Law on Rice

I’m studying for my upcoming law school final in ethics (a/k/a professional responsibility or “PR”), a class I’m required to take in order to graduate. Even though I’m required to take professional responsibility, I think it’s teaching me a lot about what it means to be a lawyer.

Having been a corporate tool for so long, I was steeped in the morals of the marketplace. The lawyer’s (or the law shool’s) notion of fiduciary duties is refreshing and a little humbling.

Anyway, professional responsibility is a sprawling body of laws, duties, and judicial gloss that I–like so many law students before me–am struggling to get my arms around. Here’s what I’ve got so far: the 5Cs.

(1) Properly identifying the CLIENT. This is an outset problem that seems pretty simple until you realize that almost anyone who reasonably believes you are their lawyer has probably just become your pro bono client. The problem gets even worse with entity representation and closely held corporations.

(2) COMPLY with the bodies of law and the RPCs. That is, avoid becoming a primary perpetrator of crimes or a tortfeasor. And don’t let your client enlist you in the act secondarily. Withdraw if necessary. Also, watch your candor duties to the tribunal, to third parties, and issues of perjury.

(3) Keep CONFIDENCES. That is to say that any (yes “any”) information disclosed must be kept confidential–no gossiping. There are some mandatory and permissive exceptions under the RPCs, and there is always the attorney client privilege to consider too.

(4) Avoid CONFLICTS. This is a complex one that I’m still studying. It starts with fiduciary duties and with RPC 1.7.

(5) Be COMPETENT. Under this heading I’m including duties like communication, diligence, etc. I’m also lumping in malpractice. Oh yeah, reasonable fees and solicitation probably fit pretty well in here too.

I think that’s a pretty good way to keep most of it straight. Let me know what you think.

… Once I really start studying bankruptcy, this will probably be a big issue. One of my law profs shook her head in shock today. For now, I’m just noting that it’s noted.

I suppose after taking a beating over poor timing of financial bonuses, golfing trips, and etc. for the finance professionals over the past year, the editors at the Wall Street Journal figured someone else should share the limelight.

The article has an interesting sidebar showing the top fees paid in bankruptcy. Enron’s collapse tops the list at $756 million followed by WorldCom at $620 million. For the list, the authors cite Lynn LoPucki of UCLA Law.

This semester I’m taking professional responsibilty. Overall, it’s been an interesting exploration into the profession. It’s been down right eye opening.

For example, we’re currently debating where the dividing line between a client’s authority and the lawyer’s authority should be. Having been a former client, I expected that the ethics rules would have given me a great deal of control. I expected a client would get to draw the line broadly.

In some ways, the market gives clients a lot of control because a client can always fire her lawyer if the lawyer doesn’t give the client as much as she wants. That said, the ethics rules only give clients the right to control the objectives, not the means of the representation. True, the lawyer has to “consult” the client about the means, but this is left almost completely undefined. Much of the stuff I’ve read so far seems to do a surprising amount of hand wringing over the notion of giving clients too much control.

I don’t find any of this shocking, but it does explain why many clients complain that their lawyers don’t communicate with them enough. It’s baked right into the rules!

There’s a really important patent case on point that I’ll put up on Coderights tonight.

I had deal with outsourcing to India when I was a coder, now it looks like my new employers–law firms–are doing the same. And they are doing the same at an increasing rate during this recession.

This is the chief of Clutch Group on the Wall Street Journal.

Apparently, a big part of their growth right now comes from securities litigation. That makes a lot of sense.

I found it interesting that he assures us that the quality of the legal work is sufficient because he has an American “Stanford Harvard” lawyer managing the project managers. I don’t really know what he means by “Stanford Harvard” or if he meant to say he’s got a few lawyers.