PR OUTLINE
· Three theories of legal ethics:
o Wal-Mart Theory: money back if you don’t like it
§ Maximize profits over the long run
§ Lawyers act in ways that is good for business
· Sometimes, what’s good for business isn’t ethical
§ Goodwill
§ Lawyers can be counted on to do what’s good for business
§ Exceptions:
· Lawyers aren’t always economically rational
o I.e., addictions, substance abuse, emotional issues, other external problems
· Lawyers can do something bad to client that client can’t protect himself from
o I.e., if consumer can’t evaluate for himself
o Lawyers are people:
§ Incentives to which they respond also drive other people
§ Indistinguishable from other similarly trained professionals
§ Lawyers have flaws
· No worse than anyone else, though
§ Lawyers’ work can be boring and not fun – just like all jobs
o Legal ethics is not an oxymoron:
§ Nothing inherently unethical about being a lawyer
§ People get confused
· Lawyers are agents: a client may ask a lawyer to do something immoral
o Problem isn’t the lawyer, it’s the activity
o Lawyers just provide a service
§ Nothing unethical about a contingent fee
· Lawyers are a transaction cost. But they also add value
o Lawyers’ services may improve society
§ I.e., lawyers save other people time whose time is better spent doing what they’re good at
o Lawyers help inventors, entrepreneurs, and enforce rights.
§ Correlation between number of lawyers in society and society’s success
· Poor people aren’t necessarily better than rich people.
· Lawyers who make less money aren’t necessarily better than lawyers who make more money
· Professionalism/Crass Commercialism:
o Professionalism:
§ Special training
§ Client can’t evaluate quality of service received
§ Clients must trust service provider. Burden is on professional to protect client’s interests.
§ Self-Regulation
o Crass Commercialism:
§ For profit, vs –
§ What’s right
§ Self-interest/client’s interest
§ Access limited to those who can afford it
§ Regulation
o Bad Aspects of professionalism:
§ Self-policing
§ Less competition – lower quality, higher prices
§ Newcomers to the profession face barriers to entry:
· Training
· Finding clients
· Class bias (white men)
· Other forms of regulation besides self-regulation:
o Mixed group
§ Lawyers
§ Lay people
o No regulation at all
o Federal regulation
· Sources of laws governing lawyers:
o 4-5 major constraints on the legal profession:
§ constitutional law
· 1st Amendment (speech)
· 6th amendment (effective assistance of counsel)
· 5th and 14th amendment (due process)
· source of authority for state bars
§ state constitutions
§ courts
· interpret rules and constitutional provisions
§ State Bar Associations and Committees
· Interpret Bar rules, issue advisory opinions
§ American Bar Association
· No authority per se, but they articulate model codes that must be adopted by the states to have effect
o Model Rules of Professional Conduct
§ Like a restatement
o American Law Institute
§ Restatement
o In TX sources of rules are:
§ US constitution
§ TX constitution
§ TX Supreme Court – issue rules and dispose of cases
· Source of authority in Article II, Section 1 of TX constitution
§ TX government code – title II
· State conflicts
o 4 possibilities for solving choice of law problem:
§ law that applies is:
· where admitted to the bar
· location of court
· location of client
· predominant effect of atttorney’s conduct
o TX approach and ABA approach are different:
§ ABA model rule 8.5:
· Provisions:
o Jurisdiction where admitted if only in 1
o If conduct involves proceeding before court, then their rules apply
o If licensed in more than 1 jurisdiction, look either to where lawyer principally practices, or look to where conduct clearly has a predominant effect
· Problems with the rule:
o What happens when each jurisdiction’s choice of law provisions differ?
§ Local counsel can solve this problem
o “predominant effect” and “principally practices” are vague
o if licensed in two states, you’re treated differently than if you were admitted in 1 state – and the behavior is the same
§ TX Rule (on handout)
· Lawyer can be answerable in TX for conduct occurring in another jurisdiction if it’s misconduct under 8.04
o So a TX lawyer in LA doing bad things can still be punished in TX
§ But what if the conduct is okay in LA and the lawyer is also admitted in LA?
· (b) includes punishment for types of lawyer advertising
o this is very rare
o an ad okay in another jurisdiction intended to be received by clients in TX is subject to discipline if it breaks the TX rules
o (1) prevents circumventing TX’ ad review process by broadcasting ads in another state
o (2) a letter applies, too – like in (2)
· Getting Clients:
o 3 ways:
§ go to a firm that has them
§ work for the government
§ work as in-house counsel for a corporation
o How do you get clients at the beginning?
§ Market yourself
· Advertising is the obvious way to do this.
