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1、TABLE OF CONTENTSETHICS IN THE LEGAL PROFESSION1CHAPTER ONE - PREFACE1DEFINITION OF “ETHICS”1RULES OF PROFESSIONAL CONDUCT2TYPES OF ETHICS OPINIONS2DETERMINE THE OPTIONS3THE LAWYERS RESPONSIBILITIES3THE BAR ASSOCIATION4ABA REPORT OF COMMITTEE ON CODE OF PROFESSIONAL ETHICS5Reasons for the Code7ETHIC
2、AL THEORIES8DETERMINING ACTION IN LIGHT OF THE CONSEQUENCES OF THE ACT9Acting only from Desire9ETHICS OF VIRTUE10Determining the Proper Action10DEALING WITH RIGHT OR WRONG11Personal Responsibility11SENSITIVE JUDGEMENT12The Morals of the Lawyer13INTEGRITY13Justification14BELIEFS LEARNED AS A CHILD15I
3、S THIS GOOD FOR ME?15HOW DOES THE ACTION AFFECT SOCIETY?16IS IT FAIR, JUST AND PROPER?16IS THERE A RIGHTS VIOLATION INVOLVED?16HAS THERE BEEN A PROMISE MADE?17IGNORANCE IS BLISS?18OR GREED?18CHARACTER19QUANDARIES20TRYING TO RESOLVE DILEMMAS20Collect pertinent information20Discover all of the players
4、21Determine the Options21Estimate the Effect of the Options21ETHICAL BEHAVIOR21Moral Behavior22EQUITY23CHAPTER 1 STUDY QUESTIONS24CHAPTER TWO ADVERSARY THEORUM26OBJECTIONS TO THE ADVERSARIAL SYSTEM27CONFLICTS BETWEEN CLIENT OBLIGATIONS AND OBLIGATIONS TO OTHERS28LEGAL FICTION29ZEALOUS ADVOCACY - REP
5、RESENTING A GUILTY PARTY30SANCTIONS AGAINST ABUSE OF THE ADVERSARY SYSTEM34CONFIDENTIALITY35Authorized disclosure37Disclosure adverse to client37Withdrawal38Waivers of Privilege38THE CRIME-FRAUD EXCEPTION39PRECEDENCE OF PROTECTING THE GUILTY OVER CONVICTING THE GUILTY40CHAPTER 2 STUDY QUESTIONS43CHA
6、PTER THREE DISCOVERY & ATTORNEY-CLIENT RELATIONS45DISCOVERY45LEGAL TACTICS USED DURING DISCOVERY47BILLABLE HOURS49Division of fee51Disputes over fees51Referral fees and practices51ATTORNEY-CLIENT RELATIONSHIP51FOR ORGANIZATIONAL CLIENTS51ABA MODEL RULE 1.13(D)52UPJOHN v. UNITED STATES53IF A CORPORAT
7、E CLIENT REFUSES TO FOLLOW LEGAL ADVICE58CHAPTER 3 STUDY QUESTIONS58CHAPTER FOUR - WHISTLE-BLOWERS AND PROFESSIONAL MISCONDUCT61WHISTLE-BLOWERS61AMBULANCE CHASERS AND OTHER PERSONAL INJURY LAWYERS63AS BAD AS AMBULANCE-CHASERS -64INSURANCE LAWYERS66NOW APPEARING BEFORE THE JURY -67BEHAVIOR OF TRIAL L
8、AWYERS68RACISM69LAWYERS AND LIES69THE KODAK-BERKEY CASE71Postmortem72WRONGFUL OBEDIENCE74ADVISING A CLIENT OR ASSISTING IN A FRAUD75THE SAVINGS AND LOAN SCANDAL76CAN LYING BE JUSTIFIED BECAUSE JUSTICE IS BEING SERVED?77CHAPTER 4 STUDY QUESTIONS79CHAPTER FIVE CORPORATION LAW & CLASS ACTION SUITS81COR
9、PORATE WARFARE81JUDGES DISCRETION IN PROTECTED INFORMATION84THE PROZAK CASE85CLASS ACTION SUITS88DETERMINATION OF WHOM IS THE CLIENT?89EQUITABLE RELIEF89MULTIPLE LAWSUITS ON THE SAME ACTION89RIGHTS OF THE INDIVIDUAL CLASS ACTION MEMBER90CLASS ACTION LAWSUIT SETTLEMENTS90MASS INJURY CASES91DEFENDING
10、(?) TRIAL LAWYERS93CHAPTER 5 STUDY QUESTIONS97CHAPTER SIX PRO BONO WORK, TAX PRACTICE & POT POURRI100PRO-BONO WORK100TAX PRACTICE100ACCURACY-RELATED VIOLATIONS100PENALTIES FOR PREPARERS OF TAX RETURNS101SANCTIONS101GOOD FAITH103CHANCE OF AUDIT103REASONABLE BASIS OR REASONABLE POSSIBILITY OF SUCCESS1
11、03TAX RETURNS NOT ADVERSARIAL PROCEEDINGS104TAX AVOIDANCE104ETHICS IN TAX AVOIDANCE DEVICES105REPORTING OF MISDEED BY ANOTHER ATTORNEY105GIVING ADVICE OR ACTIVE PARTICIPANT106ETHICS RULES106Comment107LIMITS OF CONFIDENTIALITY107Withdrawal108PUBLIC PERCEPTION AND SUMMARY108CHAPTER 5 STUDY QUESTIONS11
12、1BIBLIOGRAPHY AND REFERENCES114115ETHICS IN THE LEGAL PROFESSIONCHAPTER ONE - PREFACEDEFINITION OF “ETHICS”(Webster says) Ethic(s) is the “discipline dealing with what is good and bad and with moral duty and obligation.” “A set of moral principles or values, the principles of conduct governing an in
13、dividual or a group.” “Ethical” is defined as “of or relating to ethics, and conforming to accepted professional standards of conduct.”F The law sets minimum standards, whereas ethical behavior is the highest standard.From the strictly legal point of view, “ethics” as it relates to the legal profess
