《MODERN LFGAL ETHICS》

PART ONE.LAWYERS AND THE LEGAL PROFESSION1

1.The World of Lawyers1

2. Regulation of Lawyers and the Legal Profession20

3. Professional Discipline of Lawyers79

PART TWO.LAWYERS AND CLIENTS145

4.The Client-Lawyer Relationship145

5. Lawyer Competence185

6. Lawyers as Client Confidants242

7. Conflict of Interest312

8. Special Conflicts of Interest Topics410

9. Client-Lawyer Contracts495

PART THREE.THE ROLE OF LAWYERS563

10.The Adversary System563

11. Laywers as Advocates593

12. Lawyer Forensics619

13. Lawyers as Counselors687

PART FOUR.DELIVERY OF LEGAL SERVICES771

14.The Need for a Lawyer771

15. The Right to Practice Law824

16. Forms and Funding of Law Practice875

Appendix A.WESTLAW References955

TABLE OF CASES967

TABLE OF MODEL CODE OF PROFESSIONAL RESPONSIBILITY1061

TABLE OF MODEL RULES OF PROFESSIONAL CONDUCT1069

TABLE OF CANONS OF PROFESSIONAL ETHICS1077

TABLE OF ABA STANDARDS1079

TABLE OF ABA ETHICS COMMITTEE OPINIONS1081

INDEX1083

PART ONE.LAWYERS AND THE LEGAL PROFESSION1

CHAPTER ONE.THE WORLD OF LAWYERS1

1.1Lawyers1

1.2 Lawyers in Other Countries4

1.3 History of the Legal Profession7

1.4Lawyer Demography8

1.4.1 Statistical Profile of Lawyers8

1.4.2 Minorities in Law9

1.4.3 Women in Law11

1.5 Law as a Profession14

1.6 Officer of the Court17

CHAPTER TWO.REGULATION OF LAWYERS AND THE LEGAL PROFESSION20

2.1The Forms of Lawyer Regulation20

2.2 Inherent Powers of Courts to Regulate Lawyers22

2.2.1The Inherent Powers of Courts22

2.2.2 Traditional Powers of Courts24

2.2.3 Negative Inherent Powers27

2.2.4 Regulation by Trial Courts31

2.2.5 Federal Judicial and Legislative Regulation32

2.3 Bar Organizations33

2.4Bar Regulation and National Antitrust Policy38

2.4.1 Application of Federal Antitrust Laws38

2.4.2 State Action and State Autonomy42

2.5 External Review of Bar Regulation45

2.6The Lawyer Codes48

2.6.1 The Purpose and Function of Lawyer Codes48

2.6.2 The 1908 ABA Canons of Ethics53

2.6.3 1969 ABA Code of Professional Responsibility56

2.6.4 1983 ABA Model Rules of Professional Conduct60

2.6.5 California Rules of Professional Conduct64

2.6.6 Ethics Committees and Opinions65

2.7Ethics and Moral Philosophy68

2.7.1 The Place of Ethics68

2.7.2 An Outline of Theories of Ethics70

2.7.3 Morality in Social Systems： Lawyer Role Morality76

CHAPTER THREE.PROFESSIONAL DISCIPLINE OF LAWYERS79

3.1The Philosophy of Lawyer Discipline79

3.2 Disciplinary Agencies and Structure82

3.3Grounds for Discipline85

3.3.1 Standards of Discipline85

3.3.2 Lawyer Crimes90

3.3.3 Noncriminal Acts95

3.3.4 Lawyers in Nonlawyer Roles97

3.4Disciplinary Procedure99

3.4.1 The Formalization of Disciplinary Procedures99

3.4.2 Initiating Discipline100

3.4.3 Responding to Disciplinary Charges103

3.4.4 The Hearing Process106

3.4.5 Review111

3.4.6 Reciprocal Discipline115

3.5Disciplinary Sanctions117

3.5.1 The Process of Determining Sanctions117

3.5.2 Disciplinary Sanctions119

3.5.3 Reprimand126

3.5.4 Suspension or Disbarment128

3.5.5 Reinstatement132

3.5.6 Restitution135

3.5.7 Other Sanctions139

3.6Discipline in Other Forums142

3.6.1 Federal Court Discipline142

3.6.2 Discipline in Administrative Agencies143

PART TWO.LAWYERS AND CLIENTS145

CHAPTER FOUR.THE CLIENT-LAWYER RELATIONSHIP145

