Problems in Professional Responsiblity for a Changing Profession

by Kaufman, Andrew L.; Wilkins, David B.

• ISBN13: 9780890896051
• ISBN10: 0890896054
• Edition: 4th
• Format: Hardcover
• Copyright: 2002-07-01
• Publisher: Carolina Academic Pr

Table of Contents

Cases in Text	xvii
Authorities in Text	xix
Table of Cases	xxi
Table of Authorities	xxix
Preface to the Fourth Edition	xliii
Acknowledgments	xlv
Introduction	li
The Profession-An Introduction	3	(28)
Wasserstrom, Lawyers as Professionals: Some Moral Issues	4	(10)
Problem 1-1	14	(1)
Problem 1-2	14	(1)
Note: The Governing Rules of Professional Responsibility	15	(3)
Professional Ideology and the Implications for Legal Ethics	18	(13)
Wilkins, Everyday Practice is the Troubling Case	19	(4)
Note: Regulating the Legal Profession	23	(3)
Problem 1-3	26	(5)
Representation of Conflicting Interests	31	(104)
Simultaneous Representation-Opposing a Current Client	33	(44)
Problem 2-1	33	(1)
Problem 2-2	33	(1)
Problem 2-3	34	(1)
Problem 2-4	34	(1)
The General Rule	35	(4)
United States v. Gellene	39	(8)
Simultaneously Representing and Opposing a Client in Litigation	47	(1)
IBM v. Levin	48	(7)
Stratagem Development Corp. v. Heron Int'l, N.V	55	(6)
Simultaneously Representing and Opposing Affiliated Companies	61	(1)
Problem 2-5	61	(3)
Joint Representation of an Entity and Its Employees	64	(1)
Problem 2-6	64	(2)
In re Merrill Lynch, Pierce, Fenner & Smith, Inc.	66	(7)
Simultaneously Representing and Opposing a Client in Transactional Matters	73	(1)
Problem 2-7	73	(1)
Problem 2-8	73	(1)
Problem 2-9	74	(3)
Successive Representation-Opposing a Former Client	77	(22)
Problem 2-10	77	(2)
Analytica, Inc. v. NPD Research, Inc.	79	(6)
Maritrans v. Pepper, Hamilton & Scheetz	85	(9)
Problem 2-11	94	(1)
Brennan's, Inc. v. Brennan's Restaurants, Inc.	95	(4)
Vicarious Disqualification	99	(36)
The General Rule	99	(1)
Problem 2-12	99	(1)
Steel v. General Motors Corporation	100	(16)
Problem 2-13	116	(2)
Former Government Lawyers and Vicarious Disqualification	118	(1)
Problem 2-14	118	(1)
Note: Problems of Government Employees and Vicarious Disqualification	119	(3)
Davis v. Southern Bell Tel. & Tel. Co.	122	(6)
Vicarious Disqualification-More Developments in the Private Context	128	(1)
Analytica, Inc. v. NPD Research, Inc.	129	(6)
The Obligation of Confidentiality	135	(84)
The General Rule	135	(6)
Purcell v. District Attorney for the Suffolk District	137	(4)
Revealing the Announced Intention to Commit a Crime	141	(8)
Problem 3-1	144	(1)
Problem 3-2	144	(1)
Problem 3-3	144	(1)
Problem 3-4	145	(1)
Problem 3-5	145	(1)
Problem 3-6	145	(1)
Problem 3-7	146	(1)
Problem 3-8	147	(1)
Problem 3-9	148	(1)
Perjury and Mandatory Disclosure of Client Confidences	149	(37)
Problem 3-10	149	(1)
Freedman, The Perjury Trilemma	150	(10)
Frankel, The Search for Truth	160	(9)
A Note on the Model Rules	169	(1)
Nix v. Whiteside	170	(10)
ABA Formal Opinion 87-353	180	(6)
Other Aspects of Perjury and Confidentiality	186	(4)
Preparing Testimony or Inducing a Client to Commit Perjury	186	(1)
Problem 3-11	186	(1)
Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions	187	(3)
Past Crime or Fraud	190	(5)
Problem 3-12	190	(1)
Problem 3-13	191	(1)
ABA Formal Opinion 87-353	191	(1)
Problem 3-14	192	(1)
