Professional Ethics for LLM Students Professor Flavia Berys 619.665.3528 www.BerysLaw.com/cwsl
Class 1 � www.BerysLaw.com/cwsl � Syllabus and class policies � What are professional ethics? � A brief history of ethics rules � Zealous advocacy vs. ethics and personal morality
MPRE http://www.ncbex.org/ � Multistate Professional Responsibility Examination (MPRE) � National Conference of Bar Examiners � The MPRE is a 60-question, two-hour-and-five-minute, multiple-choice examination administered three times per year at established test centers across the country. There are 50 scored and 10 nonscored pretest questions. � The purpose of the MPRE is to measure the examinee's knowledge and understanding of established standards related to a lawyer's professional conduct; the MPRE is not a test to determine an individual's personal ethical values. � The MPRE is based on the law governing the conduct of lawyers, including the American Bar Association (ABA) Model Rules of Professional Conduct (MRPC) and the ABA Model Code of Judicial Conduct (CJC), as well as controlling constitutional decisions and generally accepted principles established in leading federal and state cases and in procedural and evidentiary rules.
LLM Program & State Bar Requirements � Everyone has to take the MPRE. There are very few jurisdictions where foreign lawyers are permitted to take the bar without also taking the MPRE in addition to CA and New York (for example, Washington, State and Arizona, if students have a common law degree). � Many states test of Ethics in the bar exam as well
What Are Professional Ethics? � Three concepts: � Morality � Ethics � Zealous advocacy � Where do we find the answers?
Sources of Ethics Authority � ABA Model Rules of Professional Conduct � ABA Model Code of Professional Responsibility � ABA Model Code of Judicial Conduct � California Rules of Professional Conduct � Other statutes governing lawyers � Case law � Bar association opinions on ethical issues
A Brief History of Ethics Rules � Common law edicts � 32 Canons of Professional Ethics (1908) � ABA Model Code (1969) � ABA Model Rules (1983) � Adopted by most states by 1994 � California among the exceptions
Abraham Lincoln’s Notes for a Law Lecture (July 1, 1850) “There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”
Question: � How can you tell if a lawyer is lying?
Question: � What do you call 100 lawyers at the bottom of the ocean?
Competence � ABA Model Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Competence Legal Knowledge and Skill � [1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the � relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances. [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the � lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question. [3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily � required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest. [4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This � applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2. Thoroughness and Preparation � [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, � and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c). Maintaining Competence � [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in � continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Zealous Advocacy vs. Personal Morality � Tension between the goals of a client- oriented advocacy system and a society- based system of morality � Example—the tobacco lawyers � Example—turning back the postage stamp meter to “make” the deadline
Zealous Advocacy vs. Personal Morality � Clients retain us to meet their needs, not our own needs or the needs of society � Most clients are members of the public who expect lawyers in the abstract to be fair-minded and evenhanded � But—for their own lawyer, clients want an attorney who will do whatever it takes to win
Zealous Advocacy vs. Personal Morality � How does this tension affect attorneys? � Name possible problems � D____________ � A____________ � U____________ � F____________
Professional Ethics for LLM Students Professor Flavia Berys 619.665.3528 www.BerysLaw.com/cwsl
What Are Professional Ethics? � The ethical dilemma of Charles Phillips � Client confesses in confidence before closing arguments � Attorney Charles Phillips gives an impassioned plea for his client’s innocence � News of the confession leaks; public backlash condemns the attorney
What Are Professional Ethics? � Moral backlash: Am I simple enough to consider that he who defends the guilty, knowing him to be so, forgets alike honour and honesty, and is false to God and man!
The Charles Phillips Dilemma— Authorities � ABA Model Rule 1.6 ( Confidentiality Of Information) (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) [Lists various exceptions, including “to prevent reasonably certain death or substantial bodily harm” and “to comply with other law or a court order.”]
The Charles Phillips Dilemma— Authorities � California Rule of Professional Conduct 3-100 (Confidential Information of a Client) (A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule; (B) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.
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