Professional
Responsibility
Announcements Archives
I will, on occasion, present my
class notes, for persual as you may see fit. These notes, using the magic
of hypertext links, make it possible to refer you to still further information,
writings, links. For my pre-class notes for today's class, see: Pre-Class
Notes: January 14, 2003. For my post-class notes, see: Post-Class
Notes: January 14 & 16, 2003
My class notes can be accessed from the opening page of the course web-site.
With this week's assignment, you
have been asked to read the Preamble to the Rules of Professional Conduct.
You should, beginning with the new problems for this week, read the Rules
of Professional Conduct to determine what guidance they may provide in
your response to the problem. In some instances, I may note specific rules
which I want you to read, in still other instances I may not.
You will be expected to bring a copy of the Rules of Professional Conduct with you to class so that we can examine the Rules carefully.
I announced at the beginning of the course that your grade
for the course would be based on a occasional writings assigned during
the course of the semester and a final examination. The most significant
of those during-the-course writings has now been assigned and I have,
upon your recommendation, delayed the due date for that writing to take
account of assignments in your other courses. The new due date for the
Memorandum, which had been due on March 4th, has been further delayed
until March 13th. The subject for the Memo is outlined on the Assignments
Page, under the March 13th due date.
The final examination for the course will be a take-home examination. (I have not examined and analyzed the final examination schedule to determine whether the exam will be given during the regular examination period or in the final weeks of the course. I will announce the tentative date for the examination as soon as I have examined the finals examinations schedule.)
The final examination will cover: (1) assigned readings and materials; (2) class discussions; (3) the Rules of Professional Conduct; and (4) your reflections on the readings, class discussion, and the moral dimension of lawyering more generally.
The final examination will constitute 50% of the course grade.
My assignment for this past week was overly
ambitious. Our discussion of the assigned material was sufficient (by
extension) to deal with the problem of the lawyer faced with the client
in a criminal case who seeks to testify falsely. Freedman & Smith
argue that a lawyer is ethically required, after counseling the client
to refrain from committing perjury, must, if the client persists to call
the client as a witness and allow the perjury to take place and must not
raise an issue about the false testimony. Many lawyers and ethicists,
a group with whom I would join, contend that a lawyer who knows
(to a reasonable degree of certainty) that the client testimony is false
cannot willingly and knowing allow for it to be become evidence. (Exactly
how to proceed once the lawyer is placed in this situation raises all
manner of questions, and Freedman & Smith make clear all the negative
implications of the argued resolution--i.e. not participate in allowing
the client to perjury him/herself.) Freedman and Smith presented an argument
for their proposed ethical resolution. They do not adequately present
(or even attempt to present) the counter-argument to their proposal. But
you will note, and this is of some significance, that Freedman & Smith
should be given credit for making an argument on philosophical, ethical,
and policy grounds. The basis, that is the philosophical grounds, for
the argument, may or may not be convincing. The important thing is they
do not rely upon mere rationalizations; they try to argue a position and
to support it with the best reasons they can muster. I find their argument
interesting but unconvincing.
I assigned, but we did not have time to discuss, prosecutor's ethics.
Freedman and Smith present a more conventional, and in my view, a more
convincing argument that a prosecutor has a duty to see that justice is
done, and a greater obligation to the truth than is the defense counsel.
I assigned the Freedman & Smith chapter on prosecutor's ethics Understanding
Lawyers' Ethics: 293-327, and you will be responsible, along with
Rule 3.8, Rules of Professional Conduct, for this material on the final
examination.
There was a brief discussion in class concerning
the discussion by Freedman & Smith of the "Disciplinary Rules"
as well as the Rules of Professional Conduct which are applicable to lawyers
in West Virginia (drawn from the American Bar Association's Model Rules
of Professional Conduct which serve as the "model" for the ethical
rules in most jurisdictions). I am not interested in drawing comparison's
between the Rules of Professional Conduct and the earlier Code of Professional
Responsibility in which the Disciplinary Rules can be found. Consequently,
in the readings assigned in Freedman & Smith you can skip the sections
devoted to the Disciplinary Rules.
You might want to review Freedman & Smith, at 2-6 (earlier assigned) in which there is a brief historical overview of the evolution of our ethical rules. As a summary of that discussion, you might keep in mind that:
"The ABA's first codification of ethical rules was the Canons of Professional Ethics in 1908." [Freedman & Smith: 2]. You may, even as we approach a century since the promulgation of the Canons of Professional Ethics, still hear reference to the "canons."
I continue
to post occasional writings (and notes) on teaching (and learning) ethics,
the virtue approach to moral philosophy, and other topics of interest
on the course website. If you are interested in the "theory" of the course and my pedagogical approach to it, these postings may be
of interest. See: Occasional Notes.
Al Karlin
mentioned several disciplinary cases recently decided by the West Virginia
Supreme Court of Appeals and you might want to review these cases:
Lawyer Disciplinary Board v. Belinda S. Morton
Justice Starcher, concurring opinion
C.J. Davis, dissenting opinion
There was a discussion about conflicts
of interest in insurance cases. To familiarize yourself with this area
of conflicts see:
If an attorney is defending an Insured with the defense being provided by an Insurer pursuant to an insurance contract between the Insurer and the Insured, and if that attorney is aware that the attorney's legal bills sent to the Insurer are forwarded to an outside auditing firm, what do the Rules of Professional Conduct require of the attorney? [Kentucky Bar Association E-409]
Commentary:
Ethics in the Insurance Company/Defense Counsel Relationship
Lewin Plunkett, Plunkett & Gibson, San Antonio, Texas