Problem 3-15	192	(3)
Past Acts with Future Harmful Consequences: ``Continuing'' Crime or Fraud	195	(9)
Problem 3-16	195	(1)
Problem 3-17	196	(1)
Problem 3-18	196	(1)
Problem 3-19	196	(1)
Note: The Model Rules and Past Acts with Future Harmful Consequences	197	(2)
Nelson, Ethical Dilemma: Should Lawyers Turn in Clients?	199	(4)
Problem 3-20	203	(1)
Disclosure of Confidences to Collect a Fee or in Self Defense	204	(5)
Problem 3-21	204	(1)
Meyerhofer v. Empire Fire & Marine Ins. Co.	204	(4)
Note: Lawyers and the ``Obligation'' to Commit Contempt	208	(1)
Confidences Among Coclients	209	(10)
Problem 3-22	210	(1)
A. v. B. v. Hill Wallack	210	(9)
The Literature of Confidentiality and the Adversary System	219	(60)
Pepper, The Lawyer's Amoral Ethical Role	219	(15)
Luban, The Lysistratian Prerogative	234	(7)
Kaufman, A Commentary on Pepper	241	(4)
Goldman, The Moral Foundations of Professional Responsibility	245	(4)
Carr, Is Business Bluffing Legal?	249	(7)
Fischel, Lawyers and Confidentiality	256	(10)
Simon, Should Lawyers Obey the Law?	266	(7)
Wilkins, In Defense of Law and Morality	273	(6)
The Lawyer's Responsibility to Some Special Clients	279	(86)
The Lawyer for the Corporation	279	(34)
Problem 5-1	279	(1)
Problem 5-2	280	(1)
Problem 5-3	280	(2)
In re Carter and Johnson	282	(9)
Simon, The Kaye Scholer Affair	291	(14)
Wilkins, Do Clients Have Ethical Obligations to Lawyers?	305	(8)
The Government Lawyer	313	(18)
Problem 5-4	313	(1)
Problem 5-5	314	(1)
Problem 5-6	315	(1)
In re Lindsey	315	(16)
A Piece of History-Watergate	331	(1)
The Client Under a Disability	331	(10)
Problem 5-7	331	(1)
Problem 5-8	332	(2)
Mickenberg, The Silent Clients	334	(2)
Stone, The Myth of Advocacy	336	(5)
The Lawyer in a Mediation Setting	341	(11)
Problem 5-9	341	(1)
Menkel-Meadow, Professional Responsibility for Third-Party Neutrals	342	(5)
Poly Software International, Inc. v Su	347	(5)
Class Actions and Conflicts of Interest for Counsel	352	(13)
Problem 5-10	352	(1)
Rhode, Class Conflicts in Class Actions	352	(7)
Koniak, Feasting While the Widow Weeps	359	(6)
Some Special Office and Court Issues	365	(62)
The Prosector's Discretion	365	(13)
Problem 6-1	365	(1)
Problem 6-2	365	(1)
Problem 6-3	366	(1)
Uviller, The Neutral Prosecutor	367	(11)
Investigation: Possession of Tangible Evidence by a Lawyer	378	(6)
Problem 6-4	378	(1)
Morrell v. State	379	(5)
Destruction of Evidence	384	(4)
Problem 6-5	384	(1)
Testimony of Gordon Strachan	384	(4)
Investigation: Talking with a ``Party''	388	(11)
Rule 4.2 and Civil Cases	388	(1)
Problem 6-6	388	(1)
Problem 6-7	388	(1)
Hurley v. Modern Continental Construction Company, Inc.	389	(4)
Rule 4.2 and Criminal Cases	393	(1)
Problem 6-8	393	(2)
United States ex rel. O'Keefe v. McDonnell Douglas Corporation	395	(4)
Litigation Tactics	399	(10)
Problem 6-9	399	(1)
Keeton, Trial Tactics and Methods	399	(8)
In re Beiny	407	(2)
Negotiations and Plea Bargaining	409	(18)
Problem 6-10	409	(1)
Problem 6-11	409	(1)
Problem 6-12	410	(1)
Problem 6-13	410	(1)
Rubin, A Causerie on Lawyers' Ethics in Negotiation	411	(7)
White, Ethical Limits on Lying in Negotiation	418	(6)
Problem 6-14	424	(3)
Some Additional Problems of Lawyers' Special Obligations to the Court, the Profession, and Society	427	(66)
