Ethical Problems in the Practice of Law (Aspen Casebook Series)

This problem-based book reflects the authors’ broad range of teaching, clinical, and policy-making experience. The book’s carefully crafted ethical problems challenge students to engage in a deep analysis and participate in lively class discussion. Features include: Real-world problems, most based on actual cases, in which students are asked to step into the shoes of practicing lawyers to confront difficult ethical dilemmas that often arise in practice. The law governing lawyers explained in an accessible question-and-answer format. A succinct explanation of relevant Model Rules and other law governing lawyers, including examples from disciplinary and malpractice cases. An opportunity for students, through specific examples, to reflect on their own conception of their professional roles on behalf of clients and their obligations to the legal system as a whole. Lively presentation of materials, including cartoons, tables, and photos. Clear and concise presentation through text and charts that summarize relevant law. Unsolicited comments from adopters of Ethical Problems in the Practice of Law: Professor Cynthia Batt, Stetson University College of Law, wrote that this book “has the BEST teacher’s manual of any text ever.” Professor Jamie P. Werbel, Seton Hall University School of Law wrote: I wanted to drop you a line and let you know how fabulous your textbook is! I just started teaching Professional Responsibility this year, and your book has been invaluable to me as I guide my students through the course. My husband, also an attorney, made fun of me last semester as a few times I was reading it at night in bed! It really is just that enjoyable to read. New to the 6th Edition: A comprehensive revision of the entire text, adding material to continue to provide students with a wealth of opportunities to grapple with ethical issues. Inclusion of recent developments in the field, including: Discussion of the amendments to Model Rule 1.8 regarding gifts to clients: The new ABA ethics opinion on what constitutes material adversity under Rule 1.9; Developments in some states on permitting non-lawyers to provide some legal services; Changes in some states’ rules on non-lawyer ownership of firms; Expanded coverage of ethical issues arising from use of the Internet and social media, such as an ABA opinion on how lawyers may respond to online critiques of their services. Material on recent events that have raised important issues of professional responsibility, especially discipline and sanctions for lawyers who made unfounded claims about the 2020 presidential election. Updated empirical information about the practice of law, including the continuing concerns about diversity within the profession. Benefits for Students: Problem-based approach, often based on real-life cases, offers students a practical way to test their understanding Graphics (cartoons, tables, photos) throughout, which make the presentation lively and engaging Shocking examples of recent lawyer misconduct maintain student interest A readable and enjoyable law school textbook Cover Front Matter Editorial Advisors Title Page Copyright About Aspen Publishing Dedication Summary of Contents Contents Table of Problems Preface to the Sixth Edition for Teachers and Students Acknowledgments A Note to Students About Updates to This Book Introduction A. Ethics, morals, and professionalism B. Some central themes in this book 1. Conflicts of interest 2. Truthfulness 3. Lawyers’ duties to clients versus their duties to the justice system 4. Lawyers’ personal and professional interests versus their ethical and fiduciary obligations 5. Self-interest as a theme in regulation of lawyers 6. Lawyers as employees: Institutional pressures on ethical judgments 7. The changing legal profession C. The structure of this book D. The rules quoted in this book: A note on sources E. Stylistic decisions Chapter 1: The Legal Profession: Bar Admission, History, and Diversity A. Admission to the bar 1. Changes in bar admission requirements over time 2. Contemporary bar admission requirements 3. The bar examination 4. The character and fitness inquiry a. Criteria for evaluation b. Filling out the character questionnaire Problem 1-1: Adderall c. Mental health questions about applicants d. Law school discipline: A preliminary screening process Problem 1-2: The Doctored Resume B. History and development of the U.S. legal profession 1. Pre-revolutionary America 2. The