· Until 1979 Bates case, you couldn’t
o Six reasons for blanket prohibition on attorney advertising:
§ Effect on professionalism
§ Inherently misleading nature of attorney ads
§ Effect on administration of justice
§ Undesirable economic effects
§ Effects on quality of service
§ Enforcement difficulties
o Virginia Pharmacy: law violates 1st amendment by prohibiting pharmacists from advertising price
§ Why?
· Ads disseminate info, which is goof.
· VA ban assumes that information is bad. Court disagrees, encouraging the public to be informed
· These are all 1st amendment cases:
o We distinguish between commercial and political speech
§ Political speech gets a more lenient standard because it’s the basis of democracy
§ Commercial speech is left more for the states to regulate
o 1980 Central Hudson: prevailing law – 4-prong test:
§ does the speech that the state is seeking to regulate come with in the 1st amendment?
· False, deceptive, or misleading speech doesn’t
· Proposing an illegal transaction doesn’t either
§ Does the government regulation advance a substantial governmental interest?
§ Is the interest claimed to be advanced by the government regulation directly advanced?
§ Are the means of advancing the government interest more extensive that necessary to serve that interest?
o 1989 SUNY v. Fox: Scalia elaborates on meaning of 4th prong
§ means must be narrowly tailored, but not necessarily least restrictive means possible
o Bates:
§ Supreme Court didn’t like the 6 reasons:
· Effect on professionalism:
o Can’t really selflessly serve when you need money
o Being motivated by profit isn’t inherently bad
o Ads won’t diminish dignified image of professionalism
o Other professions charge, and that’s not bad
o Ads let people know that a service is available.
o No connection between ads and adverse effects of public’s view on profession
· Inherently misleading nature of attorney ads:
o Supreme Court: not so. State bar has a clinic with services offered at standardized prices. This is not bad.
§ Also, clients are sophisticated enough to know what should and shouldn’t have a standard price
· Effect on Ads on Administration of Justice
o More people may sue if there are legal ads
o Ct says: asserting one’s rights is a good thing!
o People shouldn’t suffer silently
· Economic effects of ads are undesirable:
o Because ads cost money, cost of lawyer’s work in higher
§ But this is simplistic:
· Total cost is price + search costs
· Price with ads could be actually lower:
o More ads, more competition = lower prices
· Search costs are lower because ads make it easier to find the service
§ Also, ads reduce barriers to entry for women and minorities because they don’t have to market in the good ‘ol boys network
· Effect of ads on the quality of service
o Argument: ?
§ It’s a bad one – no correlation between advertising and doing a bad job
§ In fact, because ads cost $, only successful people can afford to do it
· Difficulties of enforcement
o Because it’s hard to deter bad people from being bad, just deter everyone
o Seven restrictions on advertising still permitted:
§ May prohibit false, deceptive, or misleading ads
§ May prohibit ads involving illegal transactions
§ May regulate claims as to quality of services
§ Restraints on in-person solicitations are allowed
§ May require warnings to prevent misleading the public
§ May have reasonable time, place, and manner restrictions
§ May have special regulations for electronic media
o Ohralik
§ In-person solicitation
§ What’s the difference between in-person solicitations here and the print ads in Bates?
§ Disadvantages of allowing in-person solicitations:
· Captive audience
· More vulnerable
o Hospitals
· Less visible
· Coercion
· Experts at persuasion
· Adverse selection
o The worst lawyers show up at the bedside (maybe)
· Public appearances
o In-person solicitation makes the profession look eager and greedy
o Not respectful for injured person’s condition
§ Advantages of allowing in-person solicitations:
· Better to get evidence early than late.
o But maybe there should be a cooling off period, like door-to-door sales
o But police are supposed to be doing this already, and this is free
o And we want some regulation here
· Economic advantage
o But still have adverse selection problem
§ 2 big concerns about in-person solicitation:
· circumstances especially likely to pose dangers
o this makes prophylactic rules important
· element of pecuniary gain
o concerns go away when $ leaves the picture
§ What did court conclude?
· Undue influence, privacy concerns, protecting consumers
· Concern with maintaining standards for administration of justice
o Skepticism about this. What does this mean?
· Concern that lawyers’ judgment will be clouded with self-interest in this situation
o Huh? What is it about in-person solicitation that makes this more likely?
§ 2 possible remedies for concerns of attorney misbehavior:
o impose a prophylactic rule – a ban on the behavior, or
o attorney discipline should occur only if there is actual, proved harm to the solicited individual
§ Court prefers absolute ban.