4.1Loyalty： Lawyers as Fiduciary Agents145

4.2 A Lawyer’s Authority148

4.3 Client-Lawyer Autonomy154

4.4 Incompetent Clients159

4.5 Communications With Clients163

4.6Settlements and Waivers of Client Rights166

4.6.1 Procedural Forfeitures166

4.6.2 Settlement Authority168

4.6.3 Waivers173

4.7 Advice of Counsel173

4.8 Client Funds and Property175

CHAPTER FIVE.LAWYER COMPETENCE185

5.1Definition and Regulation of Competence185

5.2 Legal Education193

5.3 Bar Examinations198

5.4 Postprofessional Education， Training， and Certification200

5.5 Specialization203

5.6Legal Malpractice and Other Performance-Based Liabili-ties of Lawyers206

5.6.1 The Scope of Lawyer Liability to Clients206

5.6.2 Standards of Lawyer Liability for Malpractice209

5.6.3 Proximate Causation and Damages in Legal Mal-practice218

5.6.4 Lawyer Liability to Nonclients for Negligence223

5.6.5 Intentional Wrongs of Lawyers227

5.6.6 Vicarious Liability235

5.6.7 Limiting Liability238

5.6.8 Legal Malpractice Insurance240

CHAPTER SIX.LAWYERS AS CLIENT CONFIDANTS242

6.1The Confidentiality Principle242

6.1.1 Legal and Professional Protection of Confidentiali-ty242

6.1.2 History of the Attorney-Client Privilege242

6.1.3 Policy Behind the Privilege243

6.1.4 Critiques of the Privilege243

6.2Confidentiality and the Constitution248

6.2.1 Scope of the Claims for Constitutional Protection248

6.2.2 Fourth Amendment248

6.2.3 Fifth Amendment249

6.2.4 Sixth Amendment250

6.3The Attorney-Client Privilege250

6.3.1 General250

6.3.2 Client Advice-Seeker251

6.3.3 Partisan Lawyer252

6.3.4 Invoking the Privilege253

6.3.5 Client-Communicated Information257

6.3.6 Client as the Communicative Source262

6.3.7 Confidential Setting264

6.3.8 Lawyer or Lawyer’s Agent as Recipient267

6.4Confidentiality Waivers， Exceptions， and Extensions268

6.4.1 General268

6.4.2 Client Consent268

6.4.3 Defective Assertion of the Privilege269

6.4.4 Post-Communication Disclosure to Third Persons269

6.4.5 Inadvertent Disclosure272

6.4.6 Partial Disclosure273

6.4Confidentiality Waivers， Exceptions， and Extensions— Continued273

6.4.7 Putting Legal Assistance Into Issue273

6.4.8 Coclient Rule274

6.4.9 Pooled Information276

6.4.10 The Crime-Fraud Exception279

6.5Corporate and Other Entity Clients283

6.5.1 General283

6.5.2 History of the Corporate Privilege283

6.5.3 Rationale of the Corporate Privilege283

6.5.4 Scope of the Corporate Privilege284

6.5.5 Corporate Fiduciary Exception288

6.5.6 Governmental Clients and the Privilege289

6.6Lawyer Work Product292

6.6.1 Background292

6.6.2 Scope of Work Product293

6.6.3 Work Product and the AttorneyClient Privilege295

6.7Duties of Lawyers Under the Confidentiality Principle296

6.7.1 The Confidentiality Principle296

6.7.2 The Confidentiality Principle Under the Lawyer Codes297

6.7.3 The Rationale for ？Secret” Protection299

6.7.4 Public Information as a Secret301

6.7.5 Lawyer Use or Revelation of Client Information303

6.7.6 Lawyer Self-Dealing in Client Information304

6.7.7 Authorized Use of Client Information306

6.7.8 Lawyer Self-Defense and Self-Interest307

CHAPTER SEVEN. CONFLICT OF INTEREST312

7.1Differing Interests of Lawyer and Client312

7.1.1 Conflicts of Interest in Law Practice312

