February 13. 2003

Discrediting a Truthful Witness

Problem #10: Confessions of a Criminal Lawyer

Reflections on the Wishman reading: [Working with Wishman's Confession] [The Reasons We Present for What We Do] [More about Reasons] [Keeping Track of Our Ideals] [Competition and the Focus on Winning] [The Personal & the Public] [Thinking About Judge Barrett] [A Criminal Lawyer's Inner Damage] [How Does Ethics Work?] [A Conversation About Teaching Wishman's Confession]

Understanding Lawyers' Ethics: 213-226 [See, in particular, the hypothetical case on cross-examining the rape victim, at pp. 213-214] [Freedman & Smith take the hard-line view that it is appropriate to make the truthful witness out to be mistaken or a liar and that the lawyer is ethically required to do so, and to do so without regard to the resulting harm to the witness (or to the lawyer). An argument, and I think a strong one, can be made for a different conclusion.] [In response to the Freedman & Smith argument: see Preamble, Rules of Professional Conduct; Rule 1.16, Withdrawal from Representation; Rule 3.1, Meritorious Claims and Contentions; Rule 3.3, Candor Toward the Tribunal; Rule 3.4, Fairness to Opposing Party and Counsel; Rule 4.1, Truthfulness in Statements to Others; Rule 4.4, Respect for Rights of Third Persons; Rule 8.4, Misconduct]

Problem #11: Preparing the Client's Defense [Walter Walker, A Dime to Dance By 36-43 (New York: Penguin Books, 1985)] [xerox packet] [The lawyer's name in the excerpt from A Dime to Dance By is Chuckie Bishop]

Related Problem: [Discussions with Deponent During Deposition (State of West Virginia ex rel. Christina Means v. Charles E. King, Judge of the Circuit Court of Kanawha County, WV Sup.Ct.App., 1999)]

Thanks for the Memories: How Lawyers Get the Testimony They Want [a follow-up, exchange of letters][scroll down "Memory Gaps" to find the applicable letters] [more on the tactics of the lawyers in the law firm of Baron & Budd: Control Freak (Dallas Observer); Toxic Justice (Dallas Observer) "Anatomy of a Murder"–The "Lecture" Michael Asimow, UCLA Law School Ethics in the Woodshed Walter Steele, Southern Methodist University

Understanding Lawyers' Ethics: 191-211

The Client as Friend [George V. Higgins, Kennedy for the Defense (New York: Henry Holt and Company, 1995) (1980)] [xerox packet] [Notes] [George V. Higgins, the author of Kennedy for the Defense, wrote three more novels featuring the lawyer, Jerry Kennedy: Penance for Jerry Kennedy (New York: Alfred A. Knopf, 1985); Defending Billy Ryan (New York: Henry Holt and Company, 1992), and Sandra Nichols Found Dead (New York: Henry Holt and Company, 1996). Higgins, a former Federal prosecutor and Boston criminal defense lawyer, wrote other novels, and gained prominence with the publication of The Friends of Eddie Coyle: A Novel (New York: Henry Holt and Company, 1995) (Amazon.com review: "George V. Higgins's first novel is like a blast of Atlantic air; the Boston prosecutor virtually reinvents the language of the crime novel with his unique ability to breathe life into the dialogue of the smalltime hoodlum and hustler.") Higgins was known for his ability to create wonderful dialogue. Regrettably, Kennedy for the Defense is now out-of-print.]

Lawyers With No Confession to Make George V. Higgins Biographical information

Clients and Their Perjury

Understanding Lawyers' Ethics: 153-168, 172-190 [Note: I have serious reservations about the Freedman & Smith conclusion that it is proper (ethically and morally) for a lawyer to present testimony known to be perjurious. They mount a strong defense for the proposition but is simply one side of a complex argument. For a response to the Freedman & Smith position, see John T. Noonan, Jr., Professional Ethics and Personal Responsibility, 29 Stan. L. Rev. 363 (1977); David Luban, Lawyers and Justice 197-201 (1988)]

West Virginia Rules of Professional Conduct: Rule 3.3

Prosecutors' Ethics

State of West Virginia v. Walter Lee Swafford, II
(Justice Startcher concurring)(statement about the duties of a prosecutor)

Charles M. Hatcher, Jr.
(a West Virginia disciplinary action; prosecutor's failure to disclose exculpatory evidence) [See also: State of West Virginia v. Kennedy (prosecutorial misconduct for failure to disclosure a lengthy statement of the defendant given to the police)(court found the statement did not contain Brady material)][John G. Simms (West Virginia prosecutor removedl from office for misconduct)]

Understanding Lawyers' Ethics: 293-327

Rule 3.8, Special Responsibilities of a Prosecutor
Model Rules of Professional Conduct

On the Matter of Character

Thinking About Character

Readings on Character

Fitness to Practice Law

The Case of Paul Raymond Converse
Nebraska

Fitness Standards Frequently Asked Questions Supreme Court, State of Arizona

 March 6. 2003

Florida Board of Bar Examiners Re: J.A.B.

