1 PRELIMINARY DRAFT LEGAL ETHICS1 LAW-550-001 PROF. CARLE SPRING 2012 Thurs., 10:00 – 11:50am Professor: Susan Carle Room TBA Office: Room 408 Office Hours: T & Th, 3pm – 5pm or by appointment Phone: (202) 274-4188(w) Email: [email protected] Assistant: Ms. Karrma Freeman-Terrell Room: 349 Phone: (202) 274-4068 Course Description. This course has several goals, including sensitizing you about the variety of practice settings in which lawyers work; giving you tools you will need to resolve the legal and ethical issues that lawyers confront in practice; and preparing you to navigate the enormous legal, cultural, and economic forces that are reshaping the legal profession. While virtually all other law school courses focus primarily on issues of concern to clients, this course revolves around issues of primary concern to you -- as individuals and future professional leaders. Like courses typically offered at other law schools to satisfy the ABA professional responsibility requirement, this course will teach you the Model Rules of Professional Conduct and other elements of the law that governs lawyers. As future members of the profession, you also need to understand issues and problems that confront the profession as a whole. A key issue permeating these matters is lawyers’ duty to safeguard the public interest in their practice. This year, I am going to let that theme infuse all of the topics we consider, rather than separating it out into a special unit of public interest practice. The course is divided into several units. Unit I introduces the lawyer’s role, the concept of profession, the attorney-client relationship, and other major concepts and themes that will arise throughout the course. It also considers two categories of lawyers whose conceptions of role raise particularly dramatic questions about the ethics of advocacy: criminal defense lawyers 1 This syllabus is adapted from a course designed by Ann Southworth and Catherine Fisk, who are developing a new legal ethics curriculum to meet the new demands of law practice in the twenty-first century. They are based at a new law school located at UC-Irvine.2 and prosecutors. Unit II focuses on the attorney-client privilege and the duty of confidentiality. We will consider justifications for confidentiality, the duty’s exceptions, and its applications to organizational clients. This unit also covers conflicts of interest – a general category of rules designed to ensure that lawyers serve clients loyally – and rules regarding restrictions on lawyers’ ability to contact represented and unrepresented persons. Unit III will look at a few other key issues, including ethics in negotiation, the special duties of government lawyers, and some of the regulatory issues confronting the future of the profession, including multidisciplinary practice and globalization. There is much more to cover in this field than a 2 credit course can fit, so I have had to make some very arbitrary and painful choices in topic coverage, but I welcome you to write an extra credit paper covering other topics, including public interest practice, issues regarding diversity in the profession, solo and small firm practice, lawyer satisfaction, and a host of others. If you have an interest in pursuing this opportunity, meet with me during office hours and we can discuss it further. Course Materials * Deborah Rhode & David Luban, Legal Ethics (5th ed., Foundation Press, 2009), ISBN No. 978-1-59941-355-6 This year I am going to experiment with using a website link to the Model Rules of Professional Conduct so that you will not have to pay for a rules supplement. . Assessment and Grades. Your grade will be calculated as follows: Class Participation and Attendance 20% Final exam 80% Class Participation and Attendance. I expect students to attend class regularly and to participate in class discussions. Class attendance is mandatory, and an unreasonable number of absences will result in ineligibility to take the examinations and, therefore, no credit for the course. Examinations. There will be a two hour take home examination at the end of the semester, which you may schedule for any time during exam period. The examination will be composed entirely of essay questions and will be open-book and open-note.3 READING ASSIGNMENTS Rhode and Luban Casebook = R & L MRs = ABA Model Rules of Professional Conduct Note: this is my first time using this casebook, so our pace through this material may vary. I will post notices on MyWCL if the reading assignments start to vary from what is predicted here. I. THE ROLE OF THE LAWYER AND THE LEGAL PROFESSION A. The Role of the Lawyer and the Legal Profession Class 1. What is a Profession? How is the American Legal Profession Regulated? Who is in It? * R&L, pp. 35-46, 51-68 (28) Class 2. The Allocation of Authority within the Attorney-Client Relationship * R&L, pp. 700-27 (27) * MRs 1.2, 1.4, 1.14 Class 3. The “ Hired Gun” Model of the Lawyer’s Role; Alternatives to the “ Hired Gun” Model * R&L, pp. 137-41, 148-66, 175-86 (33) * MRs 1.1, 1.2, 1.3 B. The Lawyer’s Role in the Criminal Justice System Class 4. Criminal Defense; Client Perjury/Impeachment * R&L, pp. 302-307, 309 (beginning with “Notes”)-314, 316-22 (ending with Question 2), 323-40, 351-54 (36) * MRs 1.1, 1.3, 1.4, 3.1, 3.3, 3.4, 4.4, 1.16; Crim. Defense Standards 4-7.6 and 4-7.7 Class 5. Criminal Prosecution I: Discretion in Charging and Plea Bargaining * R&L, pp. 355-59 (ending with questions about Problem 6), 361-65, 368-373 (ending before “inconsistent theories”), 377-79 (ending before “conditional agreements”), 380 (beginning with disclosure obligations)-88 (23) * MRs 3.8, 3.6 II.CONFIDENTIALITY, CONFLICTS, AND CONTACTS4 Class 6. Introduction to the Attorney-Client Privilege and Confidentiality; Organizational Clients: Who is the Client and How Does the Attorney-Client Privilege Apply? * R&L, pp. 236-52 (skipping examples of what constitutes a prima facie case at end of 252), 267-77 (26 ) * Sharon Cohen, “A 26-year-old Secret Could Free Inmate,” AP, http://news.yahoo.com/s/ap/20080412/ap_on_re_us/the26_year_silence. * Amanda Bronstad, “Ex-Broadcom Exec Urges Court to Sustain ‘Misconduct’ Finding Against Irell & Manella,”