7.1.2 History of Conflict of Interest Rules314

7.1.3 Conflict Principles and Competing Interests316

7.1.4 Appearances of Impropriety319

7.1.5 Standards for Conflict Identification323

7.1.6 Persons Burdened and Protected by Conflict Rules324

7.1.7 Conflict Remedies and Procedures328

7.2Client Consent to Conflicts337

7.2.1 General337

7.2.2 Consentable Conflicts： Theory and the Rules339

7.2.3 Consentable Conflicts： Reasonably Adequate Rep-resentation341

7.2.4 Informed and Voluntary Consent343

7.3Conflicts in Simultaneous Representations349

7.3.1 Principles and Professional Rules349

7.3.2 Adverse Parties in Contemporaneous Litigation350

7.3.3 Coparties in Litigation352

7.3.4 Nonlitigation Simultaneous Representation356

7.4Former-Client Conflicts of Interest358

7.4.1 General358

7.4.2 Principles and Professional Rules359

7.4.3 Differing Interests and Substantial Relationships366

7.5Conflicts of Advocate-Witnesses375

7.5.1 Difficulties of the Dual Role375

7.5.2 Developments Under the Professional Rules375

7.6Imputed Disqualification391

7.6.1 General391

7.6.2 Principles and Professional Rules391

7.6.3 Workings of Imputed Disqualification Doctrine396

7.6.4 Screening as an Alternative to Imputed Disquali-fication401

7.6.5 Government and Other Nonprofit Law Offices404

7.6.6 Spousal and Family Communities of Interest407

CHAPTER EIGHT.SPECIAL CONFLICTS OF INTEREST TOPICS410

8.1General410

8.2Conflicts of Interest in Criminal Cases410

8.2.1 The Right-to-Counsel Dimension in Criminal De- fense Conflicts410

8.2.2 Settings of Criminal Case Conflicts411

8.2.3 Constitutional Conflicts Doctrine413

8.2.4 Client Waiver or Consent416

8.2.5 Prosecutor Motions to Disqualify Defense Lawyers420

8.3Corporate and Other Entity Conflicts421

8.3.1 Cooperation and Discord in Intracorporate Rela- tions421

8.3.2 The Entity Representation Doctrine421

8.3.3 Lawyer as Director or Investor424

8.3.4 Shareholder Derivative Actions425

8.3.5 Unincorporated Associations427

8.4Indemnity Insurance Conflicts428

8.4.1 Insurance Defense Practice428

8.4.2 The Dual-Client Doctrine429

8.4.3 Special Problem Settings430

8.5 Buyer-Seller Conflicts of Interest434

8.6 Conflicts of Interest in Divorce Representation435

8.7Lawyers as Mediators438

8.7.1 Lawyers in the Mediation Process438

8.7.2 Client Consultation439

8.7.3 Workability Requirement440

8.7.4 Limitations on a Lawyer’s Role as Mediator441

8.8Conflicts Due to Third-Party Control443

8.8.1 General443

8.8.2 Third-Party Fee Payment443

8.8.3 Legal Advocacy Organizations446

8.8.4 Lawyer Control by Other Lawyers448

8.9Government Lawyers’ Conflicts of Interest448

8.9.1 General448

8.9.2 Government Lawyer Models and Roles449

8.9.3 Simultaneous Conflict Problems451

8.9.4 Former-Client Conflicts454

8.10Conflicts of Former Government Lawyers456

8.10.1 Special Dimensions of the Conflict456

8.10.2 Principles， Professional Rules， and Legislation459

8.10.3 Application of the Former-Government-Lawyer Rules467

8.11Lawyer Business Dealings With Clients479

8.11.1 The General Inadvisability of Client-Lawyer Busi- ness Deals479

8.11.2 Client-Lawyer Business Deals in the Professional Rules479

8.11.3 Strict Scrutiny Standard481

8.11.4 Disclosure and Consent in Client-Lawyer Business Dealings484