Florida Board of Bar Examiners Re: P.K.B.

Gary Wayne Frasher

Mark L. McMillian

[Justice Scott concurring opinion]
[Justice Starcher concurring]
[ruling on McMIllian's petition for rehearing]

Moral Character (Discussion continued)

John Curtis Dortch

[See also: Trial Memorandum, Orrin R. Onken, Supreme Court of the State of Oregon]

The Case of Matthew Hale

In re: Appliction for Admission to the Bar of Matthew F. Hale,
Inquiry Panel Decision, Committee on Character and Fitness
for the 3rd Appellate District, Supreme Court of Illinois (1998)

Rule 8.4(d), Rules of Professional Conduct [on-line text]

Hearing Board Appeal for Matthew Hale, Committe on Character
and Fitness, Supreme Court of Illinois, 3rd Judicial District

The Supreme Court of Illinois denied Mathhew F. Hale's petition for a full review by the Court and denied Hale's motion to file a reply to the Character and Fitness Committee's response on November 12, 1999. Justice Heiple dissented, In re Hale, 723 N.E.2d 206 (Ill. 1999)

 Writing Assignment: March 13. 2003

Should we hold lawyers morally accountable for the civil clients they represent? (Note that we are talking about clients in civil cases. The arguments, moral and otherwise on this question, are often confused by references to a lawyer's duties and underlying principles in the representation of criminal defendants.) Should lawyers be held morally accountable for the "tactics" they use in the representation of their clients?

In your response to these questions you should take into account: (1) the problems we have been discussing in class; (2) the class discussion of those problems; (3) Freedman & Smith's commentary on the matter of moral accountability in Understanding Lawyers' Ethics; (4) Duncan Kennedy, "The Responsibility of Lawyers for the Justice of Their Causes"; Irving Younger, "Commentary"; Anthony Kronman, "Serving the Client," in The Lost Lawyer; Warren Lehman, "The Pursuit of a Client's Interest" [all in the xerox packet]; (5) Notes: The Two Kingdoms Problem; (6) other materials, texts, and arguments which you may find relevant in response to these questions.

 March 27

Readmission to the West Virginia Bar after Suspension From Practice

Eugene M. Simmons

Truman Lynch Sayre

James E. Roark

Richard F. Pence

Michael C. Farber

 April 1: Guest Speaker: Al Karlin, member of the Lawyer Disciplinary Board

 April 3, 8, 10. Confidentiality

Understanding Lawyers' Ethics: 127-152 (skip Sec. 5.04, pp. 133-135)

West Virginia Rules of Professional Conduct: [Rule 1.6] [Rule 1.8(b)] [Rule 1.2(d)] [Rule 3.3]

Confidentiality Problems (for class discussion)

In Re Ryder, 263 F. Supp. 360 (E.D. Virginia, 1967)

 April 15 & 18. Conflicts of Interest

Understanding Lawyers' Ethics: 255-291 (skip Sec. 10.16, Conflicts of Interest Under the Model Code, pp. 278-279)

West Virginia Rules of Professional Conduct: Rule 1.7 through Rule 1.11

Problems for Class Discussion

Expanded version of the "conflicts problems" discussed in class: New Version of the Conflicts Problems

 April 22. Conflicts of Interest

Michael Vance
(West Virginia disciplinary action)

John E. Artimez
(West Virginia disciplinary action)]

State of West Virginia ex rel. Youngblood. v. Sanders, Judge of the Circuit Court of Morgan County (Sup. Ct. App. W.V., 2002) [C.J. Davies, concurring opinion (raising a question as to whether the state has standing to seek disqualification based on a conflict of interest)]

Thursday. April 24. Professionalism: Is It a Problem?

Final Examination is Due. Thursday is our final class; we will not meet on Tuesday, April 29th.

A Memo I Did Not Have You Write: Review (or perhaps, peruse, might be a more reasonable request given this late date in the semester) the collection of commentary, essays, and miscellaneous articles designed by the (assigned reading symbol)."Make a list of the "Ten Problems--Lawyers and Their Professionalism." Select three problems from the list which you believe, based on what you now know about the legal profession, and from the work we have done in class, which constitute the most serious problems confronting lawyers and the legal profession along with your commentary on the selected problems. Make a second list consisting of the problems you identified on your "Ten Problems with Lawyers and Their Professionalism" which you do not personally believe to be of great significance (although they may be viewed so by others).

Aspirational Morality: The Ideals of Professionalism

A Prayer for the Professions

Young Lawyers and the Enhancement of Professionalism

The Lawyer as a Professional: The Changing Legal Profession
Professor Roger C. Cramton, Cornell Law School

The Betrayed Profession
Sol Linowitz, an excerpt from his book The Betrayed Profession (1994)

The Redemption of the Legal Profession

Commentary on the Professionalism Problem