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Chapter 1 ROLE OF LAWYER

A.

ROLE OF A LAWYER

Fundamental to any study of lawyer ethics is an appreciation of the lawyers role with respect to clients, the profession itself, the state and the public interest generally. The words of the lawyer codes themselves have a general nature. Their interpretation and understanding comes from reading them in the context of the lawyers role. Lawyers obviously play different roles depending on their place in the legal profession and the nature of their law practice or activity. Judges and prosecutors have fundamentally different roles from those of private lawyers. But even within the ranks of those we would usually call lawyer, different practice settings shade the lawyers role in different ways. Criminal defense lawyers have special responsibilities and duties; in-house corporate lawyers the same; lawyers for government agencies serve somewhat different interests than do private lawyers. Always consider the particular place of a lawyer in society when considering that lawyers proper course in a given circumstance. The role of lawyer, of course, will vary from one legal system to another. But some generalities can be drawn. Lawyers bring the law to non lawyers by advising clients and by drafting documents that make clients transactions work to serve the clients interests within legal constraints. Lawyers make the system of justice work. Their role is more active in the litigation process in common law countries, to be sure, but in civil as well as common law countries, the lawyer plays a crucial role in operating the system of justice, shepherding cases through the system. Lawyers play an important role in law making as well. Many lawyers serve in legislatures and parliaments and often lawyers are called upon to advise parliaments on the details of new laws. 1

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It is possible to have different views of what a lawyer does. Some may say that a lawyer is a business person, not unlike the barber, the doctor or the shop owner, providing a service to paying customers. Others will see a more public-abiding role for the lawyer, providing a service to paying clients but also maintaining an eye on the public interest, justice, and fairness of society. This difference in view will account for differing opinions about what a lawyer should do in a morally difficult position. In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so. To be sure, the market for lawyer services, even in the most well-established democracies, is tilted sharply toward the corporate world and toward those with means. But guarantees of the right to counsel in criminal matters, government funded legal aid for the poor (limited as it is), and pro bono activities of private lawyers, all combine to create some promise that the most important matters affecting the poor and the powerless will also be served by lawyers and the legal profession.

B.

THE ROLE OF THE LAWYER IN THE CIVIL AND COMMON LAW SYSTEMS

A common law system relies on court decisions as a source of law while a civil law system relies solely on statutes created by the legislature or administrative bodies. In a civil law system, therefore, the judge applies the law but does not create it. In a common law system, however, judges and lawyers must employ a more casuistic approach to legal thinking. Judges create a common law system gradually by deciding one case at a time building a body of law based on the collective wisdom of other judicial decisions. This different approach may lead legal professionals in a common law system to concern themselves more with the practical administration of the law while legal professionals in a civil law system may find themselves more concerned with theory and preserving the statutory framework as a coherent whole. The differences between the civil and common law systems also manifest themselves through dispute resolution procedure. Disputes in a common law system are resolved through an adversarial system. The two opposing parties investigate, collect and present the evidence and arguments before a passive factfinder. Judges typically only intervene to guarantee that the adversaries have equal opportunities to present their evidence and arguments to the

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factfinder. On the other hand, in a civil law system, judges exercise much more control over the scope and direction of the litigation. The dispute resolution process becomes more inquisitorial than adversarial. The lawyers in civil law systems proffer lines of inquiry and make legal arguments rather than collecting evidence and presenting it as common law parties do. Also, civil law trials do not follow the point-counterpoint format that common law trials do. Rather, the trials are more fluid, often becoming a series of hearings instead of one ultimate trial. 1. United States

