ethics in the legal professionContinuing Education Insurance

1、i table of contents ethics in the legal profession.1 chapter one - preface.1 definition of “ethics” .1 rules of professional conduct.2 types of ethics opinions .2 determine the options.3 the lawyers responsibilities.3 the bar association.4 aba report of committee on code of professional ethics.5 rea

2、sons for the code.7 ethical theories.8 determining action in light of the consequences of the act.9 acting only from desire.9 ethics of virtue.10 determining the proper action.10 dealing with right or wrong.11 personal responsibility .11 sensitive judgement .12 the morals of the lawyer .13 integrity

3、.13 justification.14 beliefs learned as a child.15 is this good for me?.15 how does the action affect society? .16 is it fair, just and proper? .16 is there a rights violation involved?.16 has there been a promise made?.17 ignorance is bliss?.18 or greed? .18 character.19 quandaries .20 trying to re

4、solve dilemmas.20 collect pertinent information.20 discover all of the players.21 determine the options.21 estimate the effect of the options.21 ethical behavior .21 moral behavior.22 equity.23 chapter 1 study questions.24 chapter two adversary theorum.26 objections to the adversarial system.27 conf

5、licts between client obligations and obligations to others.28 legal fiction.29 zealous advocacy - representing a guilty party.30 sanctions against abuse of the adversary system.34 confidentiality .35 authorized disclosure.37 disclosure adverse to client.37 withdrawal.38 ii waivers of privilege.38 th

6、e crime-fraud exception.39 precedence of protecting the guilty over convicting the guilty.40 chapter 2 study questions.43 chapter three discovery cornell law school legal information institute (/ethics/listing.html), and the american bar association center for professional r

7、esponsibility (/cpr/links.html#states). state supreme courts publish cases disciplining lawyers for misconduct; civil cases and criminal cases address ethics issues. these can be located through the west digest system, and case laws regarding ethics can be found through westlaw,

8、lexis, lois law (http:/) and versus law (/library/versuslaw.htm) types of ethics opinions ethics opinions interpret and apply the rules of conduct to specific situations, which are issued by a state supreme court for instance, but more generally by a committee of a state or local b

9、ar organizations. some of these opinions are advisory only and do not have the force of law, but are still considered persuasive authority. some opinions are binding, particularly if issued by state supreme courts. generally, the rules are both imperatives, as indicated by the verbs “shall” and “sha

10、ll not” and are used to define proper conduct within the parameters of professional discipline. others 3 use permissive verbs, such as “may,” or “should,” which indicate that the lawyer has professional discretion. if the rule is permissive, then there should be no disciplinary action if an attorney

11、 decides to act, or not to act, within the bounds of this discretion. in a study of ethics, those rules that are permissive are normally those that are of interest. as later discussed, ethical situations arise in most cases, where there is a dilemma. if a rule were imperative, then there would usual

12、ly be no dilemma. this is not to say that there cannot be a quandary in respect to imperatives indeed, some of the more interesting ethical situations arise when there is a flagrant misuse of ethical standards regarding a “shall not” type of rule. but for purposes of this text, permissive rules or s

13、ituations are more applicable to the study of ethics. a quandary or dilemma occurs when in a certain situation, the person is not sure as to what to do, as there is good reasons for the action and good reasons against it. conflicting responsibilities often arise in the practice of law and ethical pr

14、oblems are frequent because of the conflict between a lawyers responsibilities to a client and the attorneys own personal honor and any perceived obligations to society and the legal profession. these are the most common and the most trying of ethical problems, and are most frequently addressed in t

15、he rules of professional conduct (or similar rules). determine the options some ethics “consultants” maintain that since a dilemma (or quandary) must have at least two options, in order to determine the proper option, a third option is necessary. the reasoning seems to be that if one has not spent e

16、nough time and thought to the problem without coming up with at least a third option, then they simply havent thought enough about the problem. practically speaking, in order to solve a dilemma, there must be another choice, other than just two. the lawyers responsibilities a good place to start thi

17、s discussion is by quoting the first line of the above-mentioned rules of professional conduct, “preamble: a lawyers responsibilities:” a lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. 4 since lawy

18、ers are officers of the court, they are responsible to the judiciary for their professional activities and therefore, lawyers are granted powers of self-government. this has been criticized by lay persons as granting too much power to the legal profession, but in actual practice, any abuse of the sy

19、stem is challenged more readily when members of the profession are not dependent upon the other branches of government (executive and legislative) for the right to practice their profession. in addition to the rules, a lawyer is guided by his conscience and by the approval of his professional peers,

