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I. Overview of the Profession and the Model Code & Rules

I. Overview of the Profession and the Model Code &...

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Professional Responsibility Outline Spring 2001 Page 1 I. Overview of the Profession and the Model Code & Rules A. Who makes the rules? 1. Constitution: first and sixth amendments 2. statutes, procedural and evidentiary rules, common law, court rules, and state constitutions 3. state bar associations 4. most important: codes of conduct adopted by courts a) Courts vs. legislators: how far does inherent powers doctrine allow courts to go? B. Other authorities 1. Interpretations of the Code for Rules by Bar Association ethics committees 2. Law review literature 3. American Law Institute’s Restatement of the Law Governing Lawyers C. Ethics rules and the American Bar Association 1. 1908: Canons of Professional Ethics 2. 1970: Code of Professional Responsibility (consisting of Ethical Considerations and Disciplinary Rules) (adopted in New York , but not completely) 3. 1983: Model Rules of Professional Conduct D. Federal trial courts generally adopt the ethics rules of state in which they sit. 1. What happens when state rules conflict? No one knows for sure. E. Professionalism 1. “A professional subordinates self-interest and private gain to the interests of clients or to the public good generally.”
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Spring 2001 Page 2 2. It is too soon to say what effect the idea of professionalism will have on rules regulating the practice of law. II. The Attorney-Client Privilege and Confidential Information A. Goal: to encourage clients to seek counsel with and talk to attorneys (But do we really know that clients would not talk to attorneys if there was no privilege?) B. Attorney-client privilege vs. confidential communication (an ethical rule): 1. Privileged information (confidences): protected by law of evidence. 2. Confidential information (secrets): protected by ethics rules. 3. The ethical duty is broader than the attorney-client privilege a) Virtually all info that is privileged will be ethically protected. b) Much info that is ethically protected will not be privileged. Hence, voluntary disclosure of ethically protected info can lead to discipline. C. The 4 C’s. Rule 1.6, DR 4-101 . For information to be confidential, it must be: 1. from a “client ”; 2. communication ; 3. in confidence (no if 3 rd party present); 4. for the purpose of seeking legal counsel . D. Rules v. Code: under DR 4-101 , information received after representation has ended is not protected. New York follows Code . E. Is there a client here? Considerations: 1. Was there payment ? (a factor but not a requirement) 2. What were the reasonable expectations of the person claiming to be a client ? See (court finds that it was reasonable in the circumstances for the plaintiff to believe that attorneys for corporation were his lawyers). a)
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I. Overview of the Profession and the Model Code &...

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