Module 6 – Legal Education/How to Succeed in Law School/Honesty, Integrity, Loyaty and Reputation/ Outline Flashcards
A lawyer with integrity embraces honesty as
more than a virtue, it is a professional imperative
Ethics rules mandate that a lawyer must be honest in their dealings with
- the public
- each other
- the courts
Lawyers have to draw the line between
advocacy and affirmative misrepresentation
Lawyers have to be honest even when
it doesn’t not advance a client’s case
Reputation for either honesty or trickery will
either help or hamper the lawyer’s career
Lawyers are trained in reasoning and argument
so they rationalize to defend an answer that to an objective observer might be without merit
A lawyer’s code of conduct reflects
choices rather than moral absolutes (not apparent to public –> ex. confidentiality)
Clients must have an unfettered right to
tell their lawyers the truth, even if that truth means admitting misconduct –>only with all the facts can a lawyer give good advice
Spaulding v. Zimmerman (Minn., 1962)
- auto accident where plaintiff received life threatening injuries that neither he or his lawyer knew about
- defense was prohibited by client to reveal this (revelation would have increased value of the case –> how much defense had to pay to settle)
- After injury was discovered, plaintiff reopened the case and original settlement was vacated but without finding the defendant’s lawyer had violated any ethical duty
- Supreme Court held that the lower court had not abused its discretion in vacating the settlement because the lower court was entitled to learn of the plaintiff’s condition from the defense although they had “no canon of ethics/legal obligation that required them to advise the plaintiff, their counsel, and court”
- 40 yrs after (2002), ABA ethics rule on confidentiality of information was amended to make clear that a lawyer “may” reveal a client confidence if they have reason to suspect that doing so will prevent substantial harm or death (permissive not mandatory)
The duty of honesty with clients dealings is
squarely owed to that client and should be regarded as inviolate (rare exception –> harm to client)
A lawyer’s duty of loyalty and honesty mandates that
they share all news, good or bad, with the client
Lawyers involved in litigation have a specific duty of candor and honesty to the court that can trump their duties of loyalty and confidentiality to the client
- in the criminal case, lawyers are allowed and required to make the state prove its case even if they are aware the client is guilty + constitutional right to trial/counsel
- in a civil case, lawyer may not proceed with a case that they believe is frivolous/without reasonable basis in fact or law + no constitutional right
Part of skilled lawyering is avoiding
cases that make you decide between answering a question from the judge honestly and losing the case or lying/evading it and gleaning something from the doomed cases
People v. Simac (App. 1992)
- counsel had clerical employee who resembled the defendant sit at the counsel table but failed to inform the opposing counsel of this
- officer who responded to the traffic incident took the stand and misidentified the clerk as the defendant
- appellate court held that that counsel materially deceived the court in affirming the finding of contempt
Lawyer has a duty of honesty to the client, court, and
public
Case law allows a lawyer to pursue even weak cases if
the lawyer has good-faith legal basis to believe the matter is supported by fact and law/case can be made for modification of existing law
Gideon v. Wainwright
- great cases born out of desperate claims
- Clarence Gideon sent handwritten paper note in pencil SCOTUS arguing that poor people should be given a lawyer in criminal trial
- Attorney Abe Fortas (future justice) believed principle was important enough to test at the highest court despite np prior holding
- changed U.S. criminal jurisprudence
Assertions of opinion as to price, value, or client’s settling point are understood to be
advocacy and not absolute truth (creative advocacy vs fraud)
Fine line drawn between
affirmative misrepresentation and silence in the face of an opponent who is ill-informed that a decision will be advantageous to them
Ethics codes recognize lawyers as both a
advocate (advances case )and client counselor (advises/helps client choose the proper course)
Clients own cases not lawyers but will often need
advice on which objectives are realistic, make economic sense, do more harm than good, conduct allowed by law, and consequences of any particular course of conduct; ultimate decision is the clients –> modern vision = collaborative relationship (b/w client and lawyer toward objectives and process)
Expectations for a lawyer in advising clients is
to remain neutral, unemotional, and loyal to their social, professional, and institutional duties + guard against external forces that could influence their advice
If a lawyer cannot give dispassionate advice because of a personal interest they may have in the matter
they should withdraw from the representation
Lawyer may not accept payment from a client if
that payment comes with any compromise of the lawyer’s ability to counsel without outside interference
In a civil case, a client has
sole and final authority over whether to settle (certain issues like trial strategies will the lawyer’s alone)
Rules allow a criminal client absolute control over
decisions as to whether to take a plea offer, try a case to a court or jury, and whether to testify + all other decisions are collaborative
A lawyer by advancing a client’s legitatmate interests is NOT
endorsing them (because they are dispassionate/objective + serve private/public goals)
If the lawyer realizes they cannot be loyal because client’s goals are so disconstant with their moral code they cannot be loyal, the lawyer should
withdraw
Lawyer must avoid any conflict of interest and
must advance client’s goals even in the face of public disapproval
Lawyer’s only professional choice is to (for criminal lawyers)
aid the client regardless of guilt –> duty is to them and their right to have every element of the case against them tested according to legal principle
Lawyer’s social, professional and ethical duties mandate that
they advocate for clients honestly, without deceit or trickery, and according to acceptable legal principles (zealous but not “by any means necessary”)
Clients have right to make choices the lawyer may consider unwise/inappropriate.