· 2 reasons:
o likelihood of harm occurring in this situation. More likely than not that in-person solicitation causes harm. And there’s no real disadvantage in waiting.
o Not clear what other rule would work
§ Baker proposes a cooling-off period. Court doesn’t look to proposals like that for fear of evidentiary problems.
· Same evidentiary problems in lawyer’s office.
· So real concern may be a combination of the factors
o Edenfield
§ Solicitations by a CPA
§ Court sats that CPA in-person solicitations are fine
§ Court’s justifications for differentiating CPAs:
· CPAs aren’t trained in persuasion
· CPA’s client is typically sophisticated
· Manner of solicitation is conducive to rational decision-making
o In-person solicitation followed by a meeting arranged at client’s convenience
· Invasion of privacy isn’t a concern – it’s an office, not a hospital room
o Zauderer – print ad
§ Tasteless illustration, but court won’t ban all illustrations
§ 2 important aspects:
· soliciting legal business through an ad that contains info regarding specific legal problems
o court views this as containing advice
· ?
§ court sees no problem here with respect to Ohralik standard
§ an entire prohibition is unnecessary given Ohralik’s 5 morals.
§ Print ads don’t pressure people.
§ Info is presented in a way conducive to contemplated choice
§ Court isn’t concerned that print ads could increase litigation
· This is good that people are seeking a remedy!
§ We don’t need a broad prophylactic rule because there’s no enforcement problem
· With a print ad, unlike an in-person solicitation, we can examine what information is provided
§ Contingent fees were mentioned in the ad, without mention of paying for expenses
· Court says it is appropriate to require “warnings and disclaimers.” So full info about fees would be required
§ O’Connor Dissent:
· Otherwise a free marketer, she gets agitated about whether marker will work
· Says ad is like a free sample, which can be more harmful than beneficial
o Possibility for confusion and deception: professional services are complex, and consumer can’t gauge quality of free sample
§ But if they can’t gauge it anyway, why is a free sample bad?
· Because it leads to in-person contact, O’Connor says that Ohralik concerns come into the picture
o Huh? How else do you contact an attorney?
o Shapiro
§ Targeted mail
§ Problematic? Creepy? Can cause duress. “How do they know this about me?!?”
§ Issue: wholesale prohibition on targeted mailings.
§ Court says: we’ve allowed this other stuff. Because a targeted mailing is more efficient, is it worse?
· Undue influence, yes, but are the susceptibilities exploited?
o Court says an outright ban is unnecessary.
§ In TX, a targeted mailing must tell people how they got their info.
· Also require mailing to be labeled “advertisement.”
· Must submit letter and envelope to Bar Committee
· Can’t look like a legal document
§ Lesson: it’s enough to have these targeted mailings reviewed
§ O’Connor dissent: (+ Rehnquist and Scalia)
· Back to Central Hudson: there is a compelling government interest – promoting high ethical standards of legal profession
o Huh? What’s the connection?
· Says ban will act as a day-to-day reminder to attorneys of why it is improper to regard the profession as a trade
o Huh?
o Fla. Bar v. Went For It
§ Shapiro dissenters + Scalia
· Willingness to put restrictions on solicitations suggests that these people never worked for a living
§ Lawyers who solicit accident victims by mail are prohibited until 30 days after the accident from doing it
§ Rule challenged: temporary ban on solicitng accident victims or their survivors
· Prohibits solicitation for 30 days by mail
§ Upheld by court
· Makes sense: for these 30 days, it’s reasonable
o Plenty of people to gather evidence besides a lawyer
o For those 30 days, those people have lots to deal with. 30 day waiting period won’t create any particular harm
§ 2 questions remain:
· if partial reason for 30-day delay is that it makes the profession look bad, wouldn’t that suggest that the activity should be completely banned?
o Wouldn’t market weed out this behavior on its own since it’s unsavory?
§ Well, there is a time when people would be unusually susceptible to this solicitation. We want to protect people from that
· Concern: there are market failures. There are situations where people are systematically irrational.
o Lawyers are people. Lawyers may sort of naturally behave badly in these situations.
§ And it only takes one.
o In Re Primus
§ Solicitations of ACLU
§ Lawyer gets an idea for a great lawsuit, so he contacts the ACLU to find a client who had standing
§ ACLU goes to non-members to solicit business
§ Question: should they be treated differently from other lawyers?
· (it’d be problematic under Ohralik)
§ ACLU contends it is different: for them, litigation is a form of political expression, not a method of resolving private disputes.
· Suggests that they have a more powerful 1st Amendment right
o Not commercial speech – political speech
§ And political speech gets full 1st amendment protections
§ ACLU also argues: they don’t make $ off this, so it’s not commercial speech. (Some $ may go to organization, but attorneys themselves don’t get it)