Professional Responsibility : Problems and Materials

by ;
Edition: 9th
Format: Hardcover
Pub. Date: 2006-05-30
Publisher(s): West Group
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Summary

Continuing the tradition that has made it a leader in its field, Problems on Professional Responsibility uses problems to provide an overview of lawyers' professional responsibility. One of the most rapidly changing fields in American law, professional responsibility sees new issues, rules and cases each year, all of which are covered in this book. The Ninth Edition covers the American Bar Association's Model Rules of Professional Conduct, which were extensively rewritten in 2002; the American Law Institute's Restatement Third, The Law Governing Lawyers; and issues raised by federal agencies that play an important role in determining lawyer standards. Other changes to this edition include more citing authorities; fewer black-letter questions and issues in each problem to allow more time for discussion and questions; and the integration of readings into discussion materials.

Table of Contents

Preface v
Table of Cases
xvii
Table of Statutes
xxxix
Table of Authorities
li
The Legal Profession: Background and Fundamental Issues
1(30)
Introduction
1(1)
Development of the American Legal Profession
2(9)
Richard B. Morris, The Legal Profession in America on the Eve of the Revolution, in Harry W. Jones, Ed., Political Separation and Legal Continuity
4(3)
Robert Stevens, Democracy and the Legal Profession: Cautionary Notes
7(4)
The Development of Standards of Professional Conduct
11(3)
Some Contributions From Moral Philosophy to the Study of Legal Ethics
14(9)
The Ethics of Duty versus the Ethics of Aspiration
14(1)
Lon Fuller, The Morality of Law
14(2)
Moral People versus Moral Actions
16(2)
Role Ethics versus Common Ethical Standards
18(1)
Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues
18(1)
Gerald Postema, Moral Responsibility in Professional Ethics
19(1)
Consequential versus Deontological Standards
20(1)
The Ethic of Care
21(1)
Personal versus Social Ethics
22(1)
The Matter of Professionalism
23(3)
An Introductory Problem
26(2)
A Word on the Organization of this Book
28(3)
Regulation of the Legal Profession
31(53)
Problem 1: Admission to the Bar
32(1)
Character and fitness for admission to the bar
33(4)
Candor in the bar application process
37(3)
Educational and knowledge standards for admission to the bar
40(5)
Other attempts at state and federal limits on bar admission
45(1)
Problem 2: Lawyer Discipline and the Disabled Lawyer
46(1)
Conduct that can subject a lawyer to professional discipline
47(4)
Aggravating and mitigating factors in discipline cases; the problem of alcohol & drug abuse
51(3)
Interstate discipline: jurisdictions that may sanction and the law they apply
54(2)
The duty to report another lawyer's misconduct; the discipline process itself
56(8)
Problem 3: Regulating Lawyers Outside of the Formal Disciplinary System
64(2)
The standard of care and conduct in a malpractice action
66(6)
Proving a malpractice case
72(3)
Malpractice remedies; advance waivers of a lawyer's malpractice
75(4)
Other significant consequences of negligence or misconduct by lawyers
79(5)
Fundamentals of the Lawyer-Client Relationship
84(80)
Problem 4: Undertaking to Represent a Client
85(1)
The lawyer's duties to a prospective client
86(3)
The decision to represent a client
89(2)
Documenting the decision to undertake a representation
91(3)
Decision-making during representation---issues the lawyer is to decide and issues reserved to the client
94(4)
Problem 5: Billing for Legal Services
98(1)
The fee agreement between lawyer and client
99(4)
The requirement that a lawyer charge only a ``reasonable'' fee
103(4)
Special rules applicable to contingent fees
107(6)
The alternative of the hourly-rate fee
113(2)
Problem 6: Handling Client Property and Withdrawing From Representation
115(1)
Handling client property
116(5)
Withdrawal when the client becomes too difficult
121(3)
Limitations on a lawyer's efforts to collect a fee
124(4)
Attorneys' liens and other security interests
128(3)
Problem 7: The Duty of Confidentiality
131(1)
Information protected by the attorney-client privilege
132(4)
Information protected by work product immunity
136(2)
The lawyer's professional obligation of confidentiality
138(1)
How legal protection against disclosure can be lost
139(7)
Problem 8: Confidentiality and the Organization as a Client
146(1)
Privilege and confidentiality rules when the client is an organization
147(9)
The common interest privilege among multiple organizations
156(2)
Confidentiality and risks to public health and safety
158(3)
Confidentiality and client fraud---an introduction
161(3)
The Requirement of Loyalty to the Client
164(119)
Problem 9: Representing Multiple Parties Dealing With Each Other
165(1)
Determining whether a lawyer has a conflict of interest