An essential element of integrity is the willingness to allow them to do so
Context is important for setting fees
ultimately, arriving at a “good” fee will be a collaborative process –> lawyer will guide client the client to choices that offer the best return for the investment
Reasonable alternatives available like
mediation, arbitration, or truncated presentations –> lawyer will make sure client can make an informed decision
Permissive withdrawal is allowed when
- a lawyer and client’s opinions become so divergent they can no longer in good faith endorse the client’s course of action
- lawyer and client reach a point of irreconcilable disagreement in some important point
- when the client has stopped paying the lawyer
- when continued involvement with the client will financially harm a lawyer
- other good cause is shown
- continued representation would require a lawyer to breach an ethical duty
- lawyer’s physical/mental health mandates ending the relationship
Withdrawals must be managed in a way that
does not harm the client’s case
Fees can be
both fixed and contingent
Professional and personal duties also require lawyers to
police each other –> duty to report another lawyer to the appropriate disciplinary authority and misconduct that raises substantial question as to the other lawyer’s trustworthiness of fitness
A lawyer with an excellent reputation will have
worked to build and preserve it (think about an enduring reputation and start early to create it –> end in mind)
A reputation consists of
deeds done, established relationships, and of attainment
Reputations may begin to emerge from
the start of law school or even earlier (reputation among classmates/staff who could be future colleagues, clients, judges, confidantes, mentors, etc.)
Reputation begins with
friends, family. and other close relationships –> SUCCESS depends on reputation beyond this inner circle (depends on outsiders who have heard and believe)
Beyond competency a reputable lawyer will be known
- for going about his work in a professional way
- comporting himself civilly
- in all ways, honoring duties to clients, opposing parties, and their counsel, the profession, the public, and our systems of justice
Lawyers build their reputation through
interactions with their colleagues, clients, neighbors, friends, relatives, judiciary, and others
A lawyer can strengthen their reputation by demonstrating proficiency before the bar and public by
- penning legal articles
- authoring a legal blog in the legal or broader community
- offer legal analysis or commentary online, television, or radio
- make presentations the bench, bar, PTA, civic clubs, sororities/fraternities, and faith-based entities
In all that a lawyer does – 24/7, near and far their words and actions should
demonstrate competence and professionalism, all serving to enhance their professionalism
Reputation can be manufactured
lawyer can create reputation for doing legal work in a specific or notable way that can attract to potential clients –> deliberately stake out trademark practice strategies or types of clients
Reputation can be both an
asset and liability, even at the same time (positive, negative, mixed)
For high-profile appointments, reputation is usually a
paramount consideration and may determine whether the appointment is secured or not (may satisfy the criteria –education, years of practice, etc. – but the threshold question is whether they will pass the reputation test AKA what others say about them)
A solid reputation can deliver
support in a tough situation where qualifications/character and fitnesses are questioned
In dealings with judges, arbitrators, jurors, mediators, and others in decision-making positions
a lawyer should at all times show respect, act with candor, and speak with courtesy
A lawyers reputation matters to
the firm, regardless of practice size
Social media platforms can
risk a good reputation
ABA Article: Lawyer Richard Liebowitz “Copyright Troll”
- The Southern District of New York’s grievance committee ordered interim suspension against him
- sanctioned by Judge Jesse Furman
- Liebowitz filed thousands of copyright infringement cases in federal courts
- Furman ordered Liebowitz to serve a copy of his opinion on all his current clients, in all his pending cases, and in future cases filed in the next year, ordered Liebowitz and his firm to pay > $83,000 in attorney fees and $20,000 for the false claim about the copyright registration, and required him to attach copies of copyright registrations in any infringement case filed in the next year.