14、ion can be compared to a handful of Jell-O. In the legal profession, ethics is part of the professional responsibility of the attorneys, which also in includes statutes, case law, court rules and articles. When one attempts to determine the ethical obligations for himself or others in the law firm,
15、the rules of conduct and ethics opinions which interpret these rules as they refer to the applicable jurisdiction either state or federal- must be used. There appears to be no other profession that is so aware of ethical conduct as is the legal profession and there seems to be no other profession th
16、at is so often accused of lacking ethics with the possible exception of used-car salesmen. Ethical questions can now be resolved nearly instantaneously through the miracle of the Internet. Of course, there are volumes and volumes of texts on legal ethics available to the interested scholar, many of
17、which are well worn with voluminous notations in the margins. You will note that the first Chapter discusses “Ethics” as a concept that can be applied to the individual or to a business, and not specifically the legal profession. It is well understood that the ethical problems of the legal professio
18、n are unique and the remaining chapters discuss only those unique problems. In many of the important ethical dilemmas, there may not be only one answer the legal profession in particular has this problem. Therefore, there are not always one specific answer to a legal ethical situation discussed in t
19、his text, as there may be differences between the courts, the American Bar Association Model Code of Ethics, and those ethical Rules within a particular jurisdiction. When possible, all sides will be explored as much as is possible within the constraints of this text.The legal profession is comprise
20、d of those who offer differing opinions on nearly every subject as this is the raison dtre of lawyers. What would appear to be a simple, straightforward situation for laypersons and other professionals would generally consist of a wide variety of opinions from lawyers (and courts). Therefore, it is
21、impossible to provide a textbook that covers all possible ethical responses to the many legal problems of today. The only recourse is to simply discuss the basics of ethics and how they apply broadly to the legal profession. You will also note that this text is gender-neutral inasmuch as personal no
22、uns and pronouns are in the male gender as it is much easier and less confusing than to use “his/her,” “she/he,” “himself/herself,” etc. Incidentally, the history of the profession shows that at one time influential attorneys and legal scholars publicly declared that women could not and should not f
23、unction as lawyers. There are few, if any, professions that have come so far in recognizing the ability of women to function very well in their chosen profession.Also, it should be noted that the terms “lawyer” and “attorney” are used interchangeably in this text, except “attorney” is generally used
24、 when a lawyer is specifically designated to represent an individual in a particular matter.RULES OF PROFESSIONAL CONDUCTEvery jurisdiction that admits lawyers to practice maintains ethic rules for these lawyers. Many states have rules that are based upon the American Bar Association Model Rules of
25、Professional Conduct (often quoted in this text) but since these are “model” rules, the rules of the particular jurisdiction will always govern. State rules of professional conduct can be located at various places, such as in a states rules of court or its annotated states. Through the Internet, the
26、se rules of professional conduct can be obtained through Lexis, Westlaw, court and bar association websites, and sites with links to states rules include the Association of Professional Responsibility Lawyers ( Cornell Law School Legal Information Institute (http:/www.law.cornell.edu/ethics/listing.