165(2)
Waiver of a conflict of interest; the requirement of informed consent
167(2)
Conflicts for which consent is not effective
169(6)
Remedies other than professional discipline for a conflict of interest violation
175(2)
Problem 10: The Duty of Loyalty
177(1)
Taking a case against a current client
178(6)
Ascertaining who is a current client
184(5)
Firing a current client; the hot potato rule
189(4)
The problem of positional conflicts
193(3)
Problem 11: Conflicts of Interest in Criminal Litigation
196(1)
Limits on one lawyer's representing co-defendants in a criminal case
197(6)
The public interest in objecting to multiple representation
203(2)
Conflicts of interest faced by prosecutors
205(3)
Conflicts of interest of defense counsel; publication rights and social entanglements
208(2)
Problem 12: Conflicts Between Client Interests and the Lawyer's Personal Interest
210(1)
Accepting payment in the form of stock; business transactions with a client
211(4)
Using confidential client information to make private investments
215(2)
Accepting unsolicited gifts from happy clients
217(3)
Intimate relationships between lawyers and clients
220(3)
Problem 13: Representing the Insured and the Insurer
223(2)
A lawyer's client(s) when retained by an insurer to represent an insured
225(2)
A lawyer's obligation to protect confidential information of the insured
227(4)
A lawyer's duty at the time of a settlement offer in a third-party payment case
231(3)
Defining the appropriate level of effort when an insurer pays for the defense
234(4)
Problem 14: The Lawyer and Her Former Client
238(1)
Matters as to which disqualification is required
239(2)
Determining when matters are the ``same or substantially related''
241(5)
Other situations in which Model Rule 1.9 may require disqualification
246(5)
Access to the work product of disqualified counsel
251(2)
Problem 15: Imputed Disqualification
253(1)
Imputation of conflicts throughout a law firm
254(3)
Persons and firms to which imputation will extend
257(4)
Imputation within lawyers' families
261(3)
The use of ``screening'' to avoid imputation
264(4)
Problem 16: Special Problems of Government Lawyers
268(1)
The rules applicable to former government lawyers
269(6)
The former private lawyer who enters government service
275(3)
Negotiating for post-government employment while still in government
278(2)
Conflicts of the former judge or third party neutral
280(3)
Advising Clients
283(93)
Problem 17: The Lawyer for an Individual Client
284(1)
The difference between advice and advocacy
285(3)
Limits on the advice a lawyer may give
288(3)
The client suffering from diminished capacity
291(3)
The client who is likely to endanger others
294(3)
Problem 18: Advising the Business Corporation
297(1)
The client to whom a corporate lawyer owes primary loyalty
298(3)
Reporting corporate misconduct within and outside the client organization
301(2)
Lawyer liability for failure to take appropriate action
303(5)
Some special problems of counsel employed by the corporation
308(2)
Problem 19: Contact with Represented and Unrepresented Persons
310(1)
Contact with a represented opponent in general
311(5)
Special issues when dealing with officers and employees of an organization
316(3)
Interviewing client employees and other unrepresented persons
319(3)
The possibility that special rules apply to federal prosecutors
322(5)
Problem 20: The Ethics of Negotiation
327(1)
Authority to participate in and consummate negotiations
328(2)
The duty of honesty in negotiations
330(5)
The duty to volunteer information or correct a misapprehension
335(5)
Possible limits on the results that can be reached in negotiations
340(4)
Problem 21: The Lawyer as Evaluator
344(1)
Duties to a client who asks for a legal opinion
345(2)
Duties in preparation of a legal opinion for delivery to a third party
347(3)
Special problems responding to an auditor's request for information
350(4)
Lawyer liability for an inaccurate opinion
354(6)
Problem 22: Obligations When the Client May Be Engaged in Fraud
360(1)
Disclosure of a client's intended crime or fraud
361(4)
The special obligations of a securities lawyer
365(6)
Specific ABA and SEC responses to a series of corporate failures
371(3)
Special issues of disclosure by a government lawyer
374(2)
Ethical Problems in Litigation
376(136)
Problem 23: The Decision to File a Civil Suit
376(2)
Ethical Standards governing the filing of a civil action
378(7)
The ethical status of delay as a litigation tactic
385(3)
Consideration of ADR alternatives
388(2)
Other sanctions for litigation misconduct
390(5)
Problem 24: Litigation Tactics
395(1)
The ambiguous line between creative lawyering and deception
396(4)
Using deception in the search for truth
400(6)
Using an opponent's inadvertently disclosed confidential information
406(3)
Judicial efforts to enforce civility
409(3)
Problem 25: Disclosure of Law or Facts Favorable to the Other Side
