was this case chosen for your first contracts opinion?
6. Why has the decision in Embola v Tuppela become part of
Washington’s official legal history? Do you think a case from 1923 is relevant in
2015?
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Introduction and Course Description.
A contract is a legally enforceable agreement between two people,
known as the “parties” to the contract. The contract stipulates how one or both
of the parties will act in the future and often consists of mutual promises that
are exchanged for each other. For example, one party may promise to work for
the other party, who promises to pay wages. One party may promise to sell
something to the other party, who promises to pay an agreed price. One party
may loan money to the other party, who promises to pay it back with interest.
The law of contracts concerns promises that are legally enforceable. If a
contract promisor breaches a legally enforceable promise, i.e., if she fails to
perform as promised, the other party may sue the breacher in court and recover
as “damages” an award of money intended to compensate for any harm or loss
caused by the breach of promise. This is what is meant by the notion that
contracts create legal duties. Unlike the legal duties created by legislatures and
courts, contractual duties are created by individuals making agreements with
each other.
Contracts are the way that large commercial enterprises coordinate
their transactions with each other. They are critical to the smooth functioning of
the modern economy. Yet, they also may used to define the relationship that
family members will have to each other. The purpose of this course is to
enable you to represent clients who are parties to contracts at the stages
of negotiation, administration, and dispute resolution.
The course in Contracts deals primarily with the rules that courts
follow when they resolve disputes that arise from broken contracts. These
include the rules that determine whether and to what extent particular
promises are enforceable; how communications are to be interpreted and
understood during the process of agreement; how contracts are formalized in
writing; how the risks of uncertainty are allocated; how contract enforcement is
affected by fraud, duress, and other misbehavior; and how money remedies are
calculated.
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You will be using three textual resources in this class:
(1)
The Coursebook, AN INTRODUCTION
TO
CONTRACTS: THE LAW
OF
TRANSACTIONS. An electronic copy is available on-line at the TWEN site.
(2) This HANDBOOK. An electronic copy is available on-line at the TWEN
site.
(3) The paperback rules pamphlet, RESTATEMENT 2D CONTRACTS AND U.S.
U.C.C. ARTICLE 2 (JAMES E. BYRNE, ED.), offered for sale in the bookstore.
You will have access to a local area network site known as “TWEN.” The
TWEN site is an electronic bulletin board that contains a variety of information:
downloadable copies of the Coursebook and Handbook, occasional revisions to
assignments, sample questions and answers, links to additional cases and
articles, and threaded discussions of course topics.
I will give you more
information on the TWEN site in class.
How to Prepare for Class. The Coursebook gives reading assignments
and questions for each class. We will cover one Unit per class, two per week.
Each unit begins with a summary of the assigned reading.
The primary textbook in this course is called a Coursebook rather than a
casebook because, in addition to all the cases you would find in a typical
contracts casebook, it also contains questions to be answered for each case and
information about what we will be doing in class. Because most of our
classroom discussion will come from your answers to these questions, the
Coursebook is actually a tool that enables you to prepare for class.
The Coursebook and Handbook are given to you in electronic versions as
PDF and as Word files to give you the ability to manipulate the text. After
downloading the Coursebook and Handbook as Word files, you may treat them
as you wish. You can change the font or font size for ease of reading. You can
correct my typos. You can highlight important language in the cases with color
or otherwise. You can copy and paste selected language from cases or statutes
into your Coursebook answers. You can add your answers to the Coursebook
questions and modify them after class and throughout the semester. Your
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written answers to the questions along with your class notes and later
reflections can form a continuously-updated summary of the course.
The Handbook serves a different purpose. It is meant to be a guide to the
course and to law school in general. It has general information on the practice of
law and the nature of legal reasoning and analysis. Many Coursebook units will
ask you to read one of the sections of the Handbook that explains the law
relevant to that assignment. The Handbook also contains answers to writing
assignments that are given in the Coursebook, sample exams and answers, and
the Rules of Professional Conduct. Feel free to browse the Handbook for
anything else you might find useful there. For example, it contains an outline of
the trial and appellate process that you can refer to when you are confused
about procedural aspects of the cases we read.