27、html), and the American Bar Association Center for Professional Responsibility (http:/www.abanet.org/cpr/links.html#States). State supreme courts publish cases disciplining lawyers for misconduct; civil cases and criminal cases address ethics issues. These can be located through the West Digest Syst
28、em, and case laws regarding ethics can be found through Westlaw, Lexis, Lois law () and versus law (http:/www.fcsl.edu/Library/versuslaw.htm)TYPES OF ETHICS OPINIONSEthics opinions interpret and apply the rules of conduct to specific situations, which are issued by a state Supreme Court for instance
29、, but more generally by a committee of a state or local bar organizations. Some of these opinions are advisory only and do not have the force of law, but are still considered persuasive authority. Some opinions are binding, particularly if issued by state supreme courts.Generally, the rules are both
30、 imperatives, as indicated by the verbs “shall” and “shall not” and are used to define proper conduct within the parameters of professional discipline. Others use permissive verbs, such as “may,” or “should,” which indicate that the lawyer has professional discretion. If the rule is permissive, then
31、 there should be no disciplinary action if an attorney decides to act, or not to act, within the bounds of this discretion. In a study of ethics, those rules that are permissive are normally those that are of interest. As later discussed, ethical situations arise in most cases, where there is a dile
32、mma. If a rule were imperative, then there would usually be no dilemma. This is not to say that there cannot be a quandary in respect to imperatives indeed, some of the more interesting ethical situations arise when there is a flagrant misuse of ethical standards regarding a “shall not” type of rule
33、. But for purposes of this text, permissive rules or situations are more applicable to the study of ethics.F A quandary or dilemma occurs when in a certain situation, the person is not sure as to what to do, as there is good reasons for the action and good reasons against it.Conflicting responsibili
34、ties often arise in the practice of law and ethical problems are frequent because of the conflict between a lawyers responsibilities to a client and the attorneys own personal honor and any perceived obligations to society and the legal profession. These are the most common and the most trying of et
35、hical problems, and are most frequently addressed in the Rules of Professional Conduct (or similar rules).DETERMINE THE OPTIONSSome ethics “consultants” maintain that since a dilemma (or quandary) must have at least two options, in order to determine the proper option, a third option is necessary. T
36、he reasoning seems to be that if one has not spent enough time and thought to the problem without coming up with at least a third option, then they simply havent thought enough about the problem. Practically speaking, F in order to solve a dilemma, there MUST be another choice, other than just two.
37、THE LAWYERS RESPONSIBILITIESA good place to start this discussion is by quoting the first line of the above-mentioned Rules of Professional Conduct, “Preamble: A Lawyers Responsibilities:”F A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special r
38、esponsibility for the quality of justice.Since lawyers are officers of the court, they are responsible to the judiciary for their professional activities and therefore, lawyers are granted powers of self-government. This has been criticized by lay persons as granting too much power to the legal prof
39、ession, but in actual practice, any abuse of the system is challenged more readily when members of the profession are not dependent upon the other branches of government (executive and legislative) for the right to practice their profession. In addition to the rules, a lawyer is guided by his consci
40、ence and by the approval of his professional peers, as is often stated in various “rules.” While everyone would agree to this simplistic statement, it must also be recognized that one persons conscience is another persons dare and in many cases, who is to say what is “right.” If everyones conscience
41、 were alike, there would not be the need for many lawyers. And in respect to “peers,” it often appears that the most highly regarded, and generally the highest-paid, attorneys dont really seem to “give a hoot” about what others think. The general public accuses attorneys of many things, but usually
42、being a “lemming” is not one of those things. If there are indeed at least two (or more) sides to nearly every story, and the law is not clear, or is clearly unfair, in the situation, the deciding factor must then be the most ethical. And for the law practitioner, it should be remembered:F When ethi
43、cs are discarded, those affected are generally those who will suffer the most and who can ill afford the consequences.THE BAR ASSOCIATIONBar associations were formed during colonial times, but faded away with the exodus of the Tories. They were revitalized in the late 19th century because of a varie
44、ty of reasons.It was (and still is) believed that public service can be developed and maintained only through organizations. High educational standards that can assure high standards for a profession can be obtained only through such an organization, and only such organizations can create and mainta
45、in high standards of ethical conduct with clients and with the courts. The general public has a substantial interest in such an organization and their ability to administer justice, particularly in fact of every-changing and complex society.Lawyers were among the most individualistic members of soci
46、ety after the American Revolution, but gradually, starting in the most populous areas, bar associations were formed for social and/or disciplinary reasons and took on the appearance of a “guild.” In 1870, a group of the best known and highest-regarded lawyers in New York City formed the Association
47、of the Bar of the City of New York, principally to fight the Tweed organization. Four years later in Chicago, because of the activities of a number of unlicensed legal practitioners, the Chicago Bar Association was formed. By 1925, all the states and territories had Bar Associations, however most of them had been formed for social purposes which continued until the 1920s. For some 50 years after the associations were formed, it was a given that the individual lawyer had neither the right nor the duty to join a bar association as membership was
