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Professional Responsibility: An Open-Source Casebook

Table of contents
Chapter One. Introduction
1.1 - Introduction to Professional Responsibility
1.2 - The History of the Legal Profession
Chapter Two. The Attorney-Client Relationship
2.1 - Creating an Attorney-Client Relationship
2.2 - Ending an Attorney-Client Relationship
2.3 - The Attorney as Agent
2.4 - The Client as Principal
2.5 - Ex Parte Communications
2.6 - Attorney’s Fees
2.7 - Financial Relationships with Clients
2.8 - Organizations as Clients
2.9 - Agents as Clients
Chapter Three. The Legal Duties of an Attorney
3.1 - Fiduciary Duties
3.2 - Legal Malpractice
3.3 - Ineffective Assistance of Counsel
Chapter Four. Conflicts of Interest
4.1 - Identifying Conflicts of Interest
4.2 - Resolving Conflicts of Interest
4.3 - Breach of the Duty of Loyalty
4.4 - Current Client Conflicts of Interest
4.5 - Former Client Conflicts on Interest
4.6 - Associational Conflicts of Interest
4.7 - Specific Conflicts of Interest
4.8 - Personal Conflicts of Interest
Chapter Five. Confidentiality
5.1 - The Duty of Confidentiality
5.2 - Exceptions to the Duty of Confidentiality
5.3 - The Attorney-Client Privilege
5.4 - Applying the Attorney-Client Privilege
5.5 - Corporate Privilege
5.6 - The Work Product Doctrine
5.7 - Exceptions to Privilege & Work Product
Chapter Six. Advocacy & Conduct
6.1 - Frivolous Pleading
6.2 - Improper Advocacy
6.3 - Attorney Misconduct
6.4 - Client Perjury
6.5 - Alternative Dispute Resolution
Chapter Seven. The Regulation of the Legal Profession
7.1 - Bar Admission
7.2 - Advertising
7.3 - Solicitation
7.4 - Prosecutorial Misconduct
7.5 - Judicial Recusal & Misconduct
Chapter Eight. Justifying the Rules of Professional Responsibility
8.1 - Theories of Legal Ethics
Professional Responsibility: An Open-Source Casebook
1st Edition
Brian L. Frye and Elizabeth Schiller, Elizabeth Schiller
Creative Commons 0
Table Of Contents
  • Introduction - Professional Responsibility
  • Chapter One - Introduction
    • 1.1 - Introduction to Professional Responsibility
    • 1.2 - The History of the Legal Profession
  • Chapter Two - The Attorney-Client Relationship
    • 2.1 - Creating an Attorney-Client Relationship
    • 2.2 - Ending an Attorney-Client Relationship
    • 2.3 - The Attorney as Agent
    • 2.4 - The Client as Principal
    • 2.5 - Ex Parte Communications
    • 2.6 - Attorney’s Fees
    • 2.7 - Financial Relationships with Clients
    • 2.8 - Organizations as Clients
    • 2.9 - Agents as Clients
  • Chapter Three - The Legal Duties of an Attorney
    • 3.1 - Fiduciary Duties
    • 3.2 - Legal Malpractice
    • 3.3 - Ineffective Assistance of Counsel
  • Chapter Four - Conflicts of Interest
    • 4.1 - Identifying Conflicts of Interest
    • 4.2 - Resolving Conflicts of Interest
    • 4.3 - Breach of the Duty of Loyalty
    • 4.4 - Current Client Conflicts of Interest
    • 4.5 - Former Client Conflicts on Interest
    • 4.6 - Associational Conflicts of Interest
    • 4.7 - Specific Conflicts of Interest
    • 4.8 - Personal Conflicts of Interest
  • Chapter Five - Confidentiality
    • 5.1 - The Duty of Confidentiality
    • 5.2 - Exceptions to the Duty of Confidentiality
    • 5.3 - The Attorney-Client Privilege
    • 5.4 - Applying the Attorney-Client Privilege
    • 5.5 - Corporate Privilege
    • 5.6 - The Work Product Doctrine
    • 5.7 - Exceptions to Privilege & Work Product
  • Chapter Six - Advocacy & Conduct
    • 6.1 - Frivolous Pleading
    • 6.2 - Improper Advocacy
    • 6.3 - Attorney Misconduct
    • 6.4 - Client Perjury
    • 6.5 - Alternative Dispute Resolution
  • Chapter Seven - The Regulation of the Legal Profession
    • 7.1 - Bar Admission
    • 7.2 - Advertising
    • 7.3 - Solicitation
    • 7.4 - Prosecutorial Misconduct
    • 7.5 - Judicial Recusal & Misconduct
  • Chapter Eight - Justifying the Rules of Professional Responsibility
    • 8.1 - Theories of Legal Ethics
Introduction
Professional Responsibility

 

 

 

 

 

 

 

 

 

 

 

 

 

Cover:

Hablot Knight Brown or “Phiz”

Attorney and Client, Fortitute and Impatience (1853)

 

 

 

 

 

 

 

Introduction.1. Epigraph

It would be idle to assert that there is nothing of selfishness in the pursuit of a profession. But its ideal is not one of individual success in competitive acquisitive activity. And because ideals operate powerfully to shape action, professional activity, even at its worst, is restrained and guided by something better than the desire for money rewards.1 

The function of the lawyer is to preserve a sceptical relativism in a society hell-bent for absolutes. The worse the society, the more law there will be. In Hell there will be nothing but law and due process will be meticulously observed.2 