The reading assignments are summarized in the Coursebook at the
beginning of each Unit. You should continue reading until you come to the
beginning of the next Unit. References to “RPC" refer to the Rules of Professional
Conduct, found at the end of the HANDBOOK and designated by rule number. You
should look in the paperback rules pamphlet, RESTATEMENT 2D CONTRACTS AND U.S.
U.C.C. ARTICLE 2 (JAMES E. BYRNE, ED.) for references to the RESTATEMENT (SECOND)
OF THE LAW OF CONTRACTS and the Uniform Commercial Code (UCC), each of which
is followed by numbers of the sections referred to.
Example:
If the assignment for Unit 3 is "Hardesty”; RPC 2.1,
Restatement (Second) of Contracts §§ 60, 63; UCC § 2-207", you are being asked
to
(1)
Read and brief the case “Hardesty v Smith” printed in the
Coursebook;
(2) Read Rule of Professional Conduct number 2.1, located at the end
of the HANDBOOK;
(3) Read Sections 60 and 63 of the RESTATEMENT (SECOND) OF THE LAW OF
CONTRACTS, contained in the rules pamphlet RESTATEMENT 2D CONTRACTS AND U.S.
U.C.C. ARTICLE 2; and
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(4) Read section 2-207 of the Uniform Commercial Code, also found in
RESTATEMENT 2D CONTRACTS AND U.S. U.C.C. ARTICLE 2.
Classroom Discussion and the "Socratic" Method.
As you know, from time to time, you will all be called upon by name to answer
questions about the assigned cases. Many of those questions appear in the
assignment and you will already have prepared answers to them. When we
review a reported opinion (a “case”), I ask questions of three types:
1. I will ask questions to see whether you understood the reported
opinion. (E.g. "Who was the plaintiff? What did the plaintiff claim? What rules
did the court apply? What facts did it consider to be legally significant?") These
questions test your ability to read this new form of technical prose carefully and
with comprehension. In the beginning, these will be the most difficult questions
because you will have to figure out the factual and procedural history of the
cases and the meanings of a lot of unfamiliar terminology as well as the legal
reasoning used by the court. Virtually all these answers should come from your
brief.
2. Once I am satisfied that you understand the written opinion, I will
begin to ask you to apply the rules or principles used by the court to new factual
situations or "hypos." Some hypos vary the facts just a little (so that you must
decide which of the original facts were legally significant); some will vary the
facts a lot (so that you must decide upon the outer limits of the legal principles
or rules used in the case); some will involve completely different situations (so
that you will learn to "spot" legal issues in novel settings.) Most of these hypos
that I will ask will be given in this workbook, and you can discuss your proposed
answers with your classmates before class.
3. Once I am satisfied that you understand and can interpret the
judicially-announced legal rules in the context of hypos of this type, I will ask
you to criticize them or to reflect on their consequences or policy justifications.
Most of these questions will also be given in the workbook.
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Some of these classroom questions have clear right or wrong answers,
while others do not. In the first few days, I will tell you which is which.
Generally, all the type 1 questions have definite, right or wrong answers. That is
less true of the type 2 hypos and even less true of the type 3, policy questions.
The latter may simply require you to say something reasonable about the
subject matter.
To reduce the stress of this process, you will not be graded on your
answers or your class participation, except that I will reduce your grade by 1/3
letter for persistent failure to prepare or participate. The point of our
questioning is not to evaluate you in any way: it is to give you experience in
interactive legal discourse, to get you to think and say the things that lawyers
think and say. You may think of this as practicing a new language: errors are
going to be ubiquitous until you achieve proficiency. That is how you learn.
In any event, most of the questions I will ask are set forth in this
workbook, so you should prepare some sort of response before that moment in
class when I look down at my class list, mispronounce your name, and . . . .
Assessment and Feedback. Your grade in this course will be determined
by your performance on an in-class, closed-book three-hour examination to be
given at the end of each semester. As noted, I may adjust your grade down by
1/3 letter for persistent, failure to participate in class discussion when called
upon. You will be given more information about the examination and grading
policy later in the semester.
To give you feedback during the semester, the Handbook contains
several essays on legal analysis and the Coursebook contains several writing
exercises and sample questions designed to give you a sense of how well you
understand the material we have covered and how well you will do in applying
it to problems such as those you will face on the examination. Model answers
and comments are provided in the Handbook for most of these writing exercises
and questions, so that you can assess your own performance as you proceed
through the semester. In addition, the Handbook contains sample examination
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questions and model answers from earlier years. The final examination will
consist of similar kinds of questions and will seek similar kinds of answers.
