Readings Flashcards
Problems With Screening
- Informality of Exchange within most law firms
- Powerful economic incentive to use info that will help the firm win
- No one outside a firm can every be sure what has happened behind closed doors
Paternalist v. Instrumentalist - Evidence/Defense
Paternalist - actively seek to prevent client from destroying evidence and incriminating himself
Instrumentalist - simply serve as a tool for the client, don’t prevent from destroying documents.
“The Lysistration Prerogative: A Response to Stephen Pepper”
David Luban
- Distinction between the desirability of exercising autonomy and the undesirability of exercising it wrongly - when the exercise of autonomy results in immoral action, problematic for Pepper’s assertion that increasing autonomy is morally good.
- Regards lawyer’s acting as filters as essential to the existence of rule of law - society depends upon informal filters provided by others.
Lawyers autonomy allows him to exercise “Lysistratian prerogative” - to withhold services from those of whose projects he disapproves.
- If everyone can’t have first-class citizenship then no one should - 1st class citizenship creates inequality
Kaufman Article
- Professional rules ought not prevent lawyer from refusing to engage in immoral behavior.
- Ethic of professional responsibility should and does recognize that it is entirely appropriate for the lawyer to refuse amoral role
- Good that advice clients receive depends on the chance oh whom they choose
- When the issue of role arises in a particular situation, it is good lawyers are not given a prepackaged answer
Why Confidentiality? - Pepper
(p. 72 supp.)
So that people can determine whether or not their actions are in violation of the law without having to open themselves up to vulnerability.
Concept of access to confidential analysis as a right - basic fairness and the function of a democracy.
Relations Between Lawyers - Shuchman
Adversarial System (p. 89 supp.)
- Most rules of law are not well-designed for a truth-seeking process
- Expensive, time-consuming and difficult
- Lawyers do not deceive in their profession roles because:
1) Does not represent belief in own statements
2) He intends to persuade or exhort
3) Intention known to listeners and readers
4) No reliance given or expected in his relationship to listeners or readers.
The Search for Truth: An Umpireal View - Frankel
Adversarial System (p. 95 supp)
- Truth is way too far down on the list of functions of litigation and should be moved up.
- Truth and victory often incompatible
- Proposed Rule: a lawyer shall not elicit testimony that leads to a conclusion the lawyer knows to be false & shall report untrue statements to the court and opposing counsel. (p.98 supp).
Frankel’s Search for Truth - Freedman
Criminal Justice Application of Adversarial System
- In free society, dignity of the individual is paramount
- Protection of rights supersedes truth, even when that may cause a distortion of it
The Lawyer’s Trilemma - Freedman
Perjury - (p. 103 supp.) Candor Confidentiality Complete Knowledge You have to know the truth. Why? Because you have to apply it to the law. You have to protect confidences and must show candor to the court. We have a strong tradition that confidences are the primo and at the top and perjury is at the bottom and is the first to give.
In Re Arons: Plight of Unrich in obtaining legal services: Vladeck
- 1 Million Lawyers in the U.S.
- Majority of lawyers in private practice
- Only 6,000 lawyers represent poor people in litigation
- 60-70% of Americans can’t afford lawyers
Price of Law: How Attorney Market Distorts Justice System - Hadfield
- Dual public and service role create conflict in legal profession
- High fees charged are the result of a moral failure of professional obligation to public interest
- Legal market noncompetitive - costs of services determined by value placed on them by consumers - bidding competition
- Three elements supporting structure:
1) complexity of law
2) monopoly of the state
3) unified nature of profession
Seven Definitional Elements: Profession
- Means of making a living
- Specialized knowledge, training, abilities - frequently involving elaborate higher education and apprenticeships
- Needed or necessary - either by individuals or society
- Untestable by layman; untestable by the consumer, patient - buyer is vulnerable
- Monopoly / License
- Self-Governing
- Set of ethics - underlying professional ethic: the client comes first
Wasserstrom: Lawyers as Professionals: Some Moral Issues
Notion: the role you have justifies conduct that might otherwise be unjustifiable. - Role Specific Morality
Amoral role of Attorneys - restrain from effectuating or enacting judgement on clients.
Wasserstroms Four Caveats
- Amoral role succeed only if enormous degree of trust and confidence is justified
- Character traits of lawyers do not mold with system - competitive rather than cooperative - pragmatic rather than principled.
- Lawyers appear to sell integrity - say things they dont think are true, do things they dont think are right.
- Can a good person be a good lawyer? We take on the shape and behavior of the role as a lawyer.
Pepper’s Four Cs
- Communication - 1.2, 1.4, Moral Dialog
- Competence - 1.2, 1.3
- Confidentiality - 1.6
- Conflicts - 1.7, 1.8,1.9, 1.10, 1.11