- appeals court said the evidence against Liebowitz and his pattern of misconduct in other cases justified the nationwide scope of the sanction
- The 2nd U.S. Circuit Court of Appeals at New York upheld the nationwide sanction
- he is “one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer” in the Southern District of New York
- In a different case, Liebowitz lied about the date of his grandfather’s death to justify missing a court conference (+40 cases criticizing him were listed in Furman’s opinion)
Katko v. Briney (Iowa, 1971): Facts
- Plaintiff: Marvin E. Katko
- trespassed with accomplices to steal antique fruit jars (broke & entered by removing board)
- set off spring-gun trap and was shot in leg –> resulted in permanent deformity, loss of tissue, and shortening of the leg; hospitalized for 40 days
- Defendant: Edward and Bertha Briney (owners of property)
- house inherited by Mrs. Briney, had been unoccupied for some time, and was not their living residence
- series of intrusions over the years, boarded up windows and doors, trespass signs posted before ‘67
- defendants set shotgun trap (June 1967) –> rigged to fire when bedroom door was opened, tin nailed over bedroom window (gun not visible form outside/no warning)
- Defense was: “law permits use of spring gun in dwelling/warehouse to prevent unlawful entry”
Katko v. Briney (Iowa, 1971): Case
- Jury found for Katko who was awarded actual and punitive damages ($30,000 –> $274,000 in 2021)
- Defendants appealed
Katko v. Briney (Iowa, 1971): Issue and ruling
Issue: can an owner protect personal property in an unoccupied, boarded up farmhouse against trespassers and thieves by a spring-gun capable of inflicting death/serious harm
Held: No (og verdict affirmed)
- use of spring gun to protect property was not permissible
Rule of Law:
*value of life and limb, not only to the individual concerned but to society, outweighs the the potential damage to property unless the intruders threaten death/bodily harm
- many jurisdictions hold landowners criminally liable for serious injuries/homicide caused by springs or other set devices
Katko v. Briney (Iowa, 1971): Cited Case
Allison v. Fiscus (1951)
- dynamite trap injured trespasser
- court recognized plaintiff’s right to recover punitive or exemplary damages + compensatory damages
Katko v. Briney (Iowa, 1971): Dissent
Justice Larssen
- trial judge’s instructions failed to tell jury it could find the installation was not made with the intent of striking or injuring the plaintiff (setting trap does not = liability)
- principle espoused had never been applied to a burglar
- punitive damages should not be allowed where the trespassers conduct was criminal
Surocco v. Geary (California, 1853): Facts
Plaintiff: Pascal Surocco
- property owner; was removing belongings when house was blown up
Defendant: Geary (appealed under practice act of 1850)
- alcalde (mayor) of San Francisco
- destroyed the plaintiff’s property
- justified by virtue of his office
- building blown up to stop progression of the fire
Verdict rendered for plaintiff
Surocco v. Geary (California, 1853): Issue and Ruling
Issue:
Can the person who tears down/detroys the house of another in good faith and under necessity during the time of a conflagration for the purpose of saving the buildings adjacent and stopping its progress be held personally liable in an action by the owner of the property destroyed?
Held: Yes –> Judgement REVERSED
- necessity provides privilege for private rights
- common law adopts principles of the natural law and places the justification of an act otherwise tortious on the same grounds as necessity
Rule of law:
Necessity must be clearly shown
- person w/ direct interest cannot decide
- evidence support the destruction was necessary as the house would have been consumed anyway
- legislature of the state possesses the power to regulate this subject by providing the manner of destruction and mode of compensation
**court invited the legislature to change the law (legislature guides the courts) –> Raul
Speaker:
Professor Raul Ruiz, Assistant Dean of Bar Preparation and Assistant Professor of Academic
- created bar exam success program
- J.D., Florida International University College of Law
B.S., Yale University - 3rd year class –> US Law and procedures
Professor Raul Ruiz serves as FIU Law’s Director of Bar Preparation. He was previously a professor of critical skills at the Shepard Broad Law Center at Nova Southeastern University and an adjunct professor of Legal Skills & Values at the FIU Law. Professor Ruiz served as an Assistant State Attorney in Miami-Dade County and practiced privately in the areas of criminal defense, personal injury, and appeals.