The Obligation to Represent an Unpopular Client	427	(17)
The Lawyer and his Clients: Correspondence of Messrs. David Dudley and Dudley Field of the New York Bar, with Mr. Samuel Bowles, of the Springfield Republican	428	(10)
Wilkins, Race, Ethics, and the First Amendment	438	(6)
The Obligation to Give ``Nonlegal'' Advice	444	(5)
Problem 7-1	444	(1)
Problem 7-2	445	(1)
Krash, Professional Responsibility to Clients and the Public Interest: Is There a Conflict?	445	(4)
Lawyers and Their Own Speech and Conduct	449	(21)
Problem 7-3	449	(1)
Gentile v. State Bar of Nevada	450	(10)
Problem 7-4	460	(1)
Ruggieri v. Johns-Manville Products Corp.	461	(6)
Note: The Integrated Bar and Lawyer Freedom	467	(3)
Civility	470	(6)
Paramount Communications v. QVC Network	470	(6)
Whistleblowing on Other Lawyers	476	(17)
Problem 7-5	476	(1)
Problem 7-6	477	(1)
Problem 7-7	477	(1)
Problem 7-8	477	(1)
Massachusetts Committee on Professional Ethics Opinion 99-2	477	(4)
Bohatch v. Butler & Binion	481	(12)
Some Special Problems of Access to Legal Services	493	(52)
Fees	493	(21)
Problem 8-1	493	(1)
Problem 8-2	494	(1)
Problem 8-3	494	(1)
Problem 8-4	494	(3)
In the Matter of Fordham	497	(8)
Prandini v. National Tea Co.	505	(6)
Note: Conflict Between Lawyer and Client with Respect to Fees	511	(1)
Note: A Watergate Fee Problem	512	(1)
Testimony of Anthony Ulasewicz	512	(2)
Advertising and Solicitation	514	(31)
Problem 8-5	514	(1)
Problem 8-6	515	(1)
Problem 8-7	515	(1)
Problem 8-8	515	(1)
Note: A Few Generalities	515	(3)
Ohralik v. Ohio State Bar Association	518	(7)
In re Primus	525	(11)
Note: The Aftermath of Bates, Ohralik, and Primus	536	(9)
Access to Legal Services	545	(52)
Programs for Non-Paying Clients	545	(41)
Problem 9-1	546	(1)
Legal Aid	546	(1)
The OEO Legal Services Program and the Legal Services Corporation	547	(1)
Cramton, Crisis in Legal Services for the Poor	547	(10)
Kaufman & Singsen, Legal Services in the 1980s	557	(4)
Public Interest Law	561	(1)
Problem 9-2	561	(1)
Problem 9-3	561	(1)
Problem 9-4	561	(1)
Hegland, Beyond Enthusiasm and Commitment	562	(10)
Problem 9-5	572	(3)
Some Specific Problems of Professional Responsibility in the Provision of Legal Services	575	(1)
Problem 9-6	575	(1)
Problem 9-7	576	(1)
Problem 9-8	577	(1)
Castro v. Los Angeles County Board of Supervisors	578	(6)
Problem 9-9	584	(2)
Programs for Paying Clients	586	(11)
A Survey of the Scene	586	(4)
Heid & Misulovin, The Group Legal Plan Revolution	590	(7)
Who May Practice Law	597	(76)
Admission to the Bar	597	(20)
Problem 10-1	597	(1)
Problem 10-2	598	(1)
Problem 10-3	598	(1)
Problem 10-4	599	(1)
Problem 10-5	599	(1)
Problem 10-6	599	(2)
Schware v. Board of Bar Examiners	601	(1)
Konigsberg v. State Bar	602	(1)
Application of Gahan	602	(6)
Matter of Ronwin	608	(9)
The Unauthorized Practice of Law	617	(52)
Problem 10-7	617	(1)
Florida Bar v. Brumbaugh	618	(7)
Problem 10-8	625	(1)
Problem 10-9	626	(1)
Birbrower v. Superior Court of Santa Clara County	626	(11)
Problem 10-10	637	(1)
ABA Commission on Multidisciplinary Practice, Report to the House of Delegates	637	(14)
Statement of Kathryn A. Oberly	651	(5)
Testimony of Sydney M. Cone, III	656	(11)
Trubek & Farnham, Social Justice Collaboratives	667	(2)
The Future of MDPs	669	(4)