nineteenth and twentieth centuries 3. History of American legal education C. Diversity and discrimination in the legal profession 1. Women lawyers 2. Lawyers of color 3. Lesbian, gay, bisexual, transgender, and queer lawyers 4. Lawyers with disabilities 5. Lawyers from low-income families 6. Other bases of discrimination in the legal profession Chapter 2: The Legal Profession: Regulation, Discipline, and Liability A. Institutions that regulate lawyers 1. The highest state courts 2. State and local bar associations 3. Lawyer disciplinary agencies 4. American Bar Association 5. American Law Institute 6. Federal and state courts 7. Legislatures 8. Administrative agencies 9. Prosecutors 10. Malpractice insurers 11. Law firms and other employers 12. Clients B. State ethics codes C. The disciplinary system 1. Grounds for discipline Problem 2-1: The Dying Mother 2. Reporting misconduct by other lawyers a. The duty to report misconduct Problem 2-2: Exculpatory Evidence b. Lawyers’ responsibility for ethical misconduct by others in a law office Problem 2-3: The Little Hearing c. Legal protections for subordinate lawyers The Wieder case D. Civil liability 1. Legal malpractice 2. Malpractice insurance 3. Other civil liability a. Liability for breach of contract b. Liability for violation of regulatory statutes 4. Disqualification for conflicts of interest E. Criminal liability F. Client protection funds Chapter 3: Relationships Between Lawyers and Clients A. Formation of the lawyer-client relationship 1. Lawyer discretion in selection of clients 2. Offering advice as the basis for a lawyer-client relationship Togstad v. Vesely, Otto, Miller & Keefe B. Lawyers’ duties of competence, diligence, honesty, and communication 1. Competence Problem 3-1: The Washing Machine 2. Competence in criminal cases a. Strickland v. Washington b. The aftermath of Strickland Missouri v. Frye Lafler v. Cooper Problem 3-2: A Desire to Investigate 3. Diligence 4. Candor and communication a. Is it ever okay to lie? b. Lying versus deception: Is there a moral distinction? c. Honest mistakes d. Honesty and communication under the ethics rules e. Civil liability for dishonesty to clients 5. Candor in counseling Problem 3-3: Torture 6. Duties imposed by contract in addition to those imposed by the ethics codes 7. Agreements to limit the scope of representation 8. Contractual modification of a lawyer’s duties: Collaborative law practice C. Lawyers’ responsibilities as agents 1. Express and implied authority 2. Apparent authority 3. Authority to settle litigation D. Who calls the shots? 1. The competent adult client Jones v. Barnes 2. Clients with diminished capacity a. Assessing diminished capacity b. Options available to attorneys when clients have diminished capacity Problem 3-4: Vinyl Windows c. Juveniles E. Terminating a lawyer-client relationship 1. Duties to the client at the end of the relationship 2. Grounds for termination before the work is completed a. When continued representation would involve illegal or unethical conduct b. If the lawyer becomes impaired c. When the client fires the lawyer d. When the lawyer wants to terminate the relationship e. Matters in litigation f. When the client stops paying the fee g. When the case imposes an unreasonable financial burden on the lawyer h. When the client will not cooperate 3. Collection of fees Chapter 4: The Duty to Protect Client Confidences A. The basic principle of confidentiality 1. What is confidential? Problem 4-1: Your Dinner with Anna 2. Protection of information if there is a reasonable prospect of harm to a client’s interests 3. The bottom line on informal communications 4. Additional cautions about protecting client confidences 5. Confidentiality and technology B. Exceptions to the duty to protect confidences 1. Informed consent and implied authorization 2. Revelation of past criminal conduct Case study: The defense of Robert Garrow Problem 4-2: The Buried Bodies, Scene 1 Problem 4-3: The Buried Bodies, Scene 2 What happened next The Belge case People v. Belge People v. Belge (appeal) Problem 4-4: The Buried Bodies, Scene 3 3. The risk of future injury or death Spaulding v. Zimmerman Spaulding v. Zimmerman (appeal) Problem 4-5: Rat Poison 4. Client frauds and crimes that cause financial harm a. Ethics rules allowing revelation of client crimes or frauds to prevent, mitigate, or remedy harm to others b. Enron, the Sarbanes-Oxley Act, and Rules 1.6(b)(2) and (3) c. Subsequent developments in the implementation of Sarbanes-Oxley