Upenn Law Professional Responsibility Outline Professor Fox

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  • Topic: Law, Lawyer, Attorney-client privilege
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  • Published : September 29, 2008
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A.Law Governing Lawyers: Two vast bodies of law together constitute the “law governing lawyers.” These two sources are: (1) the lawyer codes; and (2) the application of general law to lawyers.

1.Ethic Codes and Model Rules: Every state has an adopted code of ethics for lawyers that operate as a set of mandatory legal rules governing lawyer conduct. In addition, the American Bar Association (ABA) has adopted a series of three model ethics codes that have served as models for state adoption. Because the ABA is a voluntary, non-license granting organization, though, none of these three has ever been directly controlling on a lawyer’s conduct.

i)State-Adopted Codes Are Controlling: The states have adopted ethic codes. Although all but one of the state-adopted codes are based on the ABA models, it is the state-adopted code, not the ABA model, that actually controls in the particular jurisdiction. State-adopted lawyer ethic codes either by legislation or by rule-making action by the state’s court of last resort.

2.Case Authority: In several ways, courts make the law governing lawyers…

i)Interpretation of Ethical Codes: Courts have interpreted the existing ethic codes and, as such, make the law of lawyering in their interpretive activities in the same way that courts make the law in interpreting statutes.

ii)Inherent Power to Regulate Lawyers: Because courts have inherent powers to regulate lawyers (who are officers of the court), a common law of lawyer regulation also exists.

3.Other Substantive Law: The law of a wide variety of other substantive areas also forms an essential part of the law of lawyering. This includes – but is not limited to – contracts, torts, fiduciary duty law, agency law, criminal law, procedural law, antitrust law, and other various administrative regulations.

B.Role of Lawyers

1.Morally-Neutral Adversarial Role: The standard ethical justifications for lawyers’ neutral partisan role rest on two major premises. The first, drawing upon utilitarian reasoning, is that an adversarial clash between opposing advocates is the best way of discovering truth. The second premise, based on individual rights, is that morally neutral partisanship is the most effective means of protecting human freedom and dignity.

i)Critique: Lawyers should be morally responsible, and the avoidance of ethical responsibility is corrosive for lawyers, clients, and the legal system as a whole. Taken to its logical extreme, a professional role that gives primary allegiance to client concerns undermines legal order.

2.Lawyers as Instruments: Focus on providing individual client representation and adversarial advocacy. Pride themselves in presenting almost any client who seeks their assistance, on the theory that every point of view deserves legal representation. They suppress their own moral judgment as the client’s value system controls representation, and accordingly, the lawyer escapes moral accountability.

3.Lawyers as Directors: Directive lawyers tend to focus on their roles as officers of the legal system and members of a profession. Once they agree to take on a representation, directive lawyers nod to basic fiduciary duties, but also regard themselves as legal experts who should determine how to handle the matter with little client consultation.

4.Lawyers as Collaborators: Collaborative lawyers create enough professional distance to offer objective advice, but foster a relationship that enables the client to articulate the ends and means of the representation. Clients are seen as best able to make decisions for themselves, but need the expertise and perspective of lawyers to consider fully both their own interests as well as the effect of their decision on others. The lawyer and the client are jointly held morally accountable.


A.No General Duty to Undertake Representation: In...
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