20、 as is often stated in various “rules.” while everyone would agree to this simplistic statement, it must also be recognized that one persons conscience is another persons dare and in many cases, who is to say what is “right.” if everyones conscience were alike, there would not be the need for many l

21、awyers. and in respect to “peers,” it often appears that the most highly regarded, and generally the highest-paid, attorneys dont really seem to “give a hoot” about what others think. the general public accuses attorneys of many things, but usually being a “lemming” is not one of those things. if th

22、ere are indeed at least two (or more) sides to nearly every story, and the law is not clear, or is clearly unfair, in the situation, the deciding factor must then be the most ethical. and for the law practitioner, it should be remembered: when ethics are discarded, those affected are generally those

23、 who will suffer the most and who can ill afford the consequences. the bar association bar associations were formed during colonial times, but faded away with the exodus of the tories. they were revitalized in the late 19th century because of a variety of reasons. it was (and still is) believed that

24、 public service can be developed and maintained only through organizations. high educational standards that can assure high standards for a profession can be obtained only through such an organization, and only such organizations can create and maintain high standards of ethical conduct with clients

25、 and with the courts. the general public has a substantial interest in such an organization and their ability to administer justice, particularly in fact of every-changing and complex society. lawyers were among the most individualistic members of society after the american revolution, but gradually

26、, starting in the most populous areas, bar associations were formed for social and/or disciplinary reasons and took on the appearance of a “guild.” in 1870, a group of the best known and highest-regarded lawyers in new york city formed the association of the bar of the city of new york, principally

27、to fight the tweed organization. four years later in chicago, because of the activities of a number of unlicensed legal practitioners, the chicago bar association was formed. by 1925, all the states and territories had bar associations, however most of them had been formed for social purposes which

28、5 continued until the 1920s. for some 50 years after the associations were formed, it was a given that the individual lawyer had neither the right nor the duty to join a bar association as membership was a privilege and new members had to be voted in by present members. by 1935, 60% of the lawyers b

29、elonged to some bar associations. the strongest supporters of the association of the bar of the city of new york were, according to some historians, yale, harvard and protestantism. after a rather timid start, during the second half of the 20th century, the american bar association came of age and b

30、ecame more assertive. the purpose of the american bar association was stated to preserve its own exclusiveness (and social status thereof), and to exert professional leverage upon the political process. one item that drew national attention was when the american bar association admitted three black

31、lawyers (by error, it was claimed) in 1912, when it then changed its admission practices so that only white men could be members. this remained unchanged for nearly 50 years. they also fought hard against the nomination of louis d. brandeis to the supreme court, mostly because the members of the bar

32、 considered him as a threat to their professional world. they were not successful as brandeis had a brilliant record at harvard law school and brandeis was confirmed by a vote of 47-22. the american bar association is the worlds largest voluntary professional organization with over 400,000 members r

33、epresenting about 40% of the practicing attorneys. it is governed by a house of delegates who has adopted the following statement of objectives: 1. promote improvements in the system of justice; 2. improve the delivery of legal services; 3. provide leadership in the improvement of the law; 4. increa

34、se understanding of the legal system; 5. assure the highest standards of professional competence and ethics (our emphasis); 6. serve as the national representative of the legal profession; 7. enhance the professional growth of its members. aba report of committee on code of professional ethics the f

35、irst book specifically addressing legal ethics was fifty resolutions in regard to professional deportment, written by david hoffman in 1836. hoffman was as concerned with etiquette as he was with ethics. in 1854, george sharswood (a pennsylvania judge) wrote essay on professional ethics which was a

36、major influence on the first state bars code of professional ethics (alabama) and the abas first canons of ethics. his writing was noted for stressing the differences between personal and professional morality. 6 the aba that recommended such a code received a shot in the arm by president theodore r

37、oosevelt, who had rebuked corporation lawyers for helping powerful clients to evade regulatory legislation. in 1906, the abas president authorized a committee to determine whether the ethics of the aba rose to the “high standards, which its position of influence in the country demands.” rather than

38、be subjected to the reading of the entire report certain statements within the report of still of interest today. (emphasis in following text in bold is ours) “and here in america, where justice reigns only by and through the people under forms of law, the lawyer is and must ever be the high priest

39、at the shrine of justice.” colorful and well put. “our profession is necessarily the keystone of the republican arch of government.we know it cannot be so maintained unless the conduct and motives of the members of our profession, of those who are the high priests of justice, are what they ought to

