Professional Responsibility: Problems of Practice and the Profession

by Crystal, Nathan M.

• ISBN13: 9780735512078
• ISBN10: 0735512078
• Edition: 2nd
• Format: Hardcover
• Copyright: 2000-03-01
• Publisher: Wolters Kluwer

Summary

When Professor Nathan Crystal introduced his new approach to professional responsibility in a concise casebook organized by practice areas that encouraged students to adopt a personal philosophy, he captured the attention of students and instructors alike. Now, In a fully updated Second Edition, PROFESSIONAL RESPONSIBILITY: Problems of Practice And The Profession builds on that successful foundation to provide an engaging and enlightening analysis of the ethical issues unique To The legal profession. Crystal's concise, problem-oriented casebook challenges students to develop a philosopy of lawyering to guide them in resolving difficult questions of professional responsibility. From this framework, he takes a refreshing new look at the traditional course topics of confidentiality, loyalty, limitations on zealousness, and delivery of legal services in the context of: defense and prosecution of criminal cases civil litigation office practice government and public service To keep the book as lively as it is informative, Crystal uses: realistic and engaging problems that demonstrate actual ethical conflicts in practice lucid and concise narrative Model Rules and other standards frequent cross-references New material in PROFESSIONAL RESPONSIBILITY: Problems of Practice And The Profession, Second Edition, includes: a new chapter focusing on ethical issues facing law firms, including supervision of lawyers and other legal personnel, departing attorneys, ancillary business and multidisciplinary partnerships, And The quality of life in law firms. extensive coverage of the ALI's Restatement (Third), The Law Governing Lawyers. -new problems covering competency in criminal defense representation, privilege and work product issues in civil litigation, and electronic commerce topics. -a fully updated discussion of recent cases, statutory developments, and secondary sources.

Table of Contents

Preface	xxv
Acknowledgments	xxix
Restatement Section Conversion Table	xxxvii
Introduction to Professional Responsibility	1	(66)
The Foundations of Professional Responsibility and the Concept of a Philosophy of Lawyering	1	(8)
The Lawyer as Fiduciary	2	(2)
The Lawyer as an Officer of the Court Functioning in an Adversarial System of Justice	4	(1)
The Lawyer as a Person with Personal and Financial Interests	5	(1)
The Concept of a Philosophy of Lawyering	6	(2)
Integrating Personal Values and Professional Lives: Professional Heroes and Villains	8	(1)
Sources of Lawyers' Obligations	9	(26)
Professional Standards: ABA Codes of Ethics, Ethics Advisory Opinions, Specialized Codes, and Practice Norms	10	(6)
Law Governing Lawyers	16	(3)
Moral Principles: Developing the Practice Component of a Philosophy of Lawyering	19	(7)
The Moral Accountability of Lawyers	26	(1)
Must You Be the Devil's Advocate?	27	(2)
Monroe Freedman
Setting the Record Straight on the Defense of John Demjanjuk	29	(3)
Michael Tigar
The Morality of Lawyering	32	(3)
Monroe Freedman
Methods of Regulating Attorney Conduct	35	(32)
Admission to Practice	36	(3)
The Disciplinary System	39	(1)
Reporting Misconduct By Another Lawyer	39	(1)
Duty to report misconduct by another lawyer	40	(3)
Exceptions to the duty to report misconduct by another lawyer	43	(2)
Wisdom of the reporting requirement as a matter of policy	45	(1)
Evaluation of Your State's System of Lawyer Discipline	46	(7)
Civil Liability (Malpractice, Disqualification, and Monetary Sanctions) and Criminal Punishment	53	(4)
Legislation	57	(1)
Developing A Philosophy of Lawyering	58	(1)
Bibliography on the Practice of Law and Selected Biographies of Lawyers	59	(8)
Defense and Prosecution of Criminal Cases	67	(152)
The Client-Lawyer Relationship	68	(24)
Justifications For Defending The Guilty	68	(1)
The Ethics of Advocacy	68	(3)
Charles P. Curtis
Understanding Lawyers' Ethics	71	(1)
Monroe H. Freedman
The Ethics of the Criminal Defense Attorney---New Answers to Old Questions	72	(4)
John B. Mitchell
Miscarriages of Justice in Potentially Capital Cases	76	(2)
Hugo Adam Bedau
Michael L. Radelet
Competency of Defense Counsel and Legal Fees in Criminal Cases	78	(2)
The ethical duty of competency, ineffective assistance of counsel, and malpractice liability of defense counsel	80	(5)
Ethical issues regarding fees in criminal cases	85	(5)
Trust accounts and clinet property	90	(2)
Confidentiality	92	(46)
Information About Unsolved or contemplated Crimes	92	(1)
The ethical duty of confidentiality, the attorney-client privilege, and the work product doctrine	93	(2)
