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Introduction A. Ethics, morals, and professionalism Morals: values that we attribute to a system of beliefs that help the individual define right versus wrong, good versus bad. Get their authority from outside the individual Ethics: as a general concept, aka moral philosophy, its the discipline concerned with what is morally good and bad, right and wrong. Term also applied to any system or theory of moral values or principles. o Talking about legal ethics principles of conduct that members of the profession are expected to observe in the practice of law o Unethical = asking whether act would violate the ethics codes that govern lawyers o When thinking about legal ethics, think about whether conduct in question violate the ethics codes Profession and professionalism o Members of professions need licenses o Commitment to serving others those licensed have monopoly of practicing o Professional usually means doing a job carefully, and professionals have their own standard of performance o Becoming a professional means adopting a defined role and complying with articulated standards of conduct B. Some central themes of the book 1. Conflicts of Interest Duty to a client v. duty to the community when know client committed crime 2. Truthfulness Whether and to what extent a lawyer is obliged to be truthful Rule 8.4 prohibits dishonesty, fraud, deceit, and misrepresentation 3. Lawyers duties to client versus their duties to the justice system Some lawyers see primary goal as protection and advancement of clients interests Others see responsibility to protect justice system and ensure proceedings fair, participants play by rules 4. Lawyers personal and professional interests versus their fiduciary obligations 5. Self-interest as a theme in regulation of lawyers

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Rule 1.5(b) explains lawyers duty to inform clients about basis of feed based on time spent Lawyers as employees: institutional pressures on ethical judgments Following instructions of senior partner, keeping private information about misconduct Structure of book The rules quotes in the book: A note on sources ABA drafts and issues Model Rules of Professional Conduct and recommends that state courts adopt them In 2002 DE adopted Model Rules and official comments Stylistic decisions

Chapter 1: The Regulation of Lawyers A. Institutions that regulate lawyers 1. The highest state courts Most of lawyer law is created through normal legislative, administrative, or judicial processes Legal profession largely self-regulated o Beneficial because provides legal profession with independence from the state Most states highest court of state (not the leg) is responsible for adopting rules of conduct that govern lawyers consult with states bar association in drafting rules o Adopt ethics codes and court procedural rules o Standards for licensing of lawyers o Agencies to investigate and prosecute complaints of unethical conduct o Administrative judicial bodies to impose sanctions on violators o This regulation is exception that laws usually made democratically by elected reps of the people However, courts regulate as aspect over authority to administer the courts Highest court of state responsible for enforcing rules by disciplining lawyers who violate them Inherent powers doctrine: in states where constitution doesnt expressly delegate power to judiciary, courts claim that they have

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inherent authority to regulate conduct of the lawyers as a matter of common law because the courts need the authority to govern the conduct of those who appear before them Negative inherent powers doctrine: state courts assert that their regulatory authority over lawyers is exclusive of other branches of government State an local bar associations Most organized as private nonprofit organizations, but some have governmental functions Some state courts delegate lawyer regulatory functions to state bar associations when a state bar association does that, called an integrated or unified bar, rather than voluntary bar membership to the bar it then mandatory Lawyer disciplinary agencies Often bear responsibility for investigating and prosecuting misconduct that violates the state ethics code Possible sanctions include disbarment, suspension, public or private reprimand Agencies usually run by state bar association, or by court and state bar The American Bar Association Private, nonprofit membership organization founded in 1878 Only limited governmental authority ABA ethics rules are Model Rules because they have no legal force unless adopted by relevant government authority (usually states highest court) The American Law Institute Private organization of 3000 judges, lawyers, and law teachers that produces summaries of the law called Restatements includes rules governing malpractice liability to clients, rules governing disqualification of lawyers and ethical rules for violations which lawyers may be subject to discipline Restatements = black-letter rules which often summarize the rule followed in a majority of jurisdictions Restatements may not always be consistent with Model Rules, and which to follow depends on situation and lawyer Federal and state trial courts

 These set rules for conduct of lawyers in litigation, by sanctioning lawyers who violate those rules, and by hearing and deciding motions to disqualify lawyers who may have conflicts of interest that preclude their representation of particular clients Each federal district court and court of appeals requires lawyers to be admitted to practice before it 7. Legislatures Congress and state leg play significant role in regulation via constitutions and statutes 8. Administrative agencies In general, lawyers admitted to practice in any state may appear before an agency of that state, and before any federal agency, without a separate admission to practice before the agency Many agencies have special ethical or procedural rules Misconduct in front of an agency can result in civil or criminal penalties 9. Prosecutors Prosecutors have immense discretion over who to file charges against 10. Malpractice insurers Companies regulate the lawyers they insure risk management and loss prevention measures are designed to reduce the likelihood that a lawyer will be held liable for malpractice 11. Law firms and other employers Larger firms have ethical infrastructures to provide lawyers and nonlawyers with training, offering expert advice about ethics and liability issues and 12. Clients Large corporations and government agencies are major consumers of legal services and have great deal of bargaining power in dealing with firms Lengthy and detailed policies B. The state ethics codes ABA Canons of Ethics (1908) exhortations to lawyers of best practices, based on Alabama ethics code, which was based on lectures given by George Sharswood 1960s Justice Powell initiative to ABA to rewrite canons -> ABA Model Code of PR (1969) standards became like binding law

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o Format separated disciplinary rules (DRs) from advisory ethical considerations (ECs) 1977 ABA had committee rewrite rules 1997 another rewrite recognized dramatic changes in legal world in 1980s-80s (litigation between cross-state and national boundaries) primary functions of state ethics codes are (1) to guide lawyers in evaluating what conduct is proper in various situations and (2) provide a basis for disciplining lawyers who violate the rules Research on ethics law Begin with Restatement 3rd of the Law Governing Lawyers Admission to practice A short history of bar admission Colonial times = apprenticeships, no law schools Earl law schools were affiliates with universities Early twentieth century, growth in number of law schools and lawyers who attended them By 1941, attendance in law school was prerequisite for sitting for the bar exam in all but a few states Contemporary bar admission requirements Most states, rules for admission to bar are established by highest court of state Bar admission is individual to each state Once admitted to bar, lawyer must comply with requirements to maintain admission The bar examination Multistate Bar Exam and Multistate Professional Responsibility Examination The character and fitness inquiry Point of inquiry is to see whether applicant will practice law in an honest and competent manner Application residence and employment history, criminal records, traffic records, credit history, records of any litigation, drug abuse or problems of substance abuse Letters of recommendation for admission Disclose absolutely everything

 Information you disclose on bar application must be consistent with information disclosed on law school application Mental health assessment questions involve inquiries about illness that require hospitalization of that involve psychotic disorders In Re Mustafa One factor that affects decisions about prior misconduct is how long ago it occurred This decision is about a man who borrowed some money from a student organization during law school Mustafa had references from professors, employers, and colleagues and committee recommended he be admitted to bar Rule: in order to gain admission to bar, applicant must demonstrate by clear and convincing evidence that applicant possessed good moral character and general fitness to practice law in DC at time of applicants admission

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