Introduction: Multidimensional Lawyering and Professional Responsibility (original) (raw)
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The Multi-Lawyered Problems of Professional Responsibility
SSRN Electronic Journal, 2000
The ethics rules that lawyers live by order behavior and provide an architecture through which they perceive issues and problems. In this article, Professor Cohen addresses an area of professional responsibility that has thus far received inadequate attention from either the Model Rules or the Model Code and was not improved upon significantly by the Ethics 2000 revisions. Specifically, Professor Cohen posits that a "general blind spot in the ethics rule architecture" exists by virtue of the failure of the ethics rules to deal in a comprehensive and systematic way with the problem of multiple lawyers representing, or owing some fiduciary obligations to, a client in a particular matter. The article begins by laying the foundation to think about multilawyered problems. Professor Cohen introduces a taxonomy based on the variety of structural and legal relationships among lawyers and the client. He then proceeds to examine how, in a situation where multiple lawyers are present, the multiple lawyer relationship affects, and is affected by, the professional responsibilities of the lawyers and the fundamental concerns of the law of lawyering-competence, confidentiality, and conflicts of interest. Professor Cohen applies an approach he previously developed based on the potential for collusive behavior in agency relationships to illustrate how the presence of multiple lawyers can exacerbate problems already inherent in this situation. Professor Cohen concludes with the hope that with the architecture developed in this article, multilawyered problems can receive the examination and coverage not accomplished by the Ethics 2000 revisions.
The Central Moral Tradition of Lawyering
Hofstra Law Review, 1990
Compare ABA RULES DRAFT, supra, Rule 1.7(c)(2), reprinted in PROFESSIONAL RESPONSIBILITY , supra, at 83 (allowing a lawyer to disclose a client confidence "to the extent it appears necessary to prevent or rectify the consequences of deliberately wrongful act by the client.") with MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinafter ABA RULES] (adoting the rule on confidentiality of information but deleting 1.7(c)(2)). See also Joint Report, supra note 1, at 1162 (emphasising that the lawyer's primary obligation is to the legal system.) 1 Lawry: The Central Moral Tradition of Lawyering Published by Scholarly Commons at Hofstra Law, 1990 4. See generally ABA RULES, supra note 3. In the final version of the ABA Rules, specific rules replaced distinct roles. Compare id. Rules 2.2, 2.3 with ABA RULES DRAFT, supra note 3, Rules 5, 6, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 126-34 (noting the de-emphasis on the variety of roles lawyers play as compared to the description in the Joint Report, supra note 1). Of course, the narrowing of the exceptions to the confidentiality rules is a clear substantive change. Compare ABA RULES DRAFT, supra note 3, Rule 1.7, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 83 with ABA RULES, supra note 3, Rule 1.6. 5. This, of course, is the question that is truly at the heart of the moral inquiry into the ethics of lawyers. See generally Wasserstrom, Roles and Morality, in THE GOOD LAWYER: LAWYER'S ROLES AND LAWYER'S ETHICS 25 (D. Luban ed. 1983) [hereinafter THE GOOD LAWYER] (examining how a person's role enters into the deliberation and assessment of the morality of her actions); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976). But see Drinker, Some Remarks on Mr. Curtis' "The Ethics of Advocacy," 4 STAN. L. REV. 349 (1952) (stating that "no man can be either too honest, too truthful, or too upright to be a thoroughly good lawyer."). Thus under the older tradition, no conflict existed.
Ethics of Lawyers , 2024
The ethical landscape of the legal profession is intricate, influenced by cultural norms, technological advancements, economic factors, and evolving societal expectations. This complexity necessitates a nuanced understanding of the interplay between moral values and legal rules. While ethical values such as integrity, fairness, and loyalty form the foundation of professional conduct, legal rules provide essential boundaries and enforceable guidelines. The advancement of digital technology and globalization has expanded the scope of legal practice, posing challenges to traditional ethical frameworks. Economic pressures and competition further complicate ethical standards, highlighting the need for a robust ethical foundation within the profession. While rules offer certainty, dynamic nature and effectiveness, they do not define ethics but guide professionals in upholding moral standards.