8.11.5 Remedies for Improper Business Deals485

8.12Client Gifts and Fiduciary Designations485

8.12.1 General485

8.12.2 Client Gifts to Lawyers486

8.12.3 Lawyers as Beneficiaries of Client Wills487

8.12.4 Lawyer Self-Nomination as Fiduciary488

8.13 Maintenance， Champerty， and Barratry489

8.14 Class Action Conflicts492

8.15 Settling Related Cases493

CHAPTER NINE. CLIENT-LAWYER CONTRACTS495

9.1Regulation of Client-Lawyer Contracts495

9.2Formation and Terms of Client-Lawyer Contracts501

9.2.1 Formation of Client-Lawyer Contracts501

9.2.2 Methods and Terms of Fee Payment504

9.2.3 Advancing Funds to Clients507

9.2.4 Fee Splitting509

9.3Permissible Fees513

9.3.1 Fair Fee Charges513

9.3.2 Illegal Fees522

9.3.3 Publication-Rights Contracts524

9.4Contingent Fees526

9.4.1 Contingent Fee Contracts526

9.4.2 Calculating Contingent Fees531

9.4.3 Prohibition in Criminal Cases535

9.4.4 Prohibition in Domestic Relations Cases538

9.4.5 Other Prohibited Contingent Fees541

9.5Terminating Client-Lawyer Contracts542

9.5.1 Closing Representations542

9.5.2 Client Discharge545

9.5.3 Permissive Lawyer Withdrawal548

9.5.4 Mandatory Lawyer Withdrawal551

9.6Lawyers’ Claims for Compensation553

9.6.1 Fee Disputes and Suits553

9.6.2 Fee Arbitration556

9.6.3 Attorney Liens558

PART THREE.THE ROLE OF LAWYERS563

CHAPTER TEN. THE ADVERSARY SYSTEM563

10.1Concept of the Adversary System563

10.2Principle of Professional Detachment569

10.2.1 Lawyers’ Professional Isolation From Clients569

10.2.2 Freedom of Professional Employment571

10.2.3 Unpopular Clients and Causes576

10.3Principle of Zealous Partisanship578

10.3.1 Nature of the Principle of Zeal578

10.3.2 Rationale of Zealous Partisanship581

10.4Lawyers’ Nonlegal Views582

10.4.1 Lawyers’ Values in Conflict With Clients’582

10.4.2 Lawyers and Law Reform582

10.4.3 Lawyers and Role Separation583

10.4.4 Personalities and Character of Lawyers584

10.5Justice Versus Merits； Criminal Defense585

10.5.1 Problem of Legal and Moral Entitlements585

10.5.2 Defense of the Guilty586

10.5.3 Role of Defense Counsel588

10.5.4 Plea Bargaining590

CHAPTER ELEVEN.LAWYERS AS ADVOCATES593

11.1Advocacy： An Overview593

11.2The Screening Function594

11.2.1 General594

11.2.2 Lawyers as Gatekeepers594

11.2.3 Litigational Harassment597

11.2.4 Questions of Fact598

11.2.5 Delay599

11.3Advocates and Judges600

11.3.1 The Lawyer-Judge Relationship600

11.3.2 Lawyer Criticism of Judges600

11.3.3 Professional Contact With Judges603

11.4Advocates and Jurors606

11.4.1 Jury Isolation and Secrecy606

11.4.2 Lawyer Pretrial Contract With Jurors606

11.4.3 Trial Contact607

11.4.4 Posttrial Contact608

11.5 Advocates and Adversary Lawyers609

11.6Lawyer Dealings With Nonclients610

11.6.1 General610

11.6.2 Represented Persons611

11.6.3 Contact With Unrepresented Persons616

CHAPTER TWELVE.LAWYER FORENSICS619

12.1Courtroom Forensics619

12.1.1 Nature and Control of Advocacy619

12.1.2 Prohibited Forensic Tactics622

12.1.3 Courtroom Decorum and Contemptuous Advocacy625

12.2Lawyers’ Extrajudicial Freedoms630

12.2.1 Freedoms in the Controlled Courtroom Environ- ment630

12.2.2 Extrajudicial Expressive Rights of Lawyers632

12.2.3 Other Freedom Restrictions： The Oath Cases637

12.3Advocates and Evidence638