Problem 4-6: Reese’s Leases 5. Revealing confidences to obtain advice about legal ethics 6. Using a client’s confidential information to protect the lawyer’s interests 7. Revealing confidences to comply with a court order or other law 8. Revealing confidences to prevent certain conflicts of interest C. Use or disclosure of confidential information for personal gain or to benefit another client Problem 4-7: An Investment Project D. Talking to clients about confidentiality Chapter 5: The Attorney-Client Privilege and the Work Product Doctrine A. Confidentiality and attorney-client privilege compared 1. Source of the privilege 2. Scope of the privilege 3. Methods of enforcing the privilege B. The elements of attorney-client privilege 1. Communication 2. Privileged persons 3. Communication in confidence 4. Communication for the purpose of seeking legal assistance C. Asserting the privilege D. Waiver of the privilege E. Exceptions to the privilege 1. The Sixth Amendment 2. Lawyer self-defense 3. Other revelations permitted or required by the ethics codes Problem 5-1: Murder for Hire 4. The crime-fraud exception Problem 5-2: The Payoff F. The death of the client 1. Introduction Problem 5-3: A Secret Confession 2. The suicide of Vincent Foster a. Factual background b. The Supreme Court evaluates the privilege claim Swidler & Berlin v. United States G. The attorney-client privilege for corporations H. The attorney-client privilege for government officials I. The work product doctrine Problem 5-4: Worldwide Bribery Chapter 6: Conflicts of Interest: Current Clients A. An introduction to conflicts of interest 1. What makes the study of conflicts difficult 2. How the conflicts chapters are organized 3. How the conflicts rules are organized B. General principles in evaluating concurrent conflicts 1. Direct adversity 2. Material limitation 3. Nonconsentable conflicts a. The lawyer’s reasonable belief b. Representation prohibited by law c. Suing one client on behalf of another client 4. Informed consent 5. Withdrawal and disqualification Problem 6-1: The Injured Passengers, Scene 1 6. Imputation of concurrent conflicts Problem 6-2: Food Poisoning C. Conflicts between current clients in litigation 1. Suing a current client Problem 6-3: I Thought You Were My Lawyer! 2. Cross-examining a current client 3. Representation of co-plaintiffs or co-defendants in civil litigation Problem 6-4: The Injured Passengers, Scene 2 4. Representing economic competitors in unrelated matters 5. Positional conflicts: Taking inconsistent legal positions in litigation Problem 6-5: Top Gun Chapter 7: Conflicts Involving Former and Prospective Clients A. Nature of conflicts between present and former clients B. Duties to former clients C. Distinguishing present and former clients Problem 7-1: Keeping in Touch Problem 7-2: A Better Client D. Evaluating successive conflicts 1. The same matter 2. Substantial relationship 3. Material adversity E. Addressing former client conflicts in practice F. Conflicts between the interests of a present client and a client who was represented by a lawyer’s former firm 1. Analyzing former firm conflicts 2. Using or revealing a former client’s confidences G. Imputation of former client conflicts to affiliated lawyers Problem 7-3: The Bid Protest Problem 7-4: A Brief Consultation Problem 7-5: The Fatal Shot H. Conflicts involving prospective clients Problem 7-6: The Secret Affair Chapter 8: Conflicts Issues in Particular Practice Settings A. Representing multiple parties who are not in litigation B. Representing organizations 1. Who is the client? Problem 8-1: My Client’s Subsidiary 2. Representing the entity and employees 3. Duty to protect confidences of employees 4. Responding to unlawful conduct by corporate officers and other employees 5. Entity lawyers on boards of directors Problem 8-2: “Don’t Rock the Boat” C. Representing co-defendants in criminal cases 1. Costs and benefits of joint representation of co-defendants 2. Conflicts issues and Sixth Amendment concerns in criminal defense Problem 8-3: Police Brutality, Scene 1 Problem 8-4: Police Brutality, Scene 2 Problem 8-5: Police Brutality, Scene 3 D. Representing co-defendants in civil cases E. Representing family members 1. Representing both spouses in a divorce 2. Representing family members in estate planning Florida Bar Opinion 95-4 (1997) Problem 8-6: Representing the McCarthys F. Representing insurance companies and insured persons G. Representing employers and immigrant employees H. Representing