Moral Responsibility in Professional Ethics
Profits and Professions, 1983
Professor Postema argues for a new conception of professional ethics in wlhich lawyers must acknowledge personal responsibility for the consequences of their professional conduct. He suggests that a new code of professional responsibility is required because the current Code allows lawyers to ignore the social and moral costs of their actions, and do as professionals what they would not do as indiciduals. Lawyers, like other professionals, acknowledge gravely that they shoulder special responsibilities, and believe that they should conform to "higher" ethical standards than laypersons. 2 Yet, lawyers also claim special warrant for engaging in some activities which, were they performed by others, would be likely to draw moral censure. 3 Skeptical of this claim to special license, Macaulav asked "'[w]hether 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 these appendages, he would think it wicked and infamous to do for an empire."1 4 This conflict may trouble the layperson, but for the lawyer who must come to grips with his professional responsibilities it is especially problematic. Montaigne offered one solution, the complete separation of personal and professional lives. "There's no reason why a lawyer ... should not recognize the knavery that is part of his vocation," he insisted. "An honest man is not responsible for the vices or the stupidity of his calling." 5 The key to maintaining both professional *Associate Professor of Philosophy, University of North Carolina at Chapel Hill. A.B., Imaged with the Permission of N.Y.U. Law Review HeinOnline-55 N.Y.U. L. Rev. 63 1980 7 See M. Freedman, Lawyers" Ethics in an Adversary System 27-42 (1975). 8 See Code, supra note 2, Canon 4, especially EC 4-1, EC 4-5, DR 4-101(A). DR 4-101(B). DR 4-101(C)(3). 9 See id. Canon 7, especially EC 7-27, DR 7-102(A)(4). (5). DR 7-IO2tBhlI). Also see ABA Project on Standards Relating to the Prosecution Function and the Defense Function ยง 7.7 (Approved Draft 1971). 1o I borrow this term from Wasserstrom, Lawyers as Professionals: Some Moral Issues. 5
Central Moral Tradition of Lawyering, The
Hofstra L. Rev., 1990
Compare ABA RULES DRAFT, supra, Rule 1.7(c)(2), reprinted in PROFESSIONAL RESPONSIBILITY , supra, at 83 (allowing a lawyer to disclose a client confidence "to the extent it appears necessary to prevent or rectify the consequences of deliberately wrongful act by the client.") with MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinafter ABA RULES] (adoting the rule on confidentiality of information but deleting 1.7(c)(2)). See also Joint Report, supra note 1, at 1162 (emphasising that the lawyer's primary obligation is to the legal system.) 1 Lawry: The Central Moral Tradition of Lawyering Published by Scholarly Commons at Hofstra Law, 1990 4. See generally ABA RULES, supra note 3. In the final version of the ABA Rules, specific rules replaced distinct roles. Compare id. Rules 2.2, 2.3 with ABA RULES DRAFT, supra note 3, Rules 5, 6, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 126-34 (noting the de-emphasis on the variety of roles lawyers play as compared to the description in the Joint Report, supra note 1). Of course, the narrowing of the exceptions to the confidentiality rules is a clear substantive change. Compare ABA RULES DRAFT, supra note 3, Rule 1.7, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 83 with ABA RULES, supra note 3, Rule 1.6. 5. This, of course, is the question that is truly at the heart of the moral inquiry into the ethics of lawyers. See generally Wasserstrom, Roles and Morality, in THE GOOD LAWYER: LAWYER'S ROLES AND LAWYER'S ETHICS 25 (D. Luban ed. 1983) [hereinafter THE GOOD LAWYER] (examining how a person's role enters into the deliberation and assessment of the morality of her actions); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976). But see Drinker, Some Remarks on Mr. Curtis' "The Ethics of Advocacy," 4 STAN. L. REV. 349 (1952) (stating that "no man can be either too honest, too truthful, or too upright to be a thoroughly good lawyer."). Thus under the older tradition, no conflict existed.