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Call # KF306.A4 L47 2012
Author Lerman, Lisa G
Title Ethical problems in the practice of law / Lisa G. Lerman, Philip G. Schrag
Imprint New York : Wolters Kluwer Law & Business, c2012
Edition 3rd ed
Book Cover
LOCATION CALL NO. STATUS
 CASEBOOK RESERVE  KF306.A4 L47 2012    AVAILABLE
 CASEBOOK RESERVE  KF306.A4 L47 2012 c.2  AVAILABLE
 McDonough Display  Faculty Publication    NOT AVAILABLE
 SPEC COLL  Faculty Publication    SCRR USE ONLY

Details

Descript. xlv, 1011 p. : ill. ; 26 cm
Series Aspen coursebook series
Note Includes bibliographical references (p. 955-974) and index
Subject Legal ethics -- United States
Alt Author Schrag, Philip G., 1943-
OCLC # 758099179
Table of Contents
 Table of Problemsxxix
 Preface to the Third Edition for Teachers and Studentsxxxiii
 Acknowledgmentsxxxix
 Introduction1
A.Ethics, morals, and professionalism1
B.Some central themes in this book8
1.Conflicts of interest8
2.Truthfulness9
3.Lawyers' duties to clients versus their duties to the justice system10
4.Lawyers' personal and professional interests versus their fiduciary obligations11
5.Self-interest as a theme in regulation of lawyers12
6.Lawyers as employees: Institutional pressures on ethical judgments13
7.changing legal profession14
C.structure of this book15
D.rules quoted in this book: A note on sources17
E.Stylistic decisions19
pt. I REGULATION OF THE LEGAL PROFESSION21
ch. 1 Regulation of Lawyers23
A.Institutions that regulate lawyers24
1.highest state courts25
a.responsibility of "self-regulation"25
b.inherent powers doctrine28
2.State and local bar associations31
3.Lawyer disciplinary agencies32
4.American Bar Association32
5.American Law Institute34
6.Federal and state courts35
7.Legislatures37
8.Administrative agencies38
9.Prosecutors39
10.Malpractice insurers41
11.Law firms and other employers41
12.Clients42
B.State ethics codes45
C.Admission to practice52
1.short history of bar admission52
2.Contemporary bar admission requirements53
3.bar examination54
Problem 1-1 New Country55
4.character and fitness inquiry56
a.Criteria for evaluation57
b.Filling out the character questionnaire64
Problem 1-2 Weed67
c.Mental health of applicants68
d.Misconduct during law school71
 In re Mustafa71
 California Bar Journal74
e.Law school discipline: A preliminary screening process76
Problem 1-3 Doctored Resume77
ch. 2 Lawyer Liability79
A.Professional discipline81
1.History and process of lawyer discipline81
2.Grounds for discipline88
Problem 2-1 "I'm Not Driving"97
3.Reporting misconduct by other lawyers100
a.duty to report misconduct101
 Daryl van Duch, Best Snitches: Land of Lincoln Leads the Nation in Attorneys Turning in Their Peers105
Problem 2-2 Exculpatory Evidence110
b.Lawyers' responsibility for ethical misconduct by colleagues and superiors111
Problem 2-3 Little Hearing117
c.Legal protections for subordinate lawyers118
 Andrea Sachs, Whistleblower Wins Appeal: N.Y. Court Rules Attorney Can't Be Fired for Reporting Dishonest Conduct120
 Jacobson case: A contrary result121
 strange tale of Scott McKay Wolas122
 Kelly v. Hunton & Williams125
B.Civil liability of lawyers135
1.Legal malpractice135
2.Malpractice insurance140
3.Other civil liability of lawyers143
a.Liability for breach of contract143
b.Liability for violation of regulatory statutes143
4.Disqualification for conflicts of interest144
C.Criminal liability of lawyers144
D.Client protection funds148
E.Summing up: The law governing lawyers154
pt. II DUTIES OF LAWYERS157
ch. 3 Duty to Protect Client Confidences159
A.basic principle of confidentiality160
1.Protection of "information relating to the representation of a client"160
Problem 3-1 Your Dinner with Anna, Scene 1163
Problem 3-2 Your Dinner with Anna, Scene 2165
2.Protection of information if there is a reasonable prospect of harm to a client's interests167