plaintiffs in class actions I. Representing parties to aggregate settlements of individual cases Chapter 9: Conflicts of Interest Between Lawyers and Clients A. Legal fees 1. Lawyer-client fee contracts a. Types of fee agreements b. Reasonable fees Matter of Fordham: When a fee may be considered excessive c. Communication about fee arrangements Problem 9-1: An Unreasonable Fee? d. Modification of fee agreements Problem 9-2: Rising Prices 2. Regulation of hourly billing and billing for expenses Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession Billing irregularities: A case study Lisa G. Lerman, Scenes from a Law Firm 3. Contingent fees a. In general b. Criminal and domestic relations cases 4. Forbidden and restricted fee and expense arrangements a. Buying legal claims b. Financial assistance to a client Problem 9-3: An Impoverished Client c. Publication rights d. Advance payment of fees and nonrefundable retainer fees 5. Fee disputes a. Prospective limitations of lawyers’ liability and settlement of claims against lawyers b. Fee arbitration c. Collection of fees d. Fees owed to a lawyer who withdraws or is fired before the matter is completed 6. Dividing fees with other firms or with nonlawyers a. Division of fees between lawyers not in the same firm b. Sharing fees with nonlawyers 7. Payment of fees by a third party B. Lawyer as custodian of client property and documents 1. Client trust accounts 2. Responsibility for client property a. Prompt delivery of funds or property b. Disputes about money or property in lawyer’s possession c. Lawyers’ responsibilities to clients’ creditors 3. Administering estates and trusts C. Conflicts with lawyers’ personal or business interests 1. In general 2. Business transactions between lawyer and client 3. Gifts from clients 4. Sexual relationships with clients 5. Intimate or family relationships with adverse lawyers 6. Imputation of lawyer-client conflicts to other lawyers in a firm Chapter 10: Conflicts Issues for Government Lawyers and Judges A. Regulation of government lawyers and those who lobby them 1. The law governing lobbying: An introduction 2. Conflict of interest and “revolving door” statutes B. Successive conflicts of former and present government lawyers 1. Conflicts of former government lawyers in private practice a. What is a “matter”? b. Personal and substantial participation c. Screening of former government lawyers d. Confidential government information 2. Conflicts of government lawyers who formerly worked outside of government Problem 10-1: The District Attorney 3. Conflicts of private lawyers who currently represent government agencies C. Conflicts involving judges, law clerks, arbitrators, and mediators 1. History of judicial ethics codes in the United States 2. Overview of the Model Code of Judicial Conduct 3. Impartiality and fairness; avoidance of bias, prejudice, and harassment 4. Ex parte communications and communications by a judge with third parties 5. Disqualification of judges Problem 10-2: The Judge’s Former Professor 6. Conflicts rules for former judges, law clerks, arbitrators, and mediators a. Personal and substantial participation b. Imputation c. Employment negotiation 7. Conflicts rules for lawyers currently acting as third party neutrals Chapter 11: Lawyers’ Duties to Courts A. Being a good person in an adversary system Stephen Gillers, Can a Good Lawyer Be a Bad Person? B. Investigation before filing a complaint Problem 11-1: Your Visit from Paula Jones C. Truth and falsity in litigation 1. The rules on candor to tribunals 2. Which rule applies when? A taxonomy of truth-telling problems in litigation 3. A lawyer’s duties if a client or witness intends to give false or misleading testimony a. When the lawyer knows that a criminal defendant intends to lie on the stand Nix v. Whiteside: No Sixth Amendment right to testify falsely b. The lawyer’s obligations under Rule 3.3 in civil and criminal matters Problem 11-2: Flight from Sudan, Scene 1 c. A lawyer’s duties if a client intends to mislead the court without lying Problem 11-3: Flight from Sudan, Scene 2 d. A lawyer’s duties if he knows that a client has lied to a tribunal e. Variations in state rules on candor to tribunals 4. False impressions created by lawyers during litigation How Simpson Lawyers Bamboozled a Jury Problem 11-4: The Drug Test Problem 11-5: The Body Double 5. Lawyers’ duties of truthfulness in preparing witnesses to provide evidence D. Concealment of physical evidence and documents 1. Duties of criminal