Qthically Speaking
| Publication year | 2012 |
| Pages | 48 |
| Citation | Vol. 35 No. 2 Pg. 48 |
Vol. 35, No. 2, 48. Qthically Speaking
Issue: April, 2012
Carl M. Williams Professor of Law and Ethics
University of Wyoming College of Law
Some Reflections After Teaching,Thinking and Writing About Professional Responsibility for Over Twenty Years
Since 1991,I have been teaching, thinking, and writing about Professional ResponsibiUty ("PR"). Although I didn't plan to spend most of my professional life with PR, that is what happened. During that time, my thoughts about PR have changed a bit, and now seems to be a good time to write about that.
The Accidental PR Instructor
When I joined the faculty of the UW College of Law, PR had no interest for me. Subjects such as Civil Procedure, Administrative Law, and supervising the students in a clinical program were of much more interest to me. As I quickly learned, however, a new professor does not get to choose. Rather, he or she gets what is left or teaches what the college needs. Soon after I arrived, the college needed a PR teacher, and that's how PR became a major part of my life.
In the spring of 1990, Bob Keiter, who was then the Interim Dean of the College of Law, asked me if I would be interested in teaching the PR course the following spring (1991) semester (PR is the only required course at all American law schools accredited by the ABA.) When the request was made, I was the only member of the college faculty who did not have tenure, so there was only one correct answer. "I would love to teach that course," I said (thinking I would teach it for a year or two and then be able to choose a course I really wanted).
As soon as the dean left my office, I pulled out the lawyers' code of ethics, which I had not read since I had taken PR nearly a decade earlier. To my surprise, the rules I read were different than those I remembered, both in format and in content. (It turned out that the Model Code of Professional Responsibility which I had learned had been replaced with the Model Rules of Professional Responsibility, a form of which had been adopted in many states, including Wyoming.) In short, I had been assuming that the code I had learned was still in effect-an assumption that was totally incorrect.
Thus began my career as a PR teacher and my career as a PR scholar. Though I did not expect to teach the course for more than a few years, the subject, it turned out, was very interesting to me and become a focus of my teaching and the main focus of my research and writing.
Beginning with the spring semester of 1991, I taught the required PR course at the college every year, except for one, through 2011. During that time, some 1,500 students endured the course. Whatever they learned, I learned more. Each year I read the Rules, and I read a lot of cases and other materials about them, and the other topics, such as the attorney-client privilege, that the PR course covers. I also began to speak outside the law school and to write about PR. By now, I have presented over 100 continuing legal education programs (mostly in Wyoming, but in several other states, too), written this ethics column for over 16 years, written dozens of law review articles, and even a book (the second edition of which should be out this year).
I suspect that there are some folks who have read the rules and other PR materials more than I have, but I doubt that anyone has had the unique opportunity I have had. While at the college, I have been the Faculty Supervisor of the Legal Services Program ("the clinic")-the clinic has represented over 1,000 clients during my tenure, and I have continued the academic study of PR during that time. That combination has given me a somewhat different perspective on PR than some more "pure" academics appear to have.(fn1) There is, for example, nothing quite like confronting the issue of candor to a tribunal in the context of representing a client who has disappeared with cases pending before a circuit court, a district court, and the state supreme court.
This semester. Dean Easton, who had taught PR at the University of Missouri before coming to Wyoming, agreed to teach the basic PR course, leaving me free to pursue other PR issues that had become of interest to me, through a course with the catchy title of "Advanced Professional Responsibility." (Actually the subtitle of the course tells a bit more about it: "How to Lead a Professionally and Personally Satisfying life as a Lawyer.")
As I do not expect to teach the basic PR course again, I have found myself thinking about what I've learned during the last few decades. Not surprisingly, some of my views about PR have evolved (since I am not running for political office, I can just tell the truth. They've changed.) While my ruminations may not be of interest to anyone else, they are of interest to me, so I think I'll write about them.
What is PR?
When I first began teaching PR at the college, it was a two-hour class that focused on and covered the Rules of Professional Conduct ("the Rules"). It soon became apparent that many more things should be covered. The Rules, for example, do not address important questions such as what is the practice of law and when does a lawyer-client relationship exist? Further, the attorney-client privilege is part of the law of evidence, and the work product doctrine is enshrined in the Rules of Civil and Criminal Procedure. The list goes on and on. One of the first modifications to the course, therefore, was to have it expanded to three hours per week, thus allowing for the coverage of many more topics (all of the foregoing, and then some, are covered by the Multistate Professional Review Exam, which is required for admission to the Wyoming bar.(fn2)
Having additional course time did not answer the more difficult question, which I was never able to satisfactorily answer, of what to cover? Along with that question is another, how should one organize the material? In an effort to answer both questions, I examined countless PR textbooks, never finding one that made sense to me. Finally, about ten years ago, I decided to prepare my own materials, and use them with the Rules and other materials prepared by the ABA in its Compendium of Professional Responsibility Rules and Standards.
Not surprisingly, I preferred my materials to the available texts. Each year, however, I reorganized the materials, searching for an order that made sense. I don't know that I ever found one, but some of my struggles illustrate some of the difficulties with the Rules and with the topic in general.
The Rules are divided into three parts: (1) the Preamble and Scope; (2) the...
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