Exceptions to the duty of confidentiality: consent, prevention of harm, and past wrongful conduct	95	(4)
Tort or criminal liability for failure to disclose confidential information to prevent or rectify wrongful conduct	99	(5)
What should be the scope of the duty of confidentiality?	104	(3)
Dealing With Physical Evidence, Fruits, And Instrumentalities Of Crimes	107	(1)
The obligations of lawyers regarding tangible criminal material in their possession	108	(6)
Application of the attorney-client privilege after tangible criminal material is turned over to the authorities	114	(1)
Application of the Fifth Amendment privilege against self incrimination	115	(3)
How should attorneys comply with an obligation to turn tangible criminal material over to the authorities?	118	(2)
Perjury In Criminal Cases	120	(2)
Approaches to the problem of perjury by the criminal defendant	122	(5)
The approach of the Model Rules of Professional Conduct and the Restatement of the Law Governing Lawyers	127	(3)
Client perjury and the constitutional rights to effective assistance of counsel, the privilege against self-incrimination, and due process of law	130	(4)
When does a lawyer ``know'' that a defendant intends to or has committed perjury?	134	(2)
Perjury by witnesses other than criminal defendants	136	(1)
The ethics of the lawyer's ``lecture''	137	(1)
Conflicts of Interest	138	(17)
Defendants With Mental Disabilities	138	(2)
Determining the client's competency	140	(5)
Representing competent but possibly impaired clients	145	(3)
Multiple Representation Of Codefendants	148	(1)
Multiple representation in criminal cases and the Sixth Amendment right to counsel	148	(3)
Deciding whether to undertake multiple representation	151	(4)
Limitations on Litigation Tactics by the Prosecution and by the Defense	155	(58)
Trial Publicity	155	(1)
Interests involved in trial publicity	156	(1)
A brief history of the restrictions on lawyer participation in trial publicity	157	(2)
The constitutionality of Model Rule 3.6: Gentile v. State Bar of Nevada	159	(4)
ABA amendments to Rule 3.6 in 1994	163	(2)
Gag orders	165	(1)
Limitations On Trial Tactics	166	(5)
Improper contacts with jurors and improper methods of jury selection	171	(4)
Duty to disclose adverse facts and law	175	(5)
Dealing with documents and witness examination	180	(3)
Improper argument	183	(1)
Special Duties Of Prosecutors	184	(1)
The prosecutor's ethical obligation to do justice	185	(2)
Disclosure of exculpatory evidence	187	(3)
Prosecutorial discretion	190	(2)
Ex parte communications with defendants	192	(2)
Courtroom misconduct by prosecutors	194	(2)
Should prosecutors be subject to greater regulation?	196	(1)
Fee Forfeiture And Lawyer Supoenas	197	(1)
Money laundering and fee forfeiture	198	(10)
The attorney-client privilege and subpoenas directed at lawyers	208	(5)
Delivery of Legal Services to Indigents in Criminal Cases	213	(6)
Evaluation Of Delivery of Defense Services In Criminal Cases	213	(1)
Methods of delivering defense services	214	(1)
ABA Standards for Providing Defense Services	215	(4)
Ethical Issues in Civil Litigation: The Client-Lawyer Relationship, Confidentiality, and Conflicts of Interest	219	(138)
The Client-Lawyer Relationship	220	(41)
Contingent Fees, Expenses, And Fee Splitting	220	(1)
The ethical obligation to charge reasonable fees	221	(2)
The ethical duty to inform the client of the basis or rate of the fee	223	(6)
Special ethical duties regarding contingent fees	229	(3)
Ethical obligations a regarding expenses	232	(5)
Fee splitting	237	(3)
Engagement And Nonengagement Agreements	240	(1)
Contingent fee agreement	241	(4)
Scope of representation	245	(2)
Allocation of authority between lawyer and client	247	(5)
Termination of the client-lawyer relationship: discharge and withdrawal	252	(5)
Liens	257	(3)
The client's file	260	(1)
Confidentiality	261	(10)
The Ethical Duty Of Confidentiality, The Attorney-Client Privilege, And The Work Product Doctrine	261	(1)
Confidentiality and the use of e-mail, faxes, and cellular telephones	262	(3)
Scope and exceptions to the attorney-client privilege	265	(3)
Scope and exceptions to the work product doctrine	268	(2)
Internal investigations: scope of the attorney-client privilege	270	(1)
Conflicts of Interest	271	(86)
Representation Against Current Clients	271	(3)
Representation of one client against another client in a single matter and in unrelated matters	274	(4)
Determining who is a current client	278	(2)
Determining who is a current client in ``entity'' representation cases	280	(4)
Positional conflicts	284	(2)
Consentable conflicts	286	(3)
Consent: validity of prospective waivers	289	(2)
Representation Against Former Clients	291	(1)