3.bottom line on informal conversations168
4.Additional cautions about protecting client confidences169
B.Exceptions to the duty to protect confidences170
1.Revelation of past criminal conduct173
 missing persons case: The defense of Robert Garrow174
Problem 3-3 Missing Persons, Scene 1174
Problem 3-4 Missing Persons, Scene 2179
 real case180
 People v. Belge181
 People v. Belge (appeal)183
Problem 3-5 Missing Persons, Scene 3184
2.risk of future injury or death185
 Spaulding v. Zimmerman: Revealing confidences to prevent injury or death188
 Spaulding v. Zimmerman189
Problem 3-6 Rat Poison198
Problem 3-7 Your Dinner with Anna, Scene 3199
3.Client frauds and crimes that cause financial harm201
a.Lawyers prohibited from advising or assisting clients' crimes and frauds201
Problem 3-8 Dying Mother205
b.Ethics rules allowing revelation of client crimes or frauds to prevent, mitigate, or remedy harm to others207
c.Enron and the Sarbanes-Oxley Act211
 Recent developments in the implementation of Sarbanes-Oxley213
Problem 3-9 Reese's Leases218
4.Revealing confidences to obtain advice about legal ethics220
5.Using a client's confidential information to protect the lawyer's interests221
6.Revealing confidences to comply with a court order or other law223
C.Use or disclosure of confidential information for personal gain or to benefit another client225
Problem 3-10 Investment Project226
D.Talking to clients about confidentiality227
ch. 4 Attorney-Client Privilege and the Work Product Doctrine229
A.Confidentiality and attorney-client privilege compared231
1.Ethics law versus evidence law231
2.Difference in scope233
3.Different methods of enforcement233
4.When attorney-client privilege is invoked234
5.Why study a rule of evidence in a professional responsibility course?235
6.Source of the privilege235
B.elements of attorney-client privilege236
1.Communication236
2.Privileged persons236
3.Communication in confidence237
4.Communication for the purpose of seeking legal assistance238
C.Client identity242
D.Waiver243
1.Waiver by the client243
2.Waiver by the lawyer245
3.Waiver by putting privileged communication into issue246
4.Waiver as to a conversation by disclosure of part of it247
5.Compliance with court orders247
Problem 4-1 Murder for Hire247
E.crime-fraud exception249
1.No privilege if a client seeks assistance with a crime or fraud249
Problem 4-2 Fatal Bus Crash253
2.Procedure for challenging a claim of privilege255
3.potential importance of privilege claims in litigation255
F.death of the client256
1.Introduction256
Problem 4-3 Secret Confession257
2.suicide of Vincent Foster258
a.Factual background258
b.Supreme Court evaluates the privilege claim259
 Swidler & Berlin v. United States259
G.work product doctrine261
1.Work product prepared in anticipation of litigation261
2.Origins of the work product rule262
3.Materials not created or collected in anticipation of litigation262
4.qualified protection263
5.Protection of lawyer's "mental impressions"264
6.Protection of work product, not underlying information264
7.Expert witnesses264
H.privilege for corporations265
1.scope of the privilege for corporations265
 Upjohn Co. v. United States265
2.Governmental requests for waiver of privilege271
 Sarah Helene Duggin, The McNulty Memorandum, the KPMG Decision and Corporate Cooperation: Individual Rights and Legal Ethics272
Problem 4-4 Worldwide Bribery276
ch. 5 Relationships Between Lawyers and Clients279
A.Formation of the lawyer-client relationship280
1.Choosing clients280
2.Offering advice as the basis for a lawyer-client relationship285
 Togstad v. Vesely, Otto, Miller & Keefe286
B.Lawyers' responsibilities as agents293
1.Express and implied authority294
2.Apparent authority294
3.Authority to settle litigation295
C.Lawyers' duties of competence, honesty, communication, and diligence296
1.Competence297
Problem 5-1 Washing Machine301