A second kind of feedback occurs during class discussions. While these
may at times feel as if they were designed to put you on the spot in front of your
classmates, they are not. They are instead intended as conversations that
illustrate, over and over, the kind of self-questioning, argumentation, and
speculative reasoning that characterize thinking like a lawyer. The Q and A is
not a test or a challenge and your answers will not affect your grade. It is an
opportunity for you to practice speaking the language of lawyers (and it is a
language!). No one can learn a new language without making a ton of mistakes,
so try to relax and enjoy it.
While listening to the Q and A, you should pay less attention to the
student answers than to the professor’s questions and hypotheticals. You will
know that you are making progress when you begin to anticipate those
questions and hypotheticals, both in class and when you are pondering a legal
problem on your own.
A third, and very important, kind of feedback comes from your
classmates or study group partners as you discuss and argue about the cases,
rules, and problems in the assignments. You are encouraged to collaborate with
each other in developing answers to the Coursebook questions. Study groups
are common, especially in the first year of law school. You should also write
your answers out in your Coursebook file so that you will be able to refer to
them if necessary during class discussions. Of course, they can always be
modified in light of our class discussion.
If you are like most law students, the most important and lasting part of
what you learn in law school will be what you teach yourself in these sessions
with your classmates as you develop and share insights into the mysterious
stuff you are reading about. Just talking to another student helps you to become
fluent in the language of the law. Most law students collaborate with others in
formal and informal study groups. The feedback you get from these experiences
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can be invaluable. They will prepare you for the collaborative work that is so
often called for in practice.
What is a Lawyer?
At the end of the Nineteenth Century, America’s most legendary jurist
gave the following advice to a group of law students:
When we study law we are not studying a mystery but a well-known
profession. We are studying what we shall want in order to appear
before judges, or to advise people in such a way as to keep them out of
court. The reason why it is a profession, why people will pay lawyers to
argue for them or to advise them, is that in societies like ours the
command of the public force is entrusted to the judges in certain cases,
and the whole power of the state will be put forth, if necessary, to carry
out their judgments and decrees. People want to know under what
circumstances and how far they will run the risk of coming against
what is so much stronger than themselves, and hence it becomes a
business to find out when this danger is to be feared. The object of our
study, then, is prediction, the prediction of the incidence of the public
force through the instrumentality of the courts. Oliver Wendell Holmes,
Jr., The Path of the Law, 10 HARV. L. REV. 457 (1897).
Most of you will be practicing law three years from today. We have
designed your first-year curriculum to begin to prepare you for that
undertaking. While your courses deal with different doctrinal areas -- contract,
tort, civil procedure, criminal law, property, and legal writing -- each of them is
also designed to equip you with the knowledge, skill, and judgment necessary to
render legal services to your future clients.
Despite Holmes’ assurance, the legal profession has always been
somewhat of a mystery to beginning law students. What exactly do lawyers do?
What is their real value to society? More concretely, what will make you worth
your fee or paycheck? And when you end your professional career, hang up
your briefcase, and switch off whatever portable computing device you will be
carrying or wearing, what exactly will you be able to say that you accomplished?
LAW IS A PROFESSION. Holmes referred to law as a “well-known
profession.” What does it mean that you are all entering into a “profession”? It
means several things: The practice of law is undertaken by men and women
who are committed to certain shared ethical standards,
who possess expert knowledge and skill,
who belong to a group whose membership regulates itself,
who view their work as a “vocation” in the sense of a “calling,” and
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who are not merely employees but are autonomous agents committed
to the public interest as well as to their clients’ interests.
As a group, lawyers enjoy a legally-enforced monopoly on the practice
of law. In return for this privilege, they owe an obligation to represent all those
who need legal services. Part of this obligation is expressed in the Rules of
Professional Conduct, which bind all licensed lawyers in the State of
Washington:
Rule 6.1. Pro bono publico service.
A lawyer should render public interest legal service. A lawyer may
discharge this responsibility by providing professional services at no fee or a
reduced fee to persons of limited means or to public service or charitable
groups or organizations, by service in activities for improving the law, the
legal system or the legal profession, and by financial support for
organizations that provide legal services to persons of limited means.
