Chapter 1 Introducing Professionalism and Legal Ethics Agenda

Chapter 1 Introducing Professionalism and Legal Ethics

Agenda • Review Syllabus • Chapter 1 – A. This Professional Responsibility Course is About You – B. Professional Responsibility is About the Legal Profession • Thursday: – Finish B. – C. Can Professional Responsibility be Taught – D. The Legal Dimension of Professional Responsibility

Review Syllabus • • • Professional Responsibility Lecture Fall 2013 Professor Russell G. Pearce rpearce@law. fordham. edu Office Hours by Appointment Only Syllabus, First Assignment & Class Policies I very much look forward to meeting you and learning with you in our Professional Responsibility class. Even though this is a large class, I value your participation and hope to engage in dialogue regarding the ethics rules, the lawyer’s role, and the legal profession’s contribution to society. We will also schedule periodic lunches so that we have an opportunity to talk in smaller groups. The assignment below will prepare you for the first class. Two introductory notes. First, I include below the First Assignment and Class Policies that are already posted so that you can have them together with the syllabus in one document. Second, as mentioned below, we will complete coverage of the rules before the MPRE on Nov. 2, 2013.

Personal Introduction

Syllabus p. 2 • • • I. FIRST ASSIGNMENT 1. Purchase the text: RUSSELL G. PEARCE, DANIEL J. CAPRA & BRUCE A. GREEN, PROFESSIONAL RESPONSIBILITY: A CONTEMPORARY APPROACH (West 2010). You have two choices: 1) You can purchase the text and receive a password that allows you to access an e-version that allows you to follow the hyperlinks in the casebook; or 2) You can purchase (at a lower price) an e-version of the textbook. 2. Find the Rules: When the text refers to an ethics rule, you should read the entire rule and comment. You can access the full text of a rule and comment for free through a hyperlink found in the text. You can also find the rules at http: //www. abanet. org/cpr/mrpc_toc. html. I have found, however, that some students prefer to have a hard copy of the rules. Accordingly, I have asked the bookstore to provide a volume of the rules for you to purchase if you so choose –DZIENKOWSKI'S PROFESSIONAL RESPONSIBILITY, STANDARDS, RULES AND STATUTES, 2013 -2014.

Syllabus p. 3 • • • 3. Register for the course on TWEN. If you have any questions about TWEN, please contact my assistant Emma L. Mercer at ELMERCER@law. fordham. edu. In addition to using TWEN for course materials and self-assessment, I will send emails to class through TWEN and you will be responsible for knowing the content of those emails. 4. Read Chapter One of the text for the first class. Answer all the quiz questions on TWEN for Chapter One by no later than 10 a. m. on August 27, 2012. These questions have no “correct” answer. They are intended to survey your opinions of what professional responsibility means and what you want in a professional responsibility course. II. CLASS POLICIES 1. Class Attendance. This is a class in your responsibilities as a professional. I expect you to fulfill those responsibilities by attending every class unless you have an excuse. I will trust you to be on your honor for your excuses. To obtain an excused absence, you must email Emma Mercer at ELMERCER@law. fordham. edu no later than 5 pm the day before class for an anticipated absence, such as a job interview, and no later than 10 am on the day of class for an unanticipated absence, such as a sudden illlness.

Syllabus p. 4 • • • 2. Multiple Choice Questions and Self-Assessment. The Casebook’s methodology of providing multiple-choice questions before each of the readings is different than the approach of most other Casebooks. Putting the questions first allows you to focus your reading of the texts. After completing the readings, you should answer the questions on TWEN. When you answer the questions, TWEN will tell you the correct answer. Taking the TWEN quizzes will help you prepare for class and assess whether you have learned the material or whether you need to review. (Remember that the quizzes in Chapter 1 do not have correct answers. Almost all of the questions in Chapters 2 -7 do. ) I will not require you to take the quizzes on TWEN but I strongly urge you to do so. My experience is that students who regularly take the quizzes before class are better prepared both for the MPRE and for the final exam. 3. Class Participation. Preparation for each class is one of your responsibilities as a student. 4. Grading. The final examination will be a multiple choice test of approximately 125 questions that will be graded according to the mandatory Fordham curve for large upper-level class courses. I will also award a very small number of increases of 2/3 of a grade to students who consistently demonstrate mastery of the material and offer extraordinary original insights. I will award a larger number of increases of 1/3 of a grade to students who consistently demonstrate mastery of the material through regular participation. Students who have unexcused absences, or are not prepared when called upon, face a decrease in their grade to reflect their failure to meet their responsibilities. Pass around seating chart. 5. Bring a laptop computer, ipad, or smart-phone with TWEN access to class. Not only will this provide you with access to the textbook materials and rules we are discussing, but from time to time we will be using the TWEN instapoll feature and other on-line interactive programs in class.

Syllabus p. 5 • III. Scheduling Notes • • In class, I will provide the specific reading assignments that may not include all of the pages on the syllabus. Our goal will be to complete Chapters 1 -7 before the MPRE on Nov. 2, 2013. The assignment for August 27 (and August 29) is Chapter 1. • • I am cancelling class on September 5 because of Rosh Ha. Shanah. We will not have class on October 15 because it is a Monday for law school scheduling purposes and on November 28 because the law school is closed for Thanksgiving.