2.Competence in criminal cases302
 Strickland v. Washington303
3.Diligence312
4.Candor and communication313
a.Is it ever okay to lie?313
b.Lying versus deception: Is there a moral distinction?315
c.Truth versus truthfulness316
d.Honesty and communication under the ethics rules316
e.Civil liability for dishonesty to clients319
Problem 5-2 Lying to Clients320
5.Candor in counseling322
Problem 5-3 Torture323
6.Duties imposed by contract in addition to those imposed by the ethics codes326
7.Contractual reduction of a lawyer's duties: Client waiver of certain lawyer duties and "unbundled legal services"327
8.Contractual modification of a lawyer's duties: Collaborative law practice332
D.Who calls the shots?334
1.competent adult client334
 Jones v. Barnes338
2.Clients with diminished capacity346
a.Clients who may have mental disabilities347
Problem 5-4 Package Bomber348
 Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client354
Problem 5-5 Vinyl Windows357
Problem 5-6 Tightening the Knot359
b.Juveniles360
 Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children360
 ABA, Standards of Practice for Lawyers Representing a Child in Abuse and Neglect Cases (1996)363
 Frances Gall Hill, Clinical Education and the "Best Interest" Representation of Children in Custody Disputes: Challenges and Opportunities in Lawyering and Pedagogy364
Problem 5-7 Foster Child366
E.Terminating a lawyer-client relationship370
1.Duties to the client at the conclusion of the relationship370
Problem 5-8 Candid Notes372
2.Grounds for termination before the work is completed374
a.When the client fires the lawyer374
b.When continued representation would involve unethical conduct374
c.When the lawyer wants to terminate the relationship375
d.Matters in litigation375
e.When the client stops paying the fee376
f.When the case imposes an unreasonable financial burden on the lawyer377
g.When the client will not cooperate377
ch. 6 Conflicts of Interest: Current Clients379
A.introduction to conflicts of interest380
1.Why the study of conflicts is difficult383
2.How the conflicts chapters are organized385
3.How the conflicts rules are organized386
B.General principles in evaluating concurrent conflicts388
1.Rule 1.7388
a.Direct adversity390
b.Material limitation391
2.How to evaluate conflicts392
3.Nonconsentable conflicts392
a.lawyer's reasonable belief393
b.Representation prohibited by law394
c.Suing one client on behalf of another client394
4.Informed consent395
5.Withdrawal and disqualification400
6.Imputation of concurrent conflicts401
Problem 6-1 Injured Passengers, Scene 1403
C.Conflicts between current clients in litigation404
1.Suing a current client404
Problem 6-2 I thought you were my lawyer!406
2.Cross-examining a current client407
3.Representation of co-plaintiffs or co-defendants in civil litigation408
Problem 6-3 Injured Passengers, Scene 2411
4.Representing economic competitors in unrelated matters412
5.Conflicts in public interest litigation412
Problem 6-4 Prisoners' Dilemma413
6.Positional conflicts: Taking inconsistent legal positions in litigation414
Problem 6-5 Top Gun416
D.Conflicts involving prospective clients418
Problem 6-6 Secret Affair420
ch. 7 Current Client Conflicts in Particular Practice Settings423
A.Representing both parties to a transaction425
B.Representing organizations428
1.Who is the client?431
2.Representing the entity and employees433
3.Duty to protect confidences of employees434
4.Responding to unlawful conduct by corporate officers and other employees435
5.Entity lawyers on boards of directors436
Problem 7-1 Motion to Disqualify437
Problem 7-2 My Client's Subsidiary438
C.Representing criminal co-defendants439
1.Costs and benefits of joint representation of co-defendants439
2.Ethics rules and the Sixth Amendment441
Problem 7-3 Police Brutality, Scene 1447
Problem 7-4 Police Brutality, Scene 2448