In representing both paying and non-paying clients, lawyers fulfill
social, economic, and political roles whose functions are essential to our social,
economic, and political system.
WHAT DO LAWYERS DO? The first and most important thing to realize
about lawyers is that they have clients. Like doctors and unlike farmers, lawyers
cannot practice their craft alone. Law is a service profession and lawyers
provide several kinds of professional service to the people and institutions who
are their clients.
The most common form of legal service is counseling, or advising a client
about his legal interests. As Holmes said, your client will consult you because of
your knowledge of law and legal procedures. If the client has a legal problem,
you must advise him about what legal strategies might resolve the problem,
how likely they are to succeed, what are their risks and benefits, and what
course of action you recommend. A counselor must be able to predict "the
incidence of public force through the instrumentality of the courts" that Holmes
referred to. In other words, “What is likely to happen if we end up in court?”
This prophetic task requires both technical knowledge and that difficult-toteach, impossible to define, yet supremely important quality known as
"judgment."
As you counsel your client, you also provide a linkage that is of critical
importance to our system of rule of law. A system of rules designed to regulate
people’s behavior can be effective only if people know what the rules are and
how to comply with them before they act. It is through this counseling process,
repeated thousands of times every day, that the law "in the books" is translated
for and transmitted to society, enabling law to have its intended effects on
public behavior.
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The attorney-client relationship thus involves a reciprocal and
conflicting exercise of power. In one sense, you will be in charge because of
your superior knowledge of legal institutions and procedures. You will have the
power that comes with expertise. In exercising the counseling function, you will
have the opportunity to advise the client not only about the legally expedient
thing to do, but also about the right thing to do. The Rules of Professional
Conduct express it this way:
Rule 2.1. Advisor:
In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but to other considerations such as
moral, economic, social and political factors, that may be relevant to the
client's situation. . . .
[This and other selected Rules of Professional Conduct are at the end of
the Supplement.]
In another sense, however, your client will be in charge because you are
sworn to serve his interests and purposes. For example, R.P.C. 1.2 (a) provides
Rule 1.2. Scope of representation.
(a) A lawyer shall abide by a client's decisions concerning the
objectives of representation, . . . and shall consult with the client as to
the means by which they are to be pursued.
In this sense, and within very important limits that you will learn, he
will call the shots. Unfortunately, you may often have to resolve the tension
between your “independent professional judgment” and your duty to “abide by
a client’s decisions.”
A deeper problem with which you may struggle throughout your career
is the extent to which you are morally responsible for your client’s behavior.
Your client may be a wealthy criminal defendant, an abusive parent in a child
custody battle, a greedy real estate developer, a regulated corporate
manufacturing firm, an employers’ association in a lobbying firm, or the State of
Washington in a tax dispute. Your legal services will assist your client in
achieving its goals even though you may sometimes have no sympathy with
those goals. Does this mean that you are morally responsible for what your
client does with your advice?
The Rules of Professional Conduct are somewhat mixed on this point.
Rule 1.2 (b) provides:
(b) A lawyer's representation of a client, including representation by
appointment, does not constitute an endorsement of the client's political,
economic, social or moral views or activities.
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This rule appears to permit the lawyer to say to herself, “I’m not
responsible; I’m just doing my job.” But Rule 1.15 provides that a lawyer may
withdraw from representing a client (we call that “firing the client”) under
several circumstances including the following:
(1) The client persists in a course of action involving the lawyer's services
that the lawyer reasonably believes is criminal or fraudulent;
(2) The client has used the lawyer's services to perpetrate a crime or fraud;
(3) The client insists upon pursuing an objective that the lawyer considers
repugnant or imprudent;
“Repugnant” surely includes unethical or immoral. So you must
sometimes make the hard decision about whether to say, “I’m sorry, you’ll have
to get another attorney.” So long as you are not assisting the client in criminal or
fraudulent behavior, the rules leave this issue largely up to you. The ideal of
every lawyer should be to live a life of integrity, in which her professional
values are consistent with her personal values. But you will have a family to
support and the issue may be difficult indeed. Maybe Spike Lee had the right
advice here: Do The Right Thing.
In addition to giving legal advice, lawyers provide a different form of
service when they represent (“re-present”) a client to third parties. As an
advocate, the lawyer argues on behalf of a client before tribunals, such as judges
and juries, who have the power to affect the client's welfare in dramatic ways.