Competence, Malpractice, and Discipline	673	(48)
Competence	673	(4)
Malpractice	677	(17)
Procanik v. Cillo (1985)	677	(8)
Procanik v. Cillo (1988)	685	(3)
Angel, Cohen & Rogovin v. Oberon Investment, N.V	688	(1)
Note: The Disciplinary Rules, Standards of Malpractice, and Rule 11	689	(5)
Discipline	694	(27)
Problem 11-1	694	(1)
Problem 11-2	695	(1)
Problem 11-3	695	(1)
Problem 11-4	695	(1)
Note: Disciplinary Rules-Problems of Generality	696	(2)
Wajert v. State Ethics Commn.	698	(5)
Spevack v. Klein	703	(7)
Schneyer, Professional Discipline For Law Firms?	710	(11)
Professional Responsibility and the Judicial System	721	(30)
Problem 12-1	721	(1)
Problem 12-2	722	(1)
Problem 12-3	723	(1)
Problem 12-4	723	(1)
Problem 12-5	723	(1)
Problem 12-6	724	(4)
In re Boston's Children First	728	(7)
Liljeberg v. Health Services Acquisition Corp.	735	(7)
In re Mandeville	742	(1)
In re Gridley	743	(3)
Kaufman, Judicial Ethics: The Less-08en Asked Questions	746	(2)
Note: Public Exposure of Disciplinary Reference by Judges	748	(3)
Demographics, Institutions, and Professional Identity: The American Legal Profession at the Dawn of the Twenty-First Century	751	(98)
An Overview of the Modern Legal Profession	752	(18)
Carson, The Lawyer Statistical Report	752	(1)
Clark, Why So Many Lawyers?	753	(3)
Chambliss, Progress of Minorities in the Legal Profession	756	(1)
New York State Bar, Preserving the Core Values of the American Legal Profession	757	(2)
Heinz and Laumann, Chicago Lawyers	759	(2)
Heinz, Laumann, Nelson & Michelson, The Changing Character of Lawyers' Work	761	(2)
Hadfield, The Price of Law	763	(5)
Galanter, The Coming Demographic Transformation of the Legal Profession	768	(2)
The Transformation of Corporate Legal Practice	770	(46)
Galanter & Palay, Why the Big Get Bigger	776	(2)
Wilkins & Gulati, Reconceiving the Tournament of Lawyers	778	(9)
Wilkins & Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms?	787	(11)
Wilkins, Partners Without Power?	798	(1)
Epstein, et. al., Glass Ceilings and Open Doors	799	(6)
Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession	805	(4)
Kronman, The Lost Lawyer	809	(7)
The Individual Hemisphere	816	(14)
Seron, The Business of Practicing Law	817	(3)
Daniels & Martin, Tort Reform, Mass Culture, and Plaintiffs' Lawyers	820	(2)
Coffee, Jr., Understanding the Plaintiff's Attorney	822	(3)
Erichson, Informal Aggregation	825	(5)
What Difference Will Difference Make?	830	(19)
Problem 13-1	830	(1)
Problem 13-2	831	(1)
Problem 13-3	831	(1)
Problem 13-4	832	(1)
Problem 13-5	832	(1)
Problem 13-6	833	(1)
Problem 13-7	833	(3)
Wilkins, Beyond ``Bleached Out'' Professionalism	836	(3)
Menkel-Meadow, Portia Redux	839	(1)
Allegretti, Lawyers, Clients, and Covenant	840	(3)
Clark, The Coming Together of the Common Law and Civil Law	843	(6)
Some Final Thoughts	849	(38)
Kaufman, Who Should Make the Rules Governing Professional Conduct in Federal Matters	849	(6)
Smith, Should Lawyers Listen to Philosophers	855	(6)
Wilkins, Professional Ethics for Lawyers and Law Schools	861	(7)
A Note on Legal Education	868	(3)
Concluding Thoughts	871	(16)
A Final Note on Codes and Rules	871	(9)
A Final Note on the Future (or Futures) of Legal Practice	880	(2)
A Final Note on the Lawyer's Role	882	(5)
Index	887