Problem 7-5 Police Brutality, Scene 3449
D.Representing family members450
1.Representing both spouses in a divorce450
2.Representing family members in estate planning451
 Florida Bar Opinion 95-4 (1997)452
Problem 7-6 Representing the McCarthys454
E.Representing insurance companies and insured persons456
Problem 7-7 Two Masters460
F.Representing employers and immigrant employees461
G.Representing plaintiffs in class actions463
H.Representing parties to aggregate settlements of individual cases466
ch. 8 Conflicts Involving Former Clients471
A.Nature of conflicts between present and former clients472
B.Duties to former clients474
C.Distinguishing present and former clients476
D.Evaluating successive conflicts480
1.same matter481
2.Substantial relationship481
3.Material adversity492
Problem 8-1 Keeping in Touch494
E.Addressing former client conflicts in practice494
Problem 8-2 District Attorney496
F.Representing the competitor of a former client497
G.Conflicts between the interests of a present client and a client who was represented by a lawyer's former firm499
1.Analyzing former firm conflicts500
2.Using or revealing a former client's confidences501
Problem 8-3 Dysfunctional Family Business502
H.Imputation of former client conflicts to affiliated lawyers505
Problem 8-4 Firm's New Partner515
Problem 8-5 Fatal Shot517
ch. 9 Conflicts Between Lawyers and Clients521
A.Legal fees524
1.Lawyer-client fee contracts524
a.Types of fee agreements524
b.Reasonable fees525
 Brobeck, Phleger & Harrison v. Telex Corp.530
 In the Matter of Fordham531
c.Communication about fee arrangements538
Problem 9-1 Unreasonable Fee?541
d.Modification of fee agreements541
Problem 9-2 Rising Prices542
2.Regulation of hourly billing and billing for expenses543
 Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession545
 Lisa G. Lerman, Scenes from a Law Firm559
3.Contingent fees566
a.In general566
b.Criminal and domestic relations cases571
4.Forbidden and restricted fee and expense arrangements573
a.Buying legal claims573
b.Financial assistance to a client574
Problem 9-3 Impoverished Client575
c.Publication rights576
d.Advance payment of fees and nonrefundable retainer fees576
5.Fee disputes578
a.Prospective limitations of lawyers' liability and settlement of claims against lawyers578
b.Fee arbitration581
c.Collection of fees582
d.Fees owed to a lawyer who withdraws or is fired before the matter is completed584
6.Dividing fees with other firms or with nonlawyers585
a.Division of fees between lawyers not in the same firm585
b.Sharing fees with nonlawyers587
7.Payment of fees by a third party588
B.Lawyer as custodian of client property and documents589
1.Client trust accounts589
2.Responsibility for client property591
a.Prompt delivery of funds or property591
b.Disputes about money or property in lawyer's possession592
c.Lawyers' responsibilities to clients' creditors592
3.Administering estates and trusts593
C.Conflicts with lawyers' personal or business interests593
1.In general593
2.Business transactions between lawyer and client594
Problem 9-4 Starting a Business599
3.Gifts from clients600
4.Sexual relationships with clients601
5.Intimate or family relationships with adverse lawyers603
6.Imputation of lawyer-client conflicts to other lawyers in a firm604
a.Financial interest conflicts604
b.General rule on imputation of conflicts with a lawyer's interests604
ch. 10 Conflicts Issues for Government Lawyers and Judges607
A.Successive conflicts of former and present government lawyers607
1.Conflicts of former government lawyers in private practice609
a.What is a "matter"?610
b.Personal and substantial participation612
c.Screening of former government lawyers613
d.Confidential government information613
Problem 10-1 Lawyer for Libya615
2.Conflicts of government lawyers who formerly worked in private practice620
B.Conflicts involving judges, arbitrators, and mediators621