In this sense, the lawyer is a champion. (Thus the epithet referring to an
attorney as a “hired gun.”) This is the role you are probably most familiar with
from popular culture. Many of you, like myself, may have become a lawyer in
part because you were inspired by the heroics of fictional courtroom lawyers
like Atticus Finch or Perry Mason or My Cousin Vinny.
Lawyers also represent clients when they negotiate on the client’s
behalf. As a negotiator, a lawyer seeks to speak for the client in structuring the
client's legal relations with other parties or other lawyers. (Thus the epithet
referring to an attorney as a "mouthpiece.") Negotiation involves give-and-take
in an effort to arrive at a mutually satisfactory arrangement that will protect the
client’s interests. Lawyers often negotiate the terms of contracts that their
clients enter with third parties. This course will give you an idea of what
knowledge and skill you will need to bring to the table if you assume this role.
Whether as an advocate or as a negotiator, the attorney must be able to
tell the client's story in language that the third parties understand and respond
to. This language is the "power-language" of the courtroom or the boardroom.
You are beginning to learn that language.
I have given some version of the foregoing description to first year
students for over 20 years. But as a poet from my youth once intoned, “The
times, they are a’changin.” He is now an old man, but his words remain apt. The
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legal profession is undergoing radical change, not in its ideals or professional
standards but in the marketplace for legal services.
The causes are many. Technology has revolutionized lawyers’ day-today lives: administrative assistants, law libraries, file cabinets, law offices,
receptionists, conference rooms and legal pads grow increasingly obsolete to a
lawyer who has installed the right apps on her smart phone and maintains a
constant link to the internet. That same smart phone, however, now tethers her
to her clients, to whom she must be available “24/7”. The internet that liberated
you from libraries full of law books now permits people to do things for
themselves that they formerly needed an attorney to do, like drafting a will or
creating a corporation. Globalization and the internet have permitted Englishspeaking attorneys in India and other countries to perform legal services for
American clients, such as research, writing, and document review, at much
lower rates than American lawyers would charge. As a result many firms
“outsource” legal work that they would formerly have had done by associates.
Unauthorized on-line legal services offered directly to clients will be as
impossible to police as on-line Viagra sales. Paraprofessionals are being
licensed to do many legal tasks that used to be done by lawyers. Within law
offices, artificial intelligence is performing document review and due diligence
review that used to be done by lawyers. Arbitration and mediation are replacing
litigation as ways of resolving personal and business disputes.
No one can confidently predict what legal practice will look like even
when you graduate in three or four years. It will continue to be revolutionized
by technology and economic change throughout your careers. Your life-long
challenge as an attorney will be to recognize, understand, and adapt to an
endless series of “new normals.”
The one thing that you can confidently predict about this future is this:
if a task can be done by artificial intelligence or a computer program, it
ultimately will be. Human lawyers will remain relevant, and will continue to
earn a legal fee, only if they provide their clients with something important that
cannot be done equally well and more cheaply by a robot.
Facing this future, you should see law school, not only as your
predecessors have done: as a place to learn to “think like a lawyer” in order to
do the things that lawyers have always done. You must also see it as well as a
place in which you learn how to learn. You must also be creative, devising new
ways to serve your clients, or as they say in the financial services industries,
providing new “legal products” at competitive prices. You will learn how to
become the lawyer of the future, how to recognize the shifting roles you will
play, and how to capitalize on the opportunity to provide legal services under
new paradigms.
The Oath.
To give you a sense of the ethical commitments an attorney undertakes,
read the following oath taken by all attorneys upon admission to the
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Washington State bar. (It will be more effective if you read it aloud.) On the next
page is an aspirational statement by the Washington Bar Association.
WASHINGTON STATE OATH FOR ADMISSION TO THE BAR.
I do solemnly declare:
1. I am fully subject to the laws of the State of Washington and the laws of the United States
and will abide by the same.
2. I will support the constitution of the State of Washington and the constitution of the
United States.
3. I will abide by the Rules of Professional Conduct approved by the Supreme Court of the
State of Washington.