Syllabus P. 6 • • IV. Syllabus All pages refer to the text. When the text omits pages, consider those pages optional. The material on those pages may be mentioned in class but you will not be asked to answer questions based on that reading either in class or on the exam. When the text assigns an excerpt from a rule, you are expected to learn the entire rule. I will be posting supplemental materials on TWEN. If so, you will be notified in class or by email. 1. Introducing Professionalism and Legal Ethics pp. 1 -23 • Why start here? • • • Following topics, with examples: ; 2. The Basic Elements of Law Practice A. Unauthorized Practice: pp. 25 -55 B. Creating the Lawyer-Client Relationship: pp. 56 -76 C. Ending the Lawyer-Client Relation: pp. 77 -80, 85 -86 D. Competence: pp. 86 -92, 96 -133 E. Allocating Decision-Making Between Lawyer and Client: • • • pp. 133 -171

Syllabus P. 7 • • • 3. Finding and Billing Clients A. Finding Clients: pp. 173 -201, 211 -232 B. Billing Clients: 232 -265, 269 -279, 291 (skim 279 -296, find answer to question on p. 291) 4. The Lawyer’s Duty of Confidentiality A. Introduction: pp. 297 -298 B. Attorney-Client Privilege: pp. 298 -304, 309 -352 C. The Ethical Duty of Confidentiality: pp. 352 -385; Supplemental Reading on Confidentiality

Syllabus P. 8 • • • • 5. Conflicts of Interest A. Introduction: p. 387 B. Simultaneous Conflicts: pp. 387 -407, 413 -431, 435 -440, 443 -444, 446 -447, 451 -453 C. Former Client & Government Lawyer Conflicts: pp. 454 -467 D. Third-Party Neutral Conflicts: pp. 468 -470 E. Firm Disqualification: pp. 471 -473 F. Conflicts in Criminal Cases: pp. 486 -510 6. The Lawyer’s Duties to the Legal System, the Profession, and Nonclients A. Introduction: pp. 511 -512 B. Duties to the Court and other Tribunals: pp. 513 -573 C. Duties to Third Parties and to the Law: pp. 573 -615 D. Duties to Lawyers and to the Bar: pp. 616 -628

Syllabus P. 9 • • 7. Special Ethical Rules: Prosecutors and Judges – A. The Ethical Duties of Prosecutors: pp. 629 -642; 660; 666 -667; 673 -692; 715 -716 – B. The Ethical Standards for Judges: pp. 716 -776 • • • 8. What is the Proper Role of a Lawyer? – A. Introduction and Role Morality of Neutral Partisan: pp. 767 -802; – B. Competing Visions of Professional Morality: pp. 802 -901 • • • 9. Why Do Lawyers Have Special Privileges and Responsibilities? 1. Introduction and the Professional Privilege: pp. 903 -998 2. Lawyers’ Special Responsibilities? : pp. 998 -1031

I. A. This Professional Responsibility Course is About You • Why are the questions in Part I. A. relevant to a Professional Responsibility class?

Instapoll • If you could summarize how you feel about law school at this moment in one word, what would that word be?

• • • Question 1 I came to law school: A. to make money. B. to make the world better. C. to pursue a particular interest in law. D. to improve my employment. E. because I had nothing else to do.

Question 2 A lawyer is: • • • A. a hired gun. B. an expert advisor. C. an altruistic public servant. D. a businessperson. E. a fraud.

Question 3 As a result of law school and related work, my understanding of myself as a lawyer has: • • A. not changed. • B. changed. I am more interested in public service. • C. changed. I have a different goal for my career. • D. changed. I am more happy about being a lawyer. • E. changed. I am less happy about being a lawyer.

Question 4 After I graduate, I would like to work in: • • • A. public interest law. B. government. C. a large firm. D. a small firm or solo practice. E. a business.

I. B. Professional Responsibility is about the Legal Profession

Question 1 • Your college has invited you to meet with undergraduates to describe a career in law. In no more than 30 seconds, how would you describe the meaning of professionalism?

What is the Business-Profession Dichotomy? What are it’s elements? • Unlike business people, lawyers: – Have expertise that is non-accessible – Are altruists who pursue the public interest – Have autonomy from government and the market

Question 2 Law practice is: • A. a business. B. a profession. C. both a business and a profession.

Question 3 Lawyers should have high ethical standards because: • A. law is a profession. B. lawyer's work has the potential to have a major impact on individuals, businesses and society. • C. all people should have high ethical standards.

Question 4 In your view, which of the following factors is the most significant cause of the crisis of professionalism? • A. Increased competition in the market for legal services. B. Increased diversity in the legal profession. C. Changes in legal education to devalue practice and legal ethics. D. Changes in American culture that encourage skepticism of claims of expertise and of commitment to the public good.

Question 5 Do you agree that lawyers can make money, have fun, and do good, all at the same time? • Yes • No

Can Professional Responsibility be Taught? • What do most students and faculty think of professional responsibility courses?

What explains these attitudes? • Signals • Professionalism – Invisible hand of reputation • Scientism • Assumptions Regarding Moral Development

Question 1 I expect this Professional Responsibility course to be: • • A. fun. B. challenging. C. both fun and challenging. D. neither fun nor challenging.

Question 2 I want the following from my Professional Responsibility course: • A. Knowledge of the law and rules governing lawyers. • B. Development of my professional identity. • C. Development of my capacity for moral reasoning. • D. A & B. • E. A, B & C.

Question 3 I believe that a Professional Responsibility course is: • A. the most important course in law school. – 19 • B. the second most important course in law school. – 14 • C. less important than my first year subject matter classes. – 14 • D. relatively unimportant. – 2

The Legal Dimension of Professional Responsiblity • Jeopardy

Interpretation and Enforcement of the Rules • [14] The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not. " These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may, " are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. • [16] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.

The Comments • [21] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.