About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.3 

We will not at present inquire whether the doctrine which is held on this subject by English lawyers be or be not agreeable to reason and morality; whether it be right that a man should, with a wig on his head, and a band round his neck, do for a guinea what, without those appendages, he would think it wicked and infamous to do for an empire; whether it be right that, not merely believing but knowing a statement to be true, he should do all that can be done by sophistry, by rhetoric, by solemn asseveration, by indignant exclamation, by gesture, by play of features, by terrifying one honest witness, by perplexing another, to cause a jury to think that statement false.4 

Justice says ye? I tell ye Hogan’s r-right whin he says: ‘Justice is blind.’ Blind she is, an’ deef an’ dumb an’ has a wooden leg! Niver again will they dhraw me to a coort. I’ll take th’ rude justice iv a piece iv lead pipe without costs or th’ r-right iv appeal.5 

Lawyer — One who protects us against robbers by taking away the temptation.6 

LAWYER, n. One skilled in circumvention of the law.7 

The sad thing about lawyers is not that so many of them are stupid, but that so many of them are intelligent. The craft is a great devourer of good men; it sucks in and wastes almost as many as the monastic life consumed in the Middle Ages. There is something about it that is extraordinarily attractive to bright youngsters, especially in the United States. It not only offers the chance of very substantial rewards in money; it also holds out the temptation of a sort of public dignity, with political preferment thrown in for good measure.8 

Introduction.2. Preface

Thank you for your interest in Professional Responsibility: An Open-Source Casebook. We hope that you find it useful and informative.

This is a free casebook. We believe that law students and others interested in the law should not have to pay the high prices that commercial publishers charge for casebooks. Many others agree, and have created free or low-cost casebooks covering many different areas of the law. Here are some examples:

In addition, the Center for Computer-Assisted Legal Instruction (CALI) offers free casebooks in many different subjects, including:

  • Bankruptcy Law and Practice

  • Basic Income Tax

  • Contract Doctrine, Theory & Practice

  • Corporate Income Tax

  • The Ethics of Tax Lawyering

  • First Amendment: Cases, Controversies, and Contexts

  • Land Use

  • The Law of Trusts

  • Law of Wills

  • Property

  • Sales and Leases: A Problem-based Approach

  • Selected Materials on the Law of Evidence

  • Sources of American Law: An Introduction to Legal Research

  • The Story of Contract Law

  • Torts: Cases and Contexts

  • U.S. Federal Income Taxation of Individuals

  • Wetlands Law: A Course Source

We noticed that there was no free and open-source casebook available for a professional responsibility class, so we decided to create one.

We wanted this casebook to be as easy to use and understand as possible. Accordingly, we included not only cases, but also the text of the rules and restatements, as well as concise explanations of the relevant law. Each chapter of the book addresses a different issue, in the following format. First, it clearly and concisely explains the relevant law governing that issue. Then provides the relevant text of any statutes, Model Rules, sections of the Restatement of the Law Governing Lawyers, or other sources, with a link to an open-source versions of the full text, when available. It provides one or more heavily edited cases intended to illustrate the application of the law at issue, with a link to an open-source version of the full text of the case. Each case is preceded by a brief summary of its facts, reasoning, and holding, and followed by questions intended to indicate subjects for further investigation or discussion. And finally, it includes citations to law review articles and other materials relevant to the law at issue, with links to open-source versions of those materials, when available.

This casebook covers a wide range of different subjects related to the professional responsibility of attorneys. While it is possible to cover all of this material in a three credit-hour course, you may wish to omit some subjects. You may also wish to supplement the materials in this casebook with additional materials. We encourage you to use this casebook in any way that you like.

This casebook is licensed “Creative Commons 0 / No Rights Reserved.” That means that we explicitly disclaim any copyright claim in all of the original elements that we created in writing this casebook and have intentionally placed the casebook in the public domain. Because this casebook is in the public domain, you can use the materials in it in any way that you like, with or without attribution. Of course, the casebook contains many copyrighted elements that belong to other people and that we used pursuant to fair use. Those elements are still protected by copyright.

We hope that this free casebook helps show that it is possible to create teaching materials for legal education in an open-source format. And we hope it makes access to the law governing legal practice more accessible to law students, attorneys, and anyone interested in the regulation of the legal profession.

In closing, we would like to thank our research assistants Nicole Pottinger, Justin Cloyd, Mark Blankenship, Barrett Block, and Renee Wilson. We would also like to thank Cornelius Kearns, Brandon Magner, and Guy Hamilton-Smith for helpful comments.

  • 1

    Roscoe Pound, What is a Profession - the Rise of the Legal Profession in Antiquity, 19 Notre Dame L. Rev. 203 (1944)
    (https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3933&context=ndlr)

  • 2

    Grant Gilmore, The Ages of American Law 110 (1977).

  • 3

    Philip C. Jessup, 1 Elihu Root 133 (1964).

  • 4

    Thomas Babington Macaulay, Essay on Francis Bacon (1874)
    (https://books.google.by/books?id=eLs-AAAAYAAJ&pg=PA376&lpg=PA376&redir_esc=y#v=onepage&q&f=false)

  • 5

    Finley Peter Dunne, Mr. Dooley’s Opinions 118 (1901)
    (https://babel.hathitrust.org/cgi/pt?id=coo1.ark:/13960/t9280x26m;view=1up;seq=128)

  • 6

    H.L. Mencken, A Mencken Chrestomathy (1949).

  • 7

    Ambrose Bierce, The Cynic's Dictionary (1906).

  • 8

    H.L. Mencken, Stewards of Nonsense, American Mercury 35 (Jan. 1928).

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