Dealing with ethical issues

• Author: Stewart Edelstein
• Pages: 235-254

235

CHAPTER ELEVEN

DEALING WITH

ETHICAL ISSUES

We begin our discussion of ethics w ith a word about zeal. As trial lawyers,

we have an ethical obligat ion to represent our clients zealously. The cur-

rent M odel Rul es of Pro fession al Cond uct (the “Model Ru les” or “Rules” )

provide in the preamble: “As advocate, a lawyer zealously asserts the cli-

ent’s position under the rules of the adversary s ystem.” This language is

toned down from the Amer ican Bar Association’s first code of ethics, pub-

lished in 1908, which included the admonition that “a lawyer owes entire

devotion to the interest of the client, warm zeal in the maintenance and

defense of his rights and the exert ion of his utmost learning a nd ability”

(emphasis added). The first Model Code of Professional Responsibility, in

1969, tempered “warm zeal” in Canon 7: “A lawyer should represent a cli-

ent zealously within t he bounds of the law.” In 1983, the ABA rewrote the

ethical ru les once again, relegating “zea lously” to the preamble.

Despite this degradation from “warm zeal” in an et hical rule to

mere use of “zeal” as an adverb in only the preamble, we cannot allow

our zeal in representi ng clients to overcome our obligation to comply

with the eth ical rules. Compliance with ethical rules is an enormous

topic, the subject of numerous treatises. See, e.g., P R. J, W.

W H  G  C. H, J., T L  L

(Aspen Publishers 3d ed. 2000). An excellent source for state-by-state

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236 | H  S    T L 

ethics opinions is C ornell Law School’s American Legal Et hics Library,

at www.law.cornell.edu/ethics. The Restatement of the Law (Third) Gov-

erning Lawyers (American Law Institute 2012) covers most ethics issues,

except those pertaining to solicitation and advertising. To view the

most up-to-date version of the Rules, go to http://www.americanbar

.org/groups/professional_responsibility.html. If you are a member of

the American Ba r Association, get answers to ethics questions by going

to www.ambar.org/abaethicsearch. See appendix II I for other books on

ethics.

This chapter discusses some of the most common ethical issues we

confront as trial law yers, but not all of them. Chapter 12, which pro-

vides advice about marketing you r litigation practice, d iscusses eth ical

issues regarding promotion of your practice.

Some ethical ru les are easy to apply. You will not, for example, min-

gle client f unds wit h yours, dis close client conf idences to any one outside

the office (even to your spouse), or discuss a case wit h an opposing party

who is represented by counsel, without consent of opposing counsel. But

difficu lt ethical issues ar ise frequently for trial law yers. Ethical issues

are not all black and white; gray areas abou nd.

For example, opposing parties can discuss the case bet ween them-

selves, without counsel, but are there lim its on what you can suggest

your client says to the opposing part y? If the opposing part y is a cor-

poration represented by counsel, which employees of that corporation,

if any, can you talk to without fi rst seeking opposing cou nsel’s consent?

And what about former employee s of that corp oration? Some a nswers to

these and other eth ical questions may sur prise you.

The first chal lenge is to recognize ethical issues when they arise.

Otherwise, you could act unethically without even being aware of your

lapse. Whenever in doubt whether you are confronted with an ethical

issue, check the rules, and talk to someone knowledgeable about ethics.

This chapter applies the Model Rules and the ver y informative comments

that supplement those rules. If t he Model Rules apply in your jurisdiction,

they govern your conduct, including your conduct before any tribunal.

A tribunal includes a court , arbitrator, legislative body, administrative

agency, or other body acting in an adjudicative capacity. See Rule 1.0(m).

If different rules apply in you r jurisdiction, comply with them. In

addition to readi ng this chapter, read all the ethical rules that apply

in your jurisdiction, and attend seminars on ethics. Then test your

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