1.History of judicial ethics codes in the United States622
2.Overview of the Model Code of Judicial Conduct624
3.Impartiality and fairness; avoidance of bias, prejudice, and harassment626
4.Ex parte communications629
5.Disqualification of judges630
Problem 10-2 Trip to Monte Carlo636
Problem 10-3 Judge's Former Professor638
6.Conflicts rules for former judges, law clerks, arbitrators, and mediators640
a.Personal and substantial participation640
b.Imputation641
c.Employment negotiation641
ch. 11 Lawyers' Duties to Courts643
A.Being a good person in an adversary system644
 Stephen Gillers, Can a Good Lawyer Be a Bad Person?646
B.Investigation before filing a complaint647
Problem 11-1 Your Visit from Paula Jones654
C.Truth and falsity in litigation655
1.rules on candor to tribunals655
2.Which rule applies when? A taxonomy of truth-telling problems in litigation657
3.lawyer's duties if a client or witness intends to give false testimony658
a.When the lawyer believes that a criminal defendant intends to lie on the stand658
 Nix v. Whiteside658
b.lawyer's "knowledge" of a client's intent to give false testimony664
Problem 11-2 Flight from Sudan, Scene 1665
c.lawyer's duties if a client intends to mislead the court without lying668
Problem 11-3 Flight from Sudan, Scene 2671
d.Variations in state rules on candor to tribunals672
4.False impressions created by lawyers during litigation675
 How Simpson Lawyers Bamboozled a Jury676
Problem 11-4 Drug Test677
Problem 11-5 Body Double678
5.Lawyers' duties of truthfulness in preparing witnesses to testify679
Problem 11-6 Refreshing Recollection682
D.Concealment of physical evidence and documents684
1.Duties of criminal defense lawyers with respect to evidence of crimes684
Problem 11-7 Child Pornography691
2.Concealment of documents and other evidence in civil and criminal cases692
a.more limited obligation to reveal692
b.lawyer's duties in responding to discovery requests694
 Wayne D. Brazil, Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery695
 Ethics: Beyond the Rules (symposium)697
Problem 11-8 Damaging Documents700
E.duty to disclose adverse legal authority703
F.Disclosures in ex parte proceedings705
G.Improper influences on judges and juries707
1.Improper influences on judges707
a.Ex parte communication with judges707
b.Campaign contributions709
2.Improper influences on juries710
a.Lawyers' comments to the press710
 Gentile case710
Problem 11-9 Letter to the Editor714
 Scott Brede, A Notable Case of Exceptionally Unsafe Sex715
b.Impeachment of truthful witnesses716
 Harry I. Subin, The Criminal Defense Lawyer's "Different Mission": Reflections on the "Right" to Present a False Case717
c.Statements by lawyers during jury trials719
H.Lawyers' duties in nonadjudicative proceedings725
ch. 12 Lawyers' Duties to Adversaries and Third Persons729
A.Communications with lawyers and third persons730
1.Deception of third persons730
a.duty to avoid material false statements730
Problem 12-1 Emergency Food Stamps731
b.Lawyers' duties of truthfulness in fact investigation734
 Apple Corps, Ltd. v. International Collectors Society735
 Gatti case736
 In re Gatti737
c.Lawyers' duties of truthfulness in negotiation741
 Carrie Menkel-Meadow, Ethics, Morality and Professional Responsibility in Negotiation742
d.Receipt of inadvertently transmitted information, including metadata744
e.Obligation of disclosure to third persons746
2.Restrictions on contact with represented persons747
 Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College751
3.Restrictions on contact with unrepresented persons758
Problem 12-2 Complaining Witness762
Problem 12-3 Break-In765
B.Duties of prosecutors766
 Ken Armstrong & Maurice Possley, Trial and Error, Part I: Verdict: Dishonor767
1.Undercover investigations769
Problem 12-4 Prosecutor's Masquerade772
2.Required investigation by prosecutors before charges are filed773