12.3.1 Truth in the Service of Client Interests638

12.3.2 Withholding and Disclosing Evidence639

12.3.3 Falsifying Facts641

12.3.4 Distorting Facts642

12.3.5 Document Destruction and Other Suppression of Evidence643

12.4Advocates and Witnesses646

12.4.1 Dealing With Witnesses646

12.4.2 Discouraging or Suppressing Testimony646

12.4.3 Coaching and Falsifying Testimony647

12.4.4 Harassing Witnesses649

12.4.5 Cross-Examination650

12.4.6 Compensating Witnesses651

12.5Advocates and Perjury653

12.5.1 The Problem of Perjury653

12.5.2 What Lawyers Know655

12.5.3 Dealing With False Testimony656

12.5.4 Perjury by Persons Accused of Crime660

12.6Disclosing Client Wrongdoing663

12.6.1 Lawyer Disclosure Adverse to a Client663

12.6.2 Active Involvement versus Passive Knowledge666

12.6.3 Whistle-Blowing666

12.6.4 Disclosure Under the Lawyer Codes668

12.6.5 Judicial Doctrines on Disclosure672

12.6.6 Disclosure in Securities and Corporate Practice675

12.7 Disclosure in Ex Parte and Similar Proceedings678

12.8 Disclosing Adverse Legal Authority681

12.9 Disclosing Jury Tampering682

12.10Disclosing Lawyers’ Misconduct683

12.10.1 Reporting Lawyer Wrongdoing683

12.10.2 Cooperating With Disciplinary Agencies686

CHAPTER THIRTEEN. LAWYERS AS COUNSELORS687

13.1Overview of a Lawyer’s Work687

13.2Office Counseling688

13.2.1 Counseling Function688

13.2.2 Stages of Counseling690

13.2.3 Counseling Techniques690

13.2.4 Objectives of Counseling691

13.3Advising Clients692

13.3.1 Client Objectives and Legal Uncertainty692

13.3.2 Advising on the Limits of the Law： Client Crimes692

13.3.3 Knowledge Issues695

13.3.4 White-Collar Crime697

13.3.5 Ongoing Illegal Enterprises697

13.3.6 Fraudulent and Sham Transactions698

13.3.7 Defying Court Orders701

13.3.8 Test Cases， Desuetude， and Civil Disobedience702

13.3.9 Unconscionable， Tortious， and Other Unlawful Acts703

13.3.10 Repugnant or Imprudent Client Projects705

13.4Evaluation706

13.4.1 A Lawyer’s Role as Evaluator706

13.4.2 Eligible Evaluators707

13.4.3 Confidentiality in Evaluation708

13.4.4 Duties to Third Parties709

13.5Negotiation710

13.5.1 Nature of the Negotiation Function710

13.5.2 Negotiation Settings710

13.5.3 Negotiation Tactics in General713

13.5.4 Force—Lawyer Extortion714

13.5.5 Threat of Criminal Prosecution716

13.5.6 Threat of Noncriminal Proceedings718

13.5.7 Deception in Tort and Contract Law719

13.5.8 Deception Under the Professional Regulations722

13.6 Mediation727

13.7Corporate Practice731

13.7.1 Lawyers and Corporations731

13.7.2 Corporate Client-Lawyer Relationship732

13.7.3 House Counsel736

13.7.4 Outside Counsel738

13.7.5 Corporate Advising740

13.8Lawyers and the Political Process746

13.8.1 Lawyers in American Politics746

13.8.2 Lawyer-Lobbyists747

13.8.3 Lawyer-Legislators751

13.9Government Lawyers753

13.9.1 Legal Advisers and Policy Makers753

13.9.2 Discretion of Government Lawyers756

13.10Prosecutors759

13.10.1 Constituencies of Prosecutors759

13.10.2 Responsibilities of Prosecutors760

13.10.3 Prosecutorial Discretion762

13.10.4 Prosecutors and Advocacy765

13.10.5 Mandatory Disclosure to the Accused767

13.10.6 Plea Bargaining769

PART FOUR.DELIVERY OF LEGAL SERVICES771

CHAPTER FOURTEEN.THE NEED FOR A LAWYER771