Origin and justification for the substantial relationship test	292	(2)
Application of the substantial relationship test	294	(5)
Appearance of impropriety as a basis for disqualification	299	(2)
Imputation Of Disqualification	301	(1)
The imputation principle	301	(1)
Imputed disqualification and movement between firms	302	(2)
Imputed disqualification and ``screening'' of disqualified lawyers	304	(3)
Imputation when a disqualified lawyer leaves a firm	307	(1)
Advocate-Witness Conflicts Of Interest	308	(1)
The advocate-witness rule under the Code of Professional Responsibility	309	(2)
Rationales for the advocate-witness rule	311	(2)
The advocate-witness rule under the Model Rules: scope and exceptions	313	(5)
Avoiding advocate-witness conflicts during investigation	318	(1)
Simultaneous Representation Of Plaintiffs In Tort Cases	319	(1)
Simultaneous representation of clients in a single matter	320	(1)
Simultaneous representation of coparties in tort litigation	321	(2)
Informed consent to simultaneous representation	323	(3)
Conflicts of interest in class actions	326	(1)
Insurance Defense Practice	327	(2)
Relationship between insured, insurance company, and defense counsel	329	(3)
Dealing with conflicts of interest between insured and insurer	332	(3)
The most common failing of defense counsel: protecting the interests of the insurer over the insured	335	(2)
The possibility of a one-client model	337	(2)
Emerging conflicts of interest	339	(1)
Family Practice	340	(2)
Is multiple representation of spouses per se improper?	342	(2)
When is simultaneous representation ethically proper?	344	(5)
An alternative to simultaneous representation: representation of one party with the other party being unrepresented	349	(2)
Third-party control	351	(1)
Representation of clients with diminished capacity	351	(4)
Other ethical problems in family practice	355	(2)
Ethical Issues in Civil Litigation: Limitations on Zealous Representation, Alternative Dispute Resolution, and Delivery of Legal Services	357	(130)
Commencement of Actions, Investigation, and Discovery	358	(49)
Frivolous Claims	358	(1)
Frivolous actions and delay: ethical duties and discovery sanctions	359	(6)
Criticism of Rule 11, the 1993 amendment, and the Private Securities Litigation Reform Act of 1995	365	(2)
Tort liability of attorneys for frivolous actions	367	(3)
Investigative contacts with potential witnesses or potential defendants prior to filing suit	370	(2)
Investigation: Contacts With Employees	372	(1)
Prohibition of communication with a party represented by counsel in general	373	(2)
Application of the prohibition on communications with an opposing party to current employees of corporate parties	375	(6)
Application of the prohibition on communications with an opposing party to former employees of corporate parties	381	(2)
Other applications of Rule 4.2: settlement offers, expert witnesses, and treating physicians	383	(2)
Investigation: Secret Tape Recording And Inadvertent Disclosures	385	(1)
Legality of secret tape recording	386	(1)
The ethical propriety of participation by lawyers in secret tape recording that is not illegal	387	(3)
Counseling or assisting a client in secret tape recording	390	(1)
Inadvertent disclosures of confidential information	391	(2)
Discovery: Interrogatories, Document Production, And Depositions	393	(2)
The problem of discovery abuse	395	(1)
Discovery abuse in connection with interrogatories and requests for production of documents	396	(3)
Discovery abuse in deposition practice	399	(4)
Techniques for dealing with discovery abuse	403	(4)
Alternative Dispute Resolution	407	(33)
Negotiation	407	(2)
Honesty in negotiation: the duty not to engage in misrepresentation	409	(4)
Honesty in negotiation: the duty of disclosure	413	(5)
Fairness of the settlement	418	(1)
Improper threats	419	(3)
Approaches to negotiation	422	(3)
Mediation and Arbitration	425	(1)
Alternative dispute resolution in general	426	(2)
Ethical obligations of lawyers to advise clients regarding ADR	428	(6)
Ethical obligations of lawyers serving as mediators and arbitrators	434	(6)
Delivery of Legal Services in Civil Cases	440	(47)
Advertising and Solicitation	440	(1)
Law Firm Marketing Practices	440	(5)
Basic constitutional principles governing regulation of lawyer advertising	445	(3)
Basic constitutional principles governing regulation of in-person solicitation by lawyers	448	(4)
Application and development: targeted advertising, direct mail advertising, and false or misleading communications	452	(8)
Marketing on the Internet	460	(3)
Group Legal Services	463	(4)
Restrictions on the Unauthorized Practice of Law	467	(1)
Regulation Of The Unauthorized Practice Of Law	467	(1)