defense lawyers with respect to evidence of crimes Problem 11-6: Child Pornography 2. Concealment of documents and other evidence in civil and criminal cases a. A limited obligation to reveal b. A lawyer’s duties in responding to discovery requests Ethics: Beyond the Rules Problem 11-7: The Damaging Documents E. The duty to disclose adverse legal authority F. Disclosures in ex parte proceedings G. Improper influences on judges and juries 1. Improper influences on judges a. Ex parte communication with judges b. Campaign contributions 2. Improper influences on juries a. Lawyers’ comments to the press Narrowing restrictions on trial publicity: The Gentile case Scott Brede, A Notable Case of Exceptionally Unsafe Sex b. Impeachment of truthful witnesses Harry I. Subin, The Criminal Defense Lawyer’s “Different Mission”: Reflections on the “Right” to Present a False Case c. Statements by lawyers during jury trials H. Agreements not to accept future cases I. Lawyers’ duties in nonadjudicative proceedings Chapter 12: Lawyers’ Duties to Adversaries and Third Persons A. Communications with lawyers and third persons 1. Deception of third persons a. The duty to avoid material false statements Problem 12-1: Emergency Food Stamps b. Lawyers’ duties of truthfulness in fact investigation The Beatles Club case Problem 12-2: Insurance Claims c. Lawyers’ duties of truthfulness in negotiation d. Lawyers’ duties upon receipt of inadvertently transmitted information, including metadata 2. Restrictions on contact with represented persons a. Contacts in person or by telephone The Messing case The Cronin case b. The use of social media to investigate adverse persons and others 3. Restrictions on contact with unrepresented persons Problem 12-3: The Complaining Witness 4. Respect for the rights of third persons Problem 12-4: The Break-In Note: Stolen documents as evidence B. Duties of prosecutors Ken Armstrong & Maurice Possley, Trial and Error, Part 1: Verdict: Dishonor 1. Undercover investigations Problem 12-5: The Prosecutor’s Masquerade 2. The basis for charging a suspect 3. A prosecutor’s duty to reveal exculpatory evidence The Duke lacrosse case 4. A prosecutor’s duty with respect to unreliable evidence 5. A prosecutor’s duty to avoid improper pretrial publicity 6. Enforcement of ethical rules against prosecutors Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously C. Conduct prejudicial to the administration of justice Problem 12-6: A Letter of Commendation D. Are lawyers really too zealous? Ted Schneyer, Moral Philosophy’s Standard Misconception of Legal Ethics Chapter 13: The Changing Landscape of Law Practice A. Unauthorized practice of law: Who can provide legal services 1. Prohibition of unauthorized practice of law by nonlawyers Problem 13-1: Special Education 2. Restrictions on multistate practice by lawyers 3. Programs allowing nonlawyers to provide some legal assistance a. Limited license legal technicians b. Courthouse navigators c. Legal document assistants 4. New providers of legal services B. Getting business: Advertising and solicitation 1. Advertising of legal services Bates v. State Bar of Arizona 2. Solicitation of clients Problem 13-2: Traffic Crimes C. Multidisciplinary practice D. Financing law practice 1. Litigation finance: Nonlawyer funding of lawsuits 2. Nonlawyer ownership of and investment in law firms E. Temporary and contract lawyers F. Outsourcing legal work to cut labor costs: Offshoring and onshoring G. Globalization of law practice Chapter 14: Access to Justice: The Lawyer’s Role A. The unmet need for legal services B. Sources of free legal services for those who cannot afford legal fees 1. Right to counsel for indigent litigants a. Criminal defendants b. Parties in civil and administrative proceedings 2. Civil legal aid a. Legal Services Corporation Problem 14-1: Restrictions on Legal Services b. Other civil legal services c. Supporting legal services for indigent people with interest on trust accounts 3. Fee-shifting statutes a. Fee waiver as a term of a settlement: Evans v. Jeff D b. Who is a “prevailing party” entitled to attorneys’ fees? 4. Conflicts in public interest litigation Problem 14-2: The Prisoners’ Dilemma C. Pro bono representation Problem 14-3: Mandatory Pro Bono Service D. Loan forgiveness and scholarships for public service lawyers E. A concluding problem Problem 14-4: The Future of the Legal Profession About the Authors Table of Cases Table of Rules, Restatements, Statutes, Bar Opinions, and Other Standards Index