412(1)
Candor about adverse legal authority
413(4)
Candor about adverse facts
417(5)
Candor about incomplete or inaccurate discovery responses
422(4)
Candor as to factual matters that are not easily verifiable
426(4)
Problem 26: Handling Physical Evidence
430(1)
Confidentiality of a client's identity
431(3)
Taking possession of physical evidence for testing or safekeeping
434(6)
Nondisclosure of physical evidence
440(3)
Destroying, or failing to retain, physical or documentary evidence
443(4)
Problem 27: The Client Who Intends to Commit Perjury
447(1)
Knowing when a lawyer knows something
447(4)
The decision to call a witness who may testify falsely
451(5)
The decision to call the defendant who may commit perjury
456(10)
What to do when the client does give false testimony
466(4)
Problem 28: The Verdict that May Be Tainted
470(1)
The ethics of contacting jurors after trial
471(1)
Contacting jurors before trial; compensation of witnesses
472(2)
Secret tape recording
474(4)
The lawyer as a witness at the client's trial
478(3)
Problem 29: The Crusading Prosecutor
481(1)
Media relations in modern litigation
482(8)
Standards governing a prosecutor's decision whether and what to charge
490(4)
Limits on prosecutors investigating defense attorneys
494(4)
Focusing on the fees of criminal defense counsel
498(5)
Problem 30: The Duty to See Justice Done
503(1)
Duties of a lawyer who learns an injustice may have been done
504(1)
Concerns about the reliability of results in our legal system
505(3)
The obligation, if any, to respond to concerns about an injustice
508(1)
Other conflicts between professional obligations and doing justice
509(3)
The Delivery of Legal Services
512(127)
Problem 31: Marketing Professional Services
513(2)
The constitutional context of the regulation of lawyer marketing
515(4)
When lawyer advertising becomes in-person solicitation
519(6)
Continuing issues in the field of lawyer advertising
525(5)
Continuing issues of in-person solicitation by lawyers
530(5)
Problem 32: The Ethics of Referral to a Specialist
535(1)
A lawyer's duty when a matter requires new skills or raises unfamiliar issues
536(1)
Calling a lawyer a ``specialist'' in one or more fields of practice
537(5)
Payment of a ``referral fee'' in a case such as this
542(3)
Alternatives to referral fees designed to achieve similar benefits
545(3)
Problem 33: Roles and Responsibilities in a Modern Law Firm
548(1)
The obligations of supervisory lawyers and those they supervise
549(4)
The rights of a lawyer who refuses to violate the law
553(3)
Some other legal rights of lawyers, as compared to employees generally
556(4)
Doubts about life in the modern large law firm
560(3)
Problem 34: Leaving One Law Firm and Forming Another
563(1)
The law and ethics of departing from a law firm
564(6)
Efforts by law firms to inhibit their lawyers' ability to leave
570(4)
Buying a lawyer's or law firm's practice
574(2)
Establishing a group legal services plan as part of a law firm
576(4)
Problem 35: The Duty to Work for No Compensation
580(1)
The moral obligation to provide pro bono legal services
581(2)
Efforts to translate a moral obligation into a legal requirement
583(2)
The tradition of accepting court appointment in a criminal case
585(5)
Other sources of funding for legal services to the poor
590(6)
Problem 36: Problems in Class Action Representation
596(1)
The use of publicity to find clients for a class action suit
597(2)
Possible conflicts of interest in class action cases
599(4)
Limitations on advancing funds needed to meet expenses of litigation
603(3)
Calculating fees for prevailing in a class action or civil rights case
606(9)
Problem 37: The Future of the Practice of Law: Unauthorized Practice, Multijurisdictional Practice, and Ancillary Legal Services
615(1)
The unauthorized practice of law
616(7)
The multijurisdictional practice of law
623(7)
Prohibition of the corporate practice of law
630(4)
Law firm delivery of ancillary, not-traditionally-legal services
634(5)
Ethical Conduct of Judges
639(52)
Problem 38: Judges' Disqualifying Conflicts of Interest
640(1)
Financial interests that may create disqualifying bias
641(5)
Financial Interests of the Judge's Family
646(3)
Bias arising from personal views rather than financial interest
649(7)
Waiving Judicial Disqualification
656(1)
Problem 39: The Judge as a Political Candidate and Public Figure
657(2)
The content of judicial campaign speech and activities
659(5)
Judges soliciting and receiving campaign contributions
664(2)
Lawyer criticism of judges
666(7)
The judge rewarding his friends
673(1)
Problem 40: The Active Federal Judge
674(1)
A judge's performance of official duties
675(7)
A judge's participation in non-judicial activities
682(3)
A judge's obligation to model proper behavior
685(2)
Special issues involving federal judges
687(4)
Index 691

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