CHAPTER 10 FUNCTIONAL ETHICS AND THE MODEL RULES

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 10
FUNCTIONAL ETHICS AND THE MODEL RULES
Stanley W. Lamport
Cox, Castle & Nicholson LLP
Los Angeles, CA

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STANLEY W. LAMPORT is a Partner with Cox, Castle & Nicholson LLP, in Los Angeles, C A. Stan is consistently recognized as one of California's leading land use and entitlement lawyers, as well as a leader in the field of lawyer professional responsibility and ethics. Stan has a full-service land use and real estate development practice that includes representing clients in connection with project acquisition, entitlement strategy, transactional issues, project processing and advocacy, California Environmental Quality Act (CEQA) compliance, and litigation. He has represented clients in cities and counties throughout California, and is widely known for his work in the California coastal zone. Stan has been listed in The Best Lawyers in America and as one of the Southern California Super Lawyers in the field of land use and zoning law for many years. He teaches courses on land use law and CEQA to government agency planners, environmental professionals, lawyers, and developers throughout California. He has been qualified as an expert witness in land use law and legal ethics in numerous cases. Stan has been active in the field of legal ethics for 25 years. Since 2001, Stan has served on the State Bar's Commission for the Revision of the California Rules of Professional Conduct, a 13-member body appointed by the State Bar in consultation with the Chief Justice of the California Supreme Court to revise and update the California Rules of Professional Conduct. Stan served six years on the California State Bar's Standing Committee on Professional Responsibility and Conduct during which he served as the committee's chair. He is a former chair of the Los Angeles County Bar Association's Committee on Professional Responsibility and Ethics. He is the co-author and editor of a treatise on lawyer conflicts of interest and is a frequent lecturer, consultant and expert witness on the subject. He received his J.D. from Northwestern University Law School.

Introduction

I have spent 29 years in the field of lawyer ethics, including nine years on the California State Bar's first Commission for the Revision of the Rules of Professional Conduct. If my odyssey accomplished nothing else, it allowed me to organize my thinking on the question of what we should be trying to accomplish with rules of professional conduct and to develop a framework to evaluate rules in a consistent way.

I am a functional ethicist. I believe that ethics follows duty and duty follows function. In other words, there are core functions of lawyering. Lawyer duties exist to assure lawyers fulfill those core functions. Ethics and professional responsibility are expressions of those duties in a given set of circumstances. This article addresses this approach in the context of the ABA Model Rules of Professional Conduct ("Model Rules"),

There are two core functions of lawyering - (i) representing and advising clients and (ii) the administration of justice. In the words of the preamble to the Model Rules, "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."¹

This article focuses primarily of the first of those two core functions - the representation and advising of clients.

In a very practical sense, a legal system works if people are empowered to use it. It fails when people are disconnected from the law. Lawyers are the vehicle by which the law is communicated to the public and through which the public can use the law in their lives. This function can be carried out in several different ways. The preamble to the Model Rules observes:

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.

All of these share the characteristics of being ways in which law is communicated to the public and through which the public can use the law in their lives. Having lawyers operate as a profession assures a requisite degree of knowledge and some degree of consistency in the dissemination of information about the law. Regulating the profession

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provides a degree of quality control to assure that the profession provides the foregoing functions.

However, the profession cannot serve its purpose if the public will not use the service. In other words, we want people to use lawyers so that the profession can be the vehicle through which the law can be communicated to the public and that the public can use the law in their lives.

There are certain prerequisites for that to occur. First, people will not consume the service at their peril. The lawyer-client relationship is fundamentally a voluntary agency relationship in which a lawyer, as an agent, agrees to work for the benefit of a client, as a principal.² "A lawyer is an agent, to whom clients entrust matters, property, and information, which may be of great importance and sensitivity, and whose work is usually not subject to detailed client supervision because of its complexity."³ Those characteristics of the client-lawyer relationship make clients vulnerable to harm.⁴ We cannot expect people to employ lawyers if they are at risk in doing so.

Second, lawyers need to be in a position to do for clients what clients would otherwise be able to do for themselves if they had the skill, training, experience, knowledge and objectivity to do so. If lawyers can't do for clients what clients can do for themselves, we leave it to clients to do those things.

The core duties of lawyering exist to assure these basic functional requirements are met, which can be understood when the basic functional prerequisites of the lawyer-client relationship is examined.

Assuring Clients Do Not Engage Lawyers at the Peril

Many of the commonly recognized core duties of lawyering exist to assure that the public will not consume the service at their peril. There are three primary considerations at this level (i) the ability to impart information to a lawyer without fear of consequence, (ii) the ability to entrust a matter to a lawyer without fear of consequence, and (iii) the ability to maintain control of a client's affairs. In each case, there is a core set of duties that exist to advance these basic functional prerequisites for legal professional to serve its purpose.

A. Imparting Information Without Fear of Consequence

The most widely recognized of those duties is confidentiality. People will not consume the service if they must communicate with a lawyer at their peril. At the same time, "Adequate legal representation in the ascertainment and enforcement of rights or the prosecution or defense of litigation compels a full disclosure of the facts by the client to his attorney. Unless he makes known to the lawyer all the facts, the advice that follows will be useless, if not misleading." (City & County of S.F. v. Superior Court (1951), 37 Cal.2d 227, 235.)

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A duty of confidentiality allows clients to communicate with a lawyer about how the law applies to their most intimate concerns without fear of consequence.

In the Model Rules, the duty of confidentiality is expressed in Rule 1.6(a), which states:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). ⁵

In explaining the purpose of this duty, Comment [2] to Model Rule 1.6 states:

[The duty of confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct.

The Comment underscores that the purpose of the duty is to assure that a client can communicate fully with a lawyer without fear that the information will be revealed. In the same vein, Model Rule 1.8(b) prevents a lawyer from using information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by the Model Rules. Model Rule 1.9(c) extends the same protection to former clients. It states:

(c) A lawyer who has formerly represented a client in a matter or whose present or former

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