Upenn Law Professional Responsibility Outline Professor Fox
...the “law governing lawyers.” These two sources are: (1) the lawyer codes; and (2) the application of general law to lawyers.
1. Ethic Codes and Model Rules: Every state has an adopted code of ethics for lawyers that operate as a set of mandatory legal rules governing lawyer conduct. In addition, the American Bar Association (ABA) has adopted a series of three model ethics codes that have served as models for state adoption. Because the ABA is a voluntary, non-license granting organization, though, none of these three has ever been directly controlling on a lawyer’s conduct.
i) State-Adopted Codes Are Controlling: The states have adopted ethic codes. Although all but one of the state-adopted codes are based on the ABA models, it is the state-adopted code, not the ABA model, that actually controls in the particular jurisdiction. State-adopted lawyer ethic codes either by legislation or by rule-making action by the state’s court of last resort.
2. Case Authority: In several ways, courts make the law governing lawyers…
i) Interpretation of Ethical Codes: Courts have interpreted the existing ethic codes and, as such, make the law of lawyering in their interpretive activities in the same way that courts make the law in interpreting statutes.
ii) Inherent Power to Regulate Lawyers: Because courts have inherent powers to regulate lawyers (who are officers of the court), a common law of lawyer regulation also exists.
3. Other Substantive Law: The law of a wide variety of other substantive areas also forms an essential part of the law of lawyering. This includes – but is not limited to – contracts, torts, fiduciary duty law, agency law, criminal law, procedural law, antitrust law, and other various administrative regulations.
B. Role of Lawyers
1. Morally-Neutral Adversarial Role: The standard ethical justifications for lawyers’ neutral...
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