3.Concealment of exculpatory evidence774
4.Unreliable evidence777
5.Enforcement779
 Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously779
C.Conduct prejudicial to the administration of justice781
Problem 12-5 Suggested Boycott783
D.Are lawyers really too zealous?784
 Ted Schneyer, Moral Philosophy's Standard Misconception of Legal Ethics785
ch. 13 Provision of Legal Services789
A.unmet need for legal services790
B.Sources of free legal services for those who cannot afford legal fees796
1.Right to counsel for indigent litigants796
a.Criminal defendants796
Problem 13-1 Indigent Prisoner800
 Richard C. Dieter, With Justice for Few: The Growing Crisis in Death Penalty Representation802
b.Parties in civil and administrative proceedings804
2.Civil legal aid808
a.Legal Services Corporation808
 Alan W. Houseman & Linda E. Perle, Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States808
Problem 13-2 Restrictions on Legal Services816
b.Other civil legal services817
c.IOLTA controversy818
3.Fee-shifting statutes819
a.Fee waiver as a term of a settlement820
b.Who is a "prevailing party" entitled to attorneys' fees?822
 Margaret Graham Tebo, Fee-Shifting Fallout823
4.Pro bono representation824
 Judith L. Maute, Changing Conceptions of Lawyers' Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations832
Problem 13-3 Mandatory Pro Bono Service835
5.Loan forgiveness and scholarships for public service lawyers836
C.Restrictions on legal services by nonlawyers839
 David C. Vladeck, Statement Before the ABA Commission on Non-lawyer Practice841
Problem 13-4 Special Education846
Problem 13-5 Service to the Poor and Middle Class848
pt. III PRACTICE OF LAW849
ch. 14 Law Practice in the United States851
A.Origins and development of the U.S. legal profession852
1.Pre-revolutionary America852
2.nineteenth century853
3.Growth of large firms in the twentieth century855
B.short history of American legal education855
C.Types of legal practice857
1.Large firms861
 Michael Asimow, Embodiment of Evil: Law Firms in the Movies863
 Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession866
Problem 14-1 Reforming Partner873
2.Small firms873
a.Salaries and attrition873
b.Setting one's own schedule874
c.Bringing in business877
d.Promotion in small firms877
e.Other features of small-firm life877
f.Urban versus rural practice878
g.Gender patterns in small firms878
h.future of small firms879
i.Small firms and the Internet879
3.Nontraditional forms of law firm employment880
4.Government and nonprofit organizations880
D.How to find a private employer with high ethical standards and humane working conditions882
ch. 15 Changing Profession889
A.Diversity and discrimination891
1.Women893
Problem 15-1 Job Interview898
2.People of color899
3.Gay, lesbian, bisexual, and transgender lawyers903
4.Lawyers with disabilities905
B.Advertising and solicitation906
1.Advertising906
 Bates v. State Bar of Arizona907
2.Solicitation914
Problem 15-2 Do You Need a Lawyer?917
C.Geographic and interdisciplinary expansion of law practice918
1.Multijurisdictional practice919
 Stephen Gillers, It's an MJP World: Model Rules Revisions Open the Door for Lawyers to Work Outside Their Home Jurisdictions921
2.Multidisciplinary practice925
 Notes on multidisciplinary practice and nonlawyer ownership of law firms929
D.effects of economic recession931
1.Temporary and contract lawyers934
2.Offshoring and onshoring936
E.Future structural changes in the legal profession939
1.Large firms940
2.Small firms941
3.Less need for lawyers941
4.Globalization of law practice944
5.Investment in law firms and lawsuits by persons who are not lawyers944
 Appendix: Research on Ethics Law949
 About the Authors953
 Table of Articles, Books, and Reports955
 Table of Cases975
 Table of Rules, Restatements, Statutes, Bar Opinions, and Other Standards981
 Index993