1.01. Introduction

The title of the course is Professional Responsibility & Ethics. This means that the focus of the course will be two-fold. First, it will be on overarching issues of professional responsibility – a lawyer’s responsibility to her client, the judicial machinery, as well as to the public. In this larger understanding of a lawyer’s obligations we will discuss legal malpractice, contempt, and a lawyer’s constitutional obligations when representing a criminal defendant. The second focus will be on the rules that set out a lawyer’s obligations. The American Bar Association (ABA) has provided compilations of ethical rules since 1908. The current version of the ABA rules was adopted in 1983.  It is important to note that the ABA model rules are just that – a set of rules developed by the ABA.  Every jurisdiction adopts its own version of ethical rules, often drawing from the ABA model rules but with significant revisions.

What are the goals of this course? First and foremost, to make you familiar with the ethical rules and doctrines that will govern every aspect of your practice – regardless of the type of law or area of specialty. In that sense, this is an educational class. Some of my proudest moments are when I receive an email or a phone call from a former student saying, “I think I remember something in ethics about….” The key is to make you familiar with the concepts of ethics so when something comes up in practice it triggers an ethical red-flag.

In addition to the rules, we will also have outside readings that I selected for one of two reasons. First, the readings – which consist primarily of cases, ethics opinions, and articles –provide an explanation of a particular rule or concept or allows you to see the rule in action. Some older cases are included because they are foundational. Cases in this category include U.S. v. Upjohn (attorney client privilege in the corporate context) and Strickland v. Washington (ineffective assistance of counsel). Others are included because they are a good application of the rules.  There are also a number of ethics opinions.  These opinions are very helpful because they are usually short, address an issue of current interest, and are unique to the world of legal ethics.  One of the first things you should ask yourself when an ethics issue comes up (other than ‘what does the rule say’) is whether there is an ethics opinion that addresses your concern.

As you go through the readings, try to put yourself in the role of the lawyer and the client. What went wrong? Why? What could have been done differently to avoid the conflict? Unfortunately, this is not a class of “happily-ever-afters” – if a case made it into this book there was likely an irreconcilable breach between the lawyer and the client. And the questions we will most often be asking are: is the lawyer subject to discipline? Subject to damages (and to whom)? By putting yourself in the role of the lawyer (and client), you can start to see how the lawyer-client relationship can break down – and avoid those traps!

As with any substantive course, every topic covered could constitute an entire semester class on its own. So, the goal here is to provide you enough depth to familiarize you with the principals involved.  Take a look at the Table of Contents.  The course is arranged to cover the entire life cycle of a lawyer’s ethical concerns: ranging from admission to the practice of law.  The goal is to give you exposure to all of these topics before the end of the semester.