This course satisfies the J.D. Professional Responsibility requirement.
Not open to students who have taken another two- or three-credit Professional Responsibility course. Evaluation: Open-book take-home final examination or, with permission of instructor, paper; class participation.
The course focuses broadly on the questions that typically arise in public interest practice and examines the extent to which ethical principles should/do vary by practice context. The course is intended for students who are interested in exploring ethical issues in this context, regardless of where they intend to work after graduation. The coursl comprises the following components:
A. Competing views on the role of the attorney
B. History of the regulatory structure of the profession
C. History of ethics requirements and teaching of professional skills and values in U.S. law schools
D. Does context matter? Should ethical rules apply across-the-board, or should they vary by practice area? Are the ethical issues faced by public interest lawyers common to the profession, or do/should they call for a special approach? Private clients often have money and a choice of lawyers. Poverty law clients have neither, and the attorney is therefore in a position of power relative to these clients. To what extent do existing ethical rules reflect this dichotomy and guide the lawyers in making decisions about client representation? (We will return to these questions at other points in the course.)
II. Ethical Decision Points
A. Career Choice.
We will examine the ethical issues inherent in specific career choices, both between public interest and other practice areas, and among different public interest organizational settings and specialties.
B. Formation of the Attorney-Client Relationship and Case Selection.
A lawyer often has freedom to choose which clients and cases to accept for representation. After examining the manner in which an attorney-client relationship may be formed, we will discuss the ways in which such choices are made in the public interest setting, the criteria, both explicit and implicit, for making such choices, and the values involved. We will also begin to discuss the "rationing" of time and services. Unlike a private attorney, for whom money dictates how much time the attorney will devote to a case, public interest lawyers must find some other basis for setting priorities and organizing time among clients and cases. How should this be done?
C. Client Representation.
Once a case has been accepted, how should the attorney approach the representation? What ethical issues confront the lawyer, and how should these be resolved? The following topics will be explored:
1. Confidentiality and privilege
2. Conflict of interest
3. Group and entity representation in the domestic and international contexts
4. Whose case is it? - The allocation of decisionmaking between the client and the attorney. How should case theory and choice of remedy be determined? How should settlements be negotiated? How should a lawyer balance the interests of the individual client v. the larger social mission and goals of the practice (e.g. deciding whether to appeal an adverse ruling, which may create unfavorable precedent; choosing between individual cases and impact litigation)?
5. The tensions between duties to the client and duties of candor to the tribunal and other parties and individuals
6. Unauthorized practice of law - restrictions on legal work that may be performed by nonlawyers
7. Restrictions on direct communication with persons who are represented by an attorney; restrictions on communication with unrepresented persons
8. Addressing unmet legal needs; the impact of government restrictions upon public interest practice and the ways in which these restrictions may affect ethical decision-making; the efficacy of pro bono practice
9. Re-examination of existing ethical codes in light of these discussions. Do these codes adequately reflect the specific concerns of public interest practice?