Overview of the Profession and the Model Code & Rules

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

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Professional Responsibility --- Professor Yaroshefsky --- Fall 2002 p.1-26; 412-416 b Source of Professional Rules o 1 st Amendment – informs ethical obligations ex: right to advertise legal services. o 6 th amendments – right to effective assistance of counsel in CRIM. LAW. o State Statutes, Constitutions, Common Law ex : fiduciary duties, confidentiality. o Rules of Evidence (Federal and State) ex : FRCP 11, Attorney-CL./Work Product Privilege. o Court Rules. o American / State Bar Associations o Most important: codes of conduct adopted by courts s Federal trial courts generally adopt the ethics rules of state in which they sit. s Courts vs. legislators: how far does inherent powers doctrine allow courts to go? b Other authorities o Bar Association ethics committees interpretations of the Code or Rules. o Law review literature o American Law Institute’s Restatement of the Law Governing L.s b American Bar Association’s Ethics Rules o ABA Model Code of Professional Responsibility (1977) o New York Model Code of Professional Responsibility – “EC”s and “DR”s o ABA Model Rules of Professional Ethics – “MR” (not adopted by NY) b Professionalism o “A professional subordinates self-interest and private gain to the interests of CL.s or to the public good generally.” o Too soon to say what effect the idea of professionalism will have on rules regulating the practice of law. Elements of the Attorney-Client Relationship p.27-38 B MR 1.6: CONFIDENTIALITY OF INFORMATION (a) L. shall not reveal information relating to representation of a client , unless . . .” B DR 4-101: PRESERVATION OF CONFIDENCES AND SECRETS OF A CL .: (a) “Confidence ” is info protected by attorney CL. privilege under law, a “Secret ” refers to any other information gained in professional relationship that Cl. has requested be held inviolate or disclosure of which would be embarrassing or would likely be detrimental to the CL. . (b) L. may not knowingly, (1) Reveal confidence or secrets of a client. (2) Use a confidence or secret of a client to the disadvantage of the client . (3) Use a confidence or secret of a client. for advantage of L. or 3 rd person , unless client consents after full disclosure . (c) Except , a L. may reveal . . . b Policy of Confidentiality / Privilege : o Encourage CL.s to seek advise of counsel o Encourage CL.s to share info with attorneys B help attorneys represent them well. b PRIVILEGE, Attorney-CL. o Evidentiary laws protect privileged information (confidences) from discovery, subpoena. s Virtually all info that is privileged will be ethically protected. s Much info that is ethically protected will not be privileged. Hence, voluntary disclosure of
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Professional Responsibility --- Professor Yaroshefsky --- Fall 2002 © Tal Dickstein, 2002 2 ethically protected info can lead to discipline o Scope of Attorney-CL. Privilege : s a communication , s from CL. , Ask : Is there a CL. here?
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This note was uploaded on 02/14/2008 for the course LAW 7711 taught by Professor Staff during the Fall '02 term at Yeshiva.

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

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