4. I will maintain the respect due to the courts of justice and judicial officers.
5. I will not counsel, or maintain any suit, or proceeding, which shall appear to me to be
unjust, or any defense except as I believe to be honestly debatable under the law, unless it
is in defense of a person charged with a public offense. I will employ for the purpose of
maintaining the causes confided to me only those means consistent with truth and honor. I
will never seek to mislead the judge or jury by any artifice or false statement.
6. I will maintain the confidence and preserve inviolate the secrets of my client, and will
accept no compensation in connection with the business of my client unless this
compensation is from or with the knowledge and approval of the client or with the
approval of the court.
7. I will abstain from all offensive personalities, and advance no fact prejudicial to the
honor or reputation of a party or witness unless required by the justice of the cause with
which I am charged.
8 I will never reject, from any consideration personal to myself, the cause of the defenseless
or oppressed, or delay unjustly the cause of any person.
The Creed
Washington State Bar Association
As a proud member of the legal profession practicing in the state of Washington, I
endorse the following principles of civil professional conduct, intended to inspire and guide
lawyers in the practice of law:
• In my dealings with lawyers, parties, witnesses, members of the bench, and court
staff, I will be civil and courteous and guided by fundamental tenets of integrity and
fairness.
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• My word is my bond in my dealings with the court, with fellow counsel and with
others.
• I will endeavor to resolve differences through cooperation and negotiation, giving
due consideration to alternative dispute resolution.
• I will honor appointments, commitments and case schedules, and be timely in all my
communications.
• I will design the timing, manner of service, and scheduling of hearings only for
proper purposes, and never for the objective of oppressing or inconveniencing my
opponent.
• I will conduct myself professionally during depositions, negotiations and any other
interaction with opposing counsel as if I were in the presence of a judge.
• I will be forthright and honest in my dealings with the court, opposing counsel and
others.
• I will be respectful of the court, the legal profession and the litigation process in my attire
and in my demeanor.
• As an officer of the court, as an advocate and as a lawyer, I will uphold the honor and
dignity of the court and of the profession of law. I will strive always to instill and
encourage a respectful attitude toward the courts, the litigation process and the legal
profession.
Creed of Professionalism
This creed is a statement of professional aspiration adopted by the Washington State Bar
Association Board of Governors on July 27, 2001, and does not supplant or modify the
Washington Rules of Professional Conduct.
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A Client-Centered Perspective
In this course, you will usually be asked to address questions or to solve
problems on behalf of imaginary clients. The exercises require you to assume
one of three of the roles that you will soon be fulfilling as an attorney:
(1) The transaction lawyer (or “deal lawyer”) who must plan, draft,
and negotiate contract terms that create a new business relationship;
(2) The legal advisor who must advise a client about problems arising
in the performance of a contract.
(3) The litigator who must develop a successful strategy for trial or
arbitration of a dispute that cannot be resolved by negotiation.
These roles roughly correspond with the typical time line for a contract,
beginning with pre-formation negotiation, proceeding to drafting and contract
formation, contract performance, breach, and litigation. Each role requires its
own skill and knowledge:
Transaction Lawyer, the architect of the relationship.
*Designs legal relationships that facilitate economic transactions.
*Can alter most background, contract default rules.
*Needs skills in communication, foresight, imagination, creativity,
expression, and negotiation.
*Must integrate legal expertise with knowledge of the client's business
circumstances.
*Plans for risk and failure as well as success.
*Must be sensitive to statutory and judicial language.
Legal Advisor, the fixer and consigliere.
* Provides advice to the client during the performance stage.
* Often must act under time-pressure and with incomplete information.
* Must deal with the contract terms as they are.
* Can sometimes orchestrate the legally-operative facts.
* May communicate demands, inquiries, and responses to other
contract parties.
* Must balance efforts to get the performance of the contract back on
track against the risk of litigation if it blows up.
Litigator, the warrior-advocate
* Represents the client in a dispute about the contract.
* Attempts to avoid litigation or arbitration and work toward
settlement of the dispute through negotiation or mediation.
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* If litigation or arbitration is inevitable, strives to optimize the
outcome: usually this means maximize net recovery or minimize net loss.
* Must take both the legal rule (including the contract) and the
operative facts as givens, but must, in a sense, “create” evidence (e.g. testimony)
for use at trial.
* Must translate legal rule elements into evidentiary strategies and trial
narratives.
* Must develop both liability and remedial theories of the case.
* Must be skilled in argument strategy and tactics.
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