In 2003, Professor Raul Ruiz earned his bachelor degree with a dual major in Economics and Electrical Engineering from Yale University. In 2006, he obtained his Juris Doctor degree, magna cum laude, from the Florida International University College of Law, where he was the Vice-President of the Moot Court Board.
While an undergraduate at Yale and under the supervision of Professor Jack M. Balkin, Mr. Ruiz wrote his thesis titled, Creating Filter Templates: A Best Practices Model. This thesis addressed the issue of how best to protect free speech on the Internet while simultaneously allowing parents, public libraries, and other entities to filter internet content in a socially responsible and constitutional manner. Mr. Ruiz’s thesis led to the expansion of the Internet Content Rating Association’s (ICRA) free labeling system and software. Mr. Ruiz also served as the co-founder, editor and technical director of LawMeme at Yale Law School, a legal blog of law and technology issues.
Mr. Ruiz is a member of the Florida Bar and previously served on its Small Claims Court Rules Committee and Moot Court & Mock Trial Subcommittees of the Law Related Education Committee of the Florida Bar. He is also admitted to practice in the United States District Court for the Southern District of Florida, the United States Bankruptcy Court for the Southern District of Florida, the United States District Court for the Northern District of Florida, and the United States Bankruptcy Court for the Southern District of Florida.
In 2013, Professor Ruiz was awarded the Justice Education Award by the Florida Bar for his work with high school moot court competitions held before the Florida Supreme Court and for furthering the civic education of Florida’s youth.
Raul: Cognitive schema
framework for knowledge
Raul: forgetting curve (Ebbinghaus)
to reset the forgetting curve (decline of memory retention over time) you have to create you own outline AKA active learning
Raul: Outlines
- Copy table of contents –> serve as your cognitive schema (syllabus too)
- with each outlining session add more to the skeleton (table/syllabus) by incorporating the rules learned about the subject matter
- fill in as you go and actively change the forgetting curve by synthesizing the information again
- will have 50-70 pages by the end of the semesters with every you can be tested for
- outlines are a synthesis of case briefs –> rules and concepts that the main takeaways (putting together the puzzle pieces)
Raul: Supplemental study aids
- should purchase
- cover everything on the syllabus
- ensure everything you’re studying is correct (see if you can solve problem through the aid)
- Testing effect = the more you practice (problems, hypotheticals) the better you get
Honesty
- in dealing with the public, with each other, and with the courts
- a dishonest lawyer will not be trusted by his peers or the judiciary
Civil attorneys should not
pursue cases that are frivolous or without merit (even if it’s against the client’s wishes
Be honest with the client from the initial conference & do not take the case if
it is without merit and/or initiated solely for the purpose of harassment
Attorney and the public - duties
Do not mislead witnesses or other members of the public
Reputation
- A lawyer’s reputation for honesty or trickery will help or hamper their careers
- Lasts a lifetime
- Begins as early as law school
- Begins with family & friends
Through interactions with colleagues, clients, judiciary, law school - Professionalism should permeate every aspect of your life, not just the legal work
- Can be created consciously & deliberately
What is a reputable lawyer?
- Competent
- Conscientious
- Thorough
- Effective
- Good Moral Character
Reputation can be an asset & liability
- Positive / Negative
- Speaks to the individual, clients & firm
- Affects fees
- Credibility with judiciary
- About relationships which should be protected & nurtured
Loyalty to the client vs. independent judgment
- Lawyer’s personal interests can’t interfere
- Payment should not come with strings
- Avoid conflict of interest
Fees
- Should be reasonable & commensurate with attorney’s experience
- Keep the client posted on anticipated fees as the case advances
- Recommendations should be based on the interest of the client not on maximizing fees
Factors to determine reasonableness (FEES)
- Nature & scope of work
- Amounts usually charged for work
- Risk
- Time
- Expertise
- Reputation of Lawyer
- Results obtained (may be fixed or contingent)
