The Law and Ethics of Lawyering

Geoffrey C. Hazard Jr

Susan P. Koniak, Boston University School of Law

Roger C. Cramton, Cornell University Law School

George M. Cohen, University of Virginia School of Law

W. Bradley Wendel, Cornell University Law School

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Table of Contents

Teacher's Manual

Major changes include:

• Added Viner v. Sweet (Calif.) as the principal case on legal malpractice. Viner is a leading case on malpractice in transactional representation and the continuing importance of the causation element in malpractice litigation.
• Replaced Strickland v. Washington with the much more recent Lafler v. Cooper in the section in Sixth Amendment ineffective assistance of counsel. Lafler raises the interesting issue of the application of the prejudice prong of Strickland to the defendant’s rejection of a plea offer.
• Introduced the U.S. Supreme Court’s decision in Connick v. Thompson, in discussion of both prosecutorial misconduct and the importance of training junior lawyers to comply with their ethical responsibilities.
• In the discussion of restrictions on the unauthorized practice of law, included discussion about the Supreme Court’s Dental Examiners case and the Washington State experiment with limited-license legal technicians. Also added Janson v. LegalZoom (USDC, W.D. Mo.) as a principal case on the definition of the unauthorized practice of law.
• Revised and updated the discussion of advertising and solicitation, and added Alexander v. Cahill (2d Cir.) as a new principal case on advertising restrictions and the First Amendment.
• Extensively revised and updated chapter on litigation misconduct, including client perjury, Rule 11, and discovery abuse.
• Substantially revised and updated the discussion of legal education, particularly in response to criticism following the Great Recession and the decline in law school applications.
• Updated the materials on character and fitness, replacing the previous Hale case with the California Supreme Court’s decision on the application of Stephen Glass.
• Reorganized the materials on formation of the attorney-client relationship and malpractice.
• Replaced old cases with newer ones on contingent fees, business transactions with clients, and wrongful withdrawal from the attorney-client relationship.
• Added Board of Bar Examiners v. Warren (Maine) as new principal case on duty to report professional misconduct.
• Included new materials on the ABA’s recently added Rule 8.4(g), prohibiting discrimination by attorneys.
• Updated data and scholarship on diversity in the legal profession.
• Revised section on Morality of the Lawyer’s Role to provide a clearer explanation of role morality and the Standard Conception of legal ethics and a critique of this view, using excerpts from Brad Wendel and Robert Gordon.
• Updated the notes after Andersen to include material on Fed. R. Civ. P. 37(e) (duty to preserve electronic evidence) and recent cases on 18 USC § 1519 (Stevens, Russell, Yates)
• Added a note on Prohibited Assistance and Marijuana
• Complete revised material on regulatory law applicable to lawyers, deleting the material on tax shelters, and adding a discussion of ethics rules in regulatory agencies, recent cases challenging IRS Circular 230 rules, and the GM Ignition Switch Case (Valukas report).
• Replaced O’Melveny with two opinions by Judge Easterbrook involving the same fraud, but reaching different conclusions in malpractice claims brought against different law firms (Peterson v. Winston & Strawn LLP; Peterson v. Katten Muchin Rosenman LLP), and a new note about the in pari delicto defense.
• Updated the note on private actions against lawyers for aiding and abetting client fraud, including the recent Supreme Court case interpreting SLUSA, Chadbourne & Park LLP v. Troice, and the remand of the case to the Fifth Circuit, which used an expanded doctrine of attorney immunity under Texas law to dismiss the case.
• Deleted Klein, Schatz, and Enron, replaced one of the Refco cases with the Second Circuit opinion in the case, Pacific Investment Management Co. LLC v. Mayer Brown, and added a note on the Supreme Court decision in Janus Capital.
• Consolidated the material on the SEC and lawyer involvement in corporate fraud, including moving material on noisy withdrawal and Model Rule 4.1(b) from the confidentiality chapter to the corporate fraud chapter, and moving the discussion of Model Rule 1.13(b) and SEC Rule 102(e) to the end of the chapter to facilitate comparison with the Sarbanes-Oxley rules.
• Added a note to Upjohn on the attorney-client privilege in the international context (Wultz v. Bank of China)
• Added a discussion of Textron as a contrast to Adlman in work product note on anticipation of litigation
• Replaced Columbia/HCA with In re Pacific on selective waiver.
• Added a note on Lawyers as Statutory Whistleblowers
• Added a note on Mandatory Disclosure of Child Abuse, including a recent Indiana bar ethics opinion on the topic, to the material on disclosure to avoid substantial bodily harm
• Substantially revised last section on the Electronic Age, including the addition of California Bar Opinion 2015-193.
• Extensively updated the conflicts of interest chapter to include three new principal cases: Mylan v. Kirkland & Ellis (concurrent conflicts in transactions), Western Sugar v. Archer Daniels Midland (successive representation conflicts), and Dynamic 3D Geosolutions v Schlumberger (migratory lawyer). Deleted Brennan’s, Callahan, and Nemours as principal cases.
• Significantly revised notes on the aggregate settlement rule and screening of migratory lawyers in light of recent developments.

Learn more about this series.