History and policy of restrictions on the unauthorized practice of law	467	(4)
Approaches to regulation of nonlawyer practice	471	(2)
Application of restrictions on unauthorized practice to out-of-state lawyers	473	(2)
Delivery of Legal Services to Indigents in Civil Cases	475	(1)
Mandatory Pro Bono And Delivery Of Legal Services To Indigents	475	(1)
Constitutional right to appointed counsel in civil cases	476	(2)
Legal services programs	478	(3)
The Marrero Committee Report	481	(1)
Justifications and criticisms of mandatory pro bono	482	(5)
Ethical Issues in Office Practice	487	(80)
Business and Securities Practice	488	(30)
Lawyers As Intermediaries, Investors, And Board Members	488	(1)
``lawyer for the situation''	489	(1)
Louis D. Brandeis
Representation of multiple parties in business transactions under the Code of Professional Responsibility and the Model Rules of Professional Conduct	490	(4)
Conflicts of interest resulting from lawyers' ownership of interests in their clients' businesses	494	(2)
Conflicts of interest resulting from service on the boards of directors of clients	496	(2)
Fraud By Clients In Business Transactions	498	(2)
The tension between ethics and law on the issue of client fraud	500	(1)
Ethical and legal obligations of lawyers not to counsel or assist clients in fraud	501	(4)
Ethical and legal obligations of lawyers to prevent fraud by actions other than disclosure of the fraud to third parties	505	(5)
Controversy over whether lawyers should have an ethical obligation to disclose confidential information to prevent or rectify client fraud	510	(6)
Civil liability for failing to disclose client fraud	516	(2)
Specialized Areas of Office Practice	518	(49)
Real Estate Practice	518	(2)
The role of attorneys and conflicts of interest in real estate transactions	520	(7)
Unauthorized practice of law issues in real estate transactions	527	(4)
Trust account management and disbursement of funds at real estate closings	531	(2)
Estate Planning And Probate Practice	533	(3)
The Model Rules and ethical issues facing lawyers engaged in estate planning and administration	536	(1)
Conflicts of interest and confidentiality in estate planning	537	(4)
Bequests to lawyers and wills that name the drafting lawyer as fiduciary	541	(4)
Ethical problems in estate administration: conflicts of interest, confidentiality, fees, and supervision of nonlawyers	545	(7)
Tax Practice	552	(3)
Advising clients with regard to tax return positions	555	(5)
Third-party opinions regarding tax matters and other issues	560	(5)
Other ethical obligations in tax practice	565	(2)
Lawyers in Public Service: Judges, Government Attorneys, and Public Interest Lawyers	567	(60)
Judicial Ethics	568	(28)
Judges In Their Official Capacities	568	(1)
Regulation of judicial conduct: Standards and procedure	569	(3)
Disqualification of judges because of personal involvement or interest in matters	572	(2)
Disqualification of judges based on relationships with persons interested in the matter	574	(1)
Disqualification of federal judges	575	(7)
Waiver or remittal of disqualification	582	(1)
Ex parte contacts	582	(2)
Extrajudicial Conduct And Judicial Selection	584	(1)
Limitations on judges' extrajudicial activities	585	(6)
Methods of judicial selection and the problem of judicial independence	591	(4)
Judges and political activity	595	(1)
Representation of the Public Interest	596	(31)
Government Attorneys	596	(1)
The role of the government lawyer and the duty to seek justice	597	(7)
Confidentiality of information: government attorneys and wrongdoing by government officials	604	(4)
The ``revolving door'': movement of lawyers into and out of government practice	608	(6)
Public Interest Practice	614	(2)
The history and meaning of public interest law	616	(1)
Oliver A. Houck, With Charity for All	616	(5)
Ethical problems facing public interest lawyers	621	(6)
Special Ethical Problems of Law Firms	627	(30)
Regulation Within Firms	627	(6)
The Duty To Supervise	627	(1)
Supervisory principles	628	(4)
Regulation of sexual relationships between lawyers and clients, other lawyers, and nonlawyers	632	(1)
Organizational Form, Departing Lawyers, and Sale of a Practice	633	(14)
Legal Structures	633	(3)
Covenants Not to Compete and Other Restrictions on Departures from Firms	636	(1)
Law Firm Organization And Breakups	636	(8)
Sale of a Law Practice	644	(3)
Ancillary Businesses and Multidisciplinary Practice	647	(6)
Ancillary Businesses	647	(2)
Multidisciplinary Practice	649	(1)
Practicing With Nonlawyers	650	(3)
Quality of Life in Law Firms	653	(4)
Discrimination And Related Issues	655	(2)
Table of Cases	657	(10)
Table of Model Rules and Other Standards	667	(10)
Tables of Articles, Books, and Reports	677	(20)
Index	697