Professional Responsibility

Professor Vernellia Randall

The University of Dayton School of Law
"A lawyer, as a member of the legal profession, is a representative of clients, an officer of the
legal system
and a public citizen having special responsibility for the quality of justice."
ABA Model Rules for Conduct.

A Practicing Lawyer's Approach to Ethics

Richard Zitrin, Carol Langford and Nina Tarr
Legal Ethics in the Practice of Law, 1-3 (2007)

Imagine yourself two or three years from now practicing law. You're an associate in
a law firm, working hard for your clients and trying to impress the partners that one
day you should make partner yourself. But a problem comes up in a matter you are
handling for one of the firm's largest clients. It seems that either you or your
secretary miscalculated by a day the deadline to file your opposition to a summary
judgment motion. You've got the pleadings done and they're good, but you're a day
late and the motions judge is a stickler on deadlines. You're in a panic, thinking
about losing your job and how you'd make your student loan payments, not to
mention the payments on the sports sedan you treated yourself to when you passed
the bar. You confide in a fellow associate who was a couple of years ahead of you at
law school, and she tells you, "Look, here's what you can do. Just turn the postage
meter back a day, backdate the date on your opposition and mail it out this
morning. Sometimes the postal service rejects backdated mail, but usually if you
get it in the mail early enough, they don't. It'll probably get you off the hook, and no
one will know the difference."

You walk away from the conversation feeling confused and upset. You know that
turning back the postage meter is not the right thing to do, yet it seems so easy,
and the ethics of the situation raised little concern with your more experienced
friend, whose sense of "right" and "wrong" you have always admired. You feel
enormous pressure, not just for yourself, but to protect your client's case. You know
your law school ethics teacher would have cited you a rule — probably several —
that your conduct would violate. You also recall how your supervising partner
always talks about "whatever it takes to get the job done." You consider whether
turning back the postage meter may be a situation of "no harm, no foul," since no
one will be the wiser. You don't know how to resolve your dilemma, and you're not
sure how fully your ethics course prepared you to deal with this situation.

Law schools teach students legal ethics in many different ways. Some schools,
including many that title their courses "professional responsibility," focus on
lecturing on the formal rules that govern that responsibility. They believe that a
thorough knowledge of the black-letter "law of lawyering" provides the best law
school curriculum.

[The focus of this course] is a little different. We ask this question: What is the role
of a law school — or of a legal ethics text [or a law school's professional
responsibility course] — if not to prepare students for the "real worms? We do not
underestimate the importance of the rules, codes, opinions, and decisional law that
articulate the underlying basic precepts of legal ethics. [In fact, a significant focus of
this course is assuring that you have the skills and knowledge to pass the MPRE] But
the goal of this [course] is considerably broader than just teaching these precepts.
It is to help you prepare for the ethical dilemmas you will certainly face as a
practicing lawyer. [This course will]. . . explore not just the traditional principles of
legal ethics, but how these principles are used, how they interact, indeed how they
conflict, in the real world practice of law. [This course will also] ... examine the
relationship between these ethical principles and other important issues concerning
the conduct of attorneys: Legal malpractice and related torts; bar discipline; court
sanctions; and contempt, among others.

No ethical precepts conflict more frequently or graphically than two presented in

our brief opening hypothetical — competent, diligent and thorough advocacy of a
client's interests vs. the obligation to be truthful in one's words and deeds. And it
would be naïve for us to ignore one more element of the equation — the practical
and economic consequences of doing things by the book when doing it that way
could jeopardize your job. After all, if you do not get that summary judgment
opposition filed, the consequences to the client, and to your future at your firm,
could be dire.

Accordingly, the focus of this [course] will be on the problem areas, ethical
dilemmas rather than bright line tests, conflicts among ethical principles rather than
resolution, and recognition of these dilemmas, rather than concrete solutions. There
is an excellent reason for this approach. While some ethical issues can be answered
simply and concretely, many of the day-to-day issues confronting practicing lawyers
are far more subtle. As we will see throughout this [course], these are issues on
which reasonable minds —including those of thoughtful ethics experts — often
differ. Experience has shown us that while most lawyers learn the rules of ethics
well enough to pass a short-answer ethics bar exam, too many simply aren't able to
recognize ethical dilemmas in their own practices until it's too late.

The lawyer who learns to recognize ethical problems early is halfway to a solution. If
you are able to recognize the warning signs, consider the dilemma you face and
articulate the issues to yourself, finding a response to the situation becomes much
easier. This will be the case whether you practice estate planning, criminal defense,
civil litigation, transactional contract work, or public interest law.

Many of the most interesting ethical "grey areas," the issues that create dilemmas
and conflict over ethical principles, arise because of tension between black letter
rules of legal ethics and society's sense of right and wrong. Some ethical principles,
including those that justify why the clearly guilty criminal defendant should be
zealously represented, and why that defendant's confidences must be strictly
protected, have their genesis in our Constitution. That document is a major source
of the strong precepts of loyal and devoted advocacy for our clients, right or wrong
that has long been a fundamental part of our ethical rules. We will examine the
tension between these rules end other important principles of our society: The
obligation to tell the truth; the duty of fairness; the avoidance of racial, ethnic, and
gender bias; the duty not to allow others to use our legal skills for their own illegal
ends; the increasing significance of our multi-cultural society; and the obligation not
to allow harm to come to others by virtue of our conduct, even if it means "blowing
the whistle" on a client.

[This course] will examine these issues in the context of the rules of legal ethics. In
that analysis, however, we will not attempt to define morality any more than the
rules of ethics could successfully legislate it. Rather, we hope that you will take your
own sense of personal morality and analyze it in light of the principles of legal
ethics that you learn here, in a way that helps you to develop a deeper
understanding of yourself as an ethical lawyer.

You may wonder what we mean by the term "ethics" in the context of the practice
of law... [There] is no one single answer to this complex's question. Some
commentators believe that legal ethics refers to "the law of lawyering," or the
formal body of rules and opinions and cases that govern our behavior. Others ...
[believe as we do] that an understanding of legal ethics involves more — the
consideration of both individual and ground morality. A lawyer evaluating this moral
component might ask questions like "How do I want to live my life as a
practitioner?" and "What do I think the legal profession should be, and what is my
role in that profession?" A group moral component has been defined by some as a
law firm ethic, culture, or attitude. We hope that [your] own answer to the question
of what "legal ethics" means will be more fully defined throughout [this course].