Part I.a Chapter 1 Outline

8/13/2019 Part I.a Chapter 1 Outline

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Part IA. Chapter 1: The Role of the Lawyer and the Legal Profession

Section A: Introduction to the Lawyers Role as Professional

I. Does the lawyers role permit, require, or justify behavior that would be consideredunethical for non-lawyers? The example of Spaulding v. Zimmerman

A. The lawyers conduct in Spaulding v. Zimmerman

1. What did Davids (the plaintiffs) lawyer do wrong?

a. The rule then and today: The duty of competence required him toobtain defense evidence prior to settling. Dr. Hannahs report wouldhave been available to him through pre-trial discovery.

b. Why did the plaintiffs lawyer do what he did? Should that affect howwe evaluate his conduct?

c. Did Davids lawyer serve him well?

2. What did the defendants lawyers do wrong?

a. Why didnt they tell David?

b. Is their failure to tell David legally justifiable?

i. The rule today: Model Rule 1.6 permits a lawyer to discloseconfidential information to an adversary in litigation only when

1. Required by law (e.g., if Davids lawyer had r equested itthrough pre-trial discovery)

2. When client consents

3. When disclosure of the information advances the clientsinterest, or

4. When the lawyer reasonably believes disclosure is necessary to prevent reasonably certain death orsubstantial bodily harm.

5. Would Model Rule 1.6 allow defense lawyers to reveal theinformation?


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ii. The rule in Minnesota then: would not have required defense todisclose Dr. Hannahs report and, indeed, would have prohibiteddisclosure unless clients consented.

c. Should the defense attorneys have consulted with their clients before

deciding whether to tell David?

d. Did the defense attorneys serve their clients well by not disclosing?

e. Who was the client of the defense attorneys?

3. What would you do?

a. Does either MR 1.6 or, in the case of Spaulding , Minnesotas rulegoverning a lawyers duty to guard the confidentiality of informationdefinitively answer the question for you of what the defense lawyers should

do?

b. Is Pembertons advice (to do the right thing) helpful?

4. The Minnesota Supreme Courts holding and reasoning

a. What did the court hold? What facts are crucial to the holding?

b. Does the court hold that a lawyer always must disclose confidentialinformation to an adversary when necessary to save the adversarys life?If not, what facts must exist to create a duty to disclose?

c. Did the court determine that the lawyers did something wrong? Why didthe court set aside the settlement?

d. Is its reasoning persuasive to you? Why or why not?

II. Evaluating the Ethics of Role Differentiation

A. What is Wasserstroms description of the conventional wisdom of the proper rolefor lawyers?

1. What is an amoral technician? B. Is this an accurate description? What kinds of lawyers likely adopt it, and what kinds

of lawyers might be more likely to view their role differently than he does?

C. Explanation: Why, according to Wasserstrom, do lawyers embrace roledifferentiation? Does the simplified moral universe that role differentiation offer sactually make lawyers comfortable?


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D. Justification: What is Wasserstroms normative argument about the ethics of roledifferentiation for lawyers?

1. When is some amount of role differentiation ethically justified?

2. What is the significance of the institution in which lawyers operate to the ethical justification for role differentiation?

3. What are the problems with role differentiation? Under what circumstances is itnot ethically justified?

4. What are the social costs to lawyers and to others of role differentiation oflawyers?

Documents

Part I.a Chapter 1 Outline