40、be.a code of ethics, adopted after due deliberation and promulgated by the american bar association, is one method in furtherance of this end.” “with the influx of increasing numbers, who seek admission to the profession mainly for its emoluments, have come new and changed conditions. once possible

41、ostracism by professional brethren was sufficient to keep from serious error the practitioner with no fixed ideals of ethical conduct; but now the shyster, the barratrously inclined, the ambulance chaser, the member of the bar with a system of runners, pursue their nefarious methods with no check sa

42、ve the rope of sand of moral suasion so long as they stop short of actual fraud and violate no criminal law. these men believe themselves immune, the good or bad esteem of their co-laborers is nothing to them provided their itching fingers are not thereby stayed in their eager quest for lucre. much

43、as we regret to acknowledge it, we known such men are in our midst.such men are enemies of the republic; not true ministers of her courts of justice robed in the priestly garments of truth, honor and integrity. all such are unworthy of a place upon the rolls of the great and noble profession of the

44、law.” “members of the bar, like judges, are officers of the courts, and like judges should hold office only during good behavior. “good behavior” should not be a vague, meaningless or shadowy term devoid of practical application save in flagrant casessuch standards may be crystallized into a written

45、 code of professional ethics, and a lawyer failing to conform thereto should not be permitted to practice or retain membership in professional associations.such a code in time will doubtless become of very great practical value by leading to action through the judiciary, for the courts may, as condi

46、tions warrant, require all candidates for the bar to subscribe to suitable and reasonable canons of ethics as a condition precedent to admission. if this were done, the courts will be in an indisputable position to enforce, through suspension or disbarment, the observance of proper ethical conduct o

47、n the part of members of the bar so admitted. action by the national association will also tend to develop uniformity between the various states, not only inform and method of statement but also in application, and this we deem of practical importance” “.many men depart from honorable and accepted s

48、tandards of practice early in their careers as the result of actual ignorance of the ethical requirements of the situation. habits 7 acquired when professional character is forming, are lasting in their effects.an american bar association code of ethics should prove a beacon light on the mountain of

49、 high resolve to lead the young practitioner safely through the snares and pitfalls of his early practice up to and along the straight and narrow path of high and honorable professional achievement.” following this report, the aba committee drafted 32 canons of ethics, approved by the membership in

50、1908 with little changes or debate and which all but 13 states and d.c. adopted with small local modifications. in the other states, the canons were treated as guides. however, there were substantial problems in enforcement, mostly because of the brevity and generality of the rules, and also because

51、 they attempted to combine moral exhortation and disciplinary mandates. the canons increased in number and there were so many variances, that in 1969 a new code of professional responsibility was created. these canons were divided into canons, ethical considerations, and disciplinary rules. in respe

52、ct to the ethical considerations, the drafters of the code explained, “the ethical considerations are aspirational in character and represent the objectives toward which every member of the profession should strive.” reasons for the code some commentators on legal ethics raise the question as to why

53、 there seems to be a need for ethics. they simply state what decent people already know and practice, while those who are not “decent” ignore these codes and who, it is suggested, find the navet of believing that a code of ethics would make a difference laughable. a logical answer to these concerns

54、is that even if it is true that they are simply nave reiterations of what is already known, there are not as many virtuous people as one might think. even those who are normally considered as above the fray, are often confronted with situations with which they are not familiar and need guidance. par

55、ticularly in a profession where success is often measured on a monetary scale, temptation rears its head quite often. even if there are no sanctions involved, just the printed guidelines can be used to persuade a person to do what they may not have done without guidance. but perhaps the most persuas

56、ive reason against a code of ethics raised by some “professionals” who guard their individual autonomy jealously, is that the pronouncements are just too controversial and which require behavior about which reasonable people can disagree therefore the threat to the autonomy. even though an individua

57、ls adherence to a stated principle may be inconsequential, when everyone acts in the same way, then the results are significant. codes of ethics encourage, and in some cases, require, standards of behavior among a group of people with similar needs and interests, can have a significant influence on

58、both their motivation to act, and by the very nature of the acts. add the encouragement of sanctions when the code is violated, the effects on the principles will be greater. lets face it. the general public, which is comprised of clients and future clients, is not impressed with the general ethical

59、 conduct of the legal profession at this time. while one may not care what “anybody thinks of them,” the only way that one can build and maintain a 8 reputation that will influence the public and the lawmakers, is to abide by strict rules of ethics. can you imagine what the public would think if the

60、re were no code of ethics? ethical theories simply put, an ethical theory lays the foundation for a principle, which in turn constitutes the most important justification for pursuing or following a course of action. these principles of fairness, consistency and beneficial to the proper parties as di