14.1Client Needs for Legal Services771

14.2Information About Legal Services774

14.2.1 Lawyer Referral and Law Lists774

14.2.2 The Economics and History of Lawyer Advertising775

14.2.3 Lawyer Advertising and the Constitution778

14.2.4 Scope of Regulatory Power780

14.2.5 Solicitation785

14.3Right to Counsel in Criminal Cases791

14.3.1 Constitutional Bases791

14.3.2 Critical Stages in Criminal Proceedings795

14.3.3 Implementing the Right to Counsel—Indigence796

14.3.4 Staffing the Right to Counsel797

14.3.5 Appointment Systems798

14.3.6 Public Defender Systems800

14.3.7 Right to Retained Counsel802

14.4Right to Self-Representation803

14.4.1 Pro Se Litigation803

14.4.2 The Pro Se Right in Criminal Cases805

14.5 Right to Counsel in Civil Cases807

14.6Effective Assistance of Counsel810

14.6.1 The Right to Effective Assistance810

14.6.2 Standards of Effective Assistance812

14.6.3 Application of the Effectiveness Standard815

14.6.4 State Interference With the Right to Counsel819

CHAPTER FIFTEEN.THE RIGHT TO PRACTICE LAW824

15.1Authorized and Unauthorized Practice824

15.1.1 Nature and Background of Unauthorized Practice Regulation824

15.1.2 Rationale of Unauthorized Practice Law828

15.1.3 Workings of Unauthorized Practice Doctrine834

15.1.4 Lawyers and Unauthorized Practice846

15.2Bar Admission Requirements849

15.2.1 Bar Admission： General849

15.2.2 Educational Requirements851

15.2.3 Residence Requirements852

15.2.4 Admission in Federal Courts853

15.2.5 Practice Before Administrative Agencies854

15.3Competence and Character856

15.3.1 Choosing Suitable Practitioners856

15.3.2 Assessing Character858

15.4Multijurisdictional Practice865

15.4.1 Practicing Law in a Federal Nation865

15.4.2 Admission on Motion869

15.4.3 Appearance Pro Hac Vice871

CHAPTER SIXTEEN. FORMS AND FUNDING OF LAW PRACTICE875

16.1Theories About Paying for Legal Services875

16.2Law Firms877

16.2.1 Nature of Law Firms and Firm Practice877

16.2.2 Subordinate and Supervising Lawyers880

16.2.3 Lawyer Partnerships883

16.2.4 Lawyer Professional Corporations889

16.2.5 Associated Lawyers891

16.3Nonlawyer Employees of Lawyers892

16.3.1 Scope of Lawyer Responsibility892

16.3.2 Paralegals896

16.4 Dual Practice897

16.5Group Legal Services898

16.5.1 Meeting the Legal Service Needs of the Middle Class898

16.5.2 Constitutional Freedom to Deal With Legal Needs899

16.5.3 Types of Group Legal Service Plans901

16.5.4 Strengths and Weaknesses of Group Legal Service Plans904

16.5.5 Regulation of Legal Service Plans910

16.6Fee Shifting918

16.6.1 American Rule918

16.6.2 Common-Law Exceptions922

16.6.3 Legislative Exceptions929

16.6.4 Ethical Issues in Fee Shifting931

16.7Legal Services for the Poor932

16.7.1 Legal Needs of the Poor932

16.7.2 Legal Aid933

16.7.3 Government-Funded Legal Services for the Poor936

16.7.4 Legal Services Lawyering and Client-Lawyer Re- lationships939

16.8 Public Interest Practice946

16.9 Pro Bono Legal Services949

Appendix A. WESTLAW References955

TABLE OF CASES967

TABLE OF MODEL CODE OF PROFESSIONAL RESPONSIBILITY1061

TABLE OF MODEL RULES OF PROFESSIONAL CONDUCT1069

TABLE OF CANONS OF PROFESSIONAL ETHICS1077

TABLE OF ABA STANDARDS1079

TABLE OF ABA ETHICS COMMITTEE OPINIONS1081

INDEX1083