Alexis De Tocqueville once stated that When one visits Americans and when one studies their laws, one sees that the authority they have given to lawyers and the influence that they have allowed them to have in the government form the most powerful barrier today against the lapses of democracy. This effect seemsTTT to have a general cause that is useful to inquire about, for it can be reproduced elsewhere.1 The abundant authority and deference, apparent to De Tocqueville, that American society affords lawyers has given them the opportunity to play a crucial role in the formation of American government. As Uncle Ben would warn Peter Parker, however, with great power comes great responsibility.2 Lawyers have indeed responded to this responsibility by molding Americas government and laws from their infancy. In fact, [t]he Principal author of the Declaration of Independence, Thomas Jefferson, was a lawyer. The principal force behind a unified colonial response to British occupation of Boston, and hence the Revolutionary War, John Adams, was a lawyer.3 Countless other lawyers such as Alexander Hamilton, John Marshall, and William Paterson proved critical to the nations development.4 Thus, it should come as no surprise that [t]he footprints of the legal profession are evident in the basic documents of the Revolution and the basic documents establishing the United States.5 Lawyers today continue this tradition of public service with their strong presence in the executive branches of our government and the state and federal legislatures that shape our law. Lawyers not employed
1. ALEXIS DE TOQUEVILLE, DEMOCRACY IN AMERICA 251 (Harvey C Mansfield & Delba Winthrop, eds. & trans., 2000). 2. See Spider-Man for an excellent example of how ones power leads to a moral obligation to help those less powerful. 3. CARL F. GOODMAN, THE RULE OF LAW IN JAPAN 133 (2003). 4. Kenneth M. Rosen, Lessons on Lawyers, Democracy, and Professional Responsibility, 19 GEO. J. LEGAL ETHICS 155, 172173 (2006). 5. GOODMAN, THE RULE OF LAW IN JAPAN 133 (2003).

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in the field of public service guide individuals and business entities through the United States complex legal system. The controlling part law and the legal profession plays in our society has spawned a great deal of public interest in the role of the lawyer.6 The three-fold loyalty of the lawyer to his client, to the court or administrative agency before which he practices, and to society at large, presents important problems of intrinsic interest to everyone.7 The intense scrutiny that lawyers face as a result of these significant duties has led to the criticism and distrust of lawyers throughout history.8 The legal profession has gone to great lengths to regulate itself, in part, to make sure the things that cause this distrust do not happen. The ABA has aptly described the role of the lawyer in the United States as follows: A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.9 As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the clients legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the clients position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a clients legal affairs and reporting about them to the client or to others.10 In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.11 As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a
Rosen, at 167. Id. Id. MODEL RULES PREAMBLE (2004). 6. 7. 8. 9. 10. MODEL RULES PREAMBLE (2004).
OF OF

PROFL CONDUCT PROFL CONDUCT

PROFL CONDUCT

11. MODEL RULES PREAMBLE (2004).

OF

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member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the publics understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.12 Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.13 These standards reflect not only the necessity of zealous representation for clients in the United States adversarial common law system but also the necessity of a lawyers integrity for society. Absent either of these elements, the United States legal system would not function nearly as efficiently as it currently does. 2. Japan

At the time of the Restoration, no legal profession existed in Japan.14 Accordingly, lawyers neither led the revolution nor drafted Japans original Constitution or Codes as occurred in the United States.15 Instead, Japanese law formed based on statutes of Western origin but has grown to often reach outcomes distinct from other legal systems.16 The Japanese legal profession developed in a similar manner to the English legal profession.17 Innkeepers would often advise customers engaged in disputes with government tax offices. Although
12. MODEL RULES OF PROFL CONDUCT PREAMBLE (2004). 13. MODEL RULES OF PROFL CONDUCT PREAMBLE (2004). 14. GOODMAN, THE RULE OF LAW IN JAPAN 135 (2003). 15. Id.

16. KENNETH L. PORT & GERALD PAUL MCALINN, COMPARATIVE LAW: LAW AND THE LEGAL PROCESS IN JAPAN 13 (2003). 17. GOODMAN, at 135.

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these innkeepers could not actually represent the customers before the tax office, they would assist by drafting documents and constructing arguments.18 Later, the Lawyers Law of 1893 created the modern lawyer also known as bengoshi.19 The training of Japanese lawyers differed dramatically from that of American lawyers until recently.20 In 2004, Japan changed its law school system to more closely match the United States law school system.21 The new law schools operate at the graduate level and employ a more Americanized methodology based on the Socratic method.22 Currently there are over sixty such schools in operation in Japan.23 Prior to the implementation of this new law school system, law schools operated at the undergraduate level and followed the typical Japanese pedagogy, lecture.24 Even after this revolution in legal education, much remains the same as in the prior system and much remains to develop. Most Japanese lawyers practice as individuals outside of a law firm.25 Even when these lawyers enter into partnerships, they tend to operate more as individuals with shared expenses than true partners.26 Law firms of more than one hundred lawyers are virtually nonexistent because Japanese law forbids branch offices.27 It is almost impossible for a foreigner to become a member of the Japanese bar because the bengoshi exam is notoriously difficult and administered only in Japanese.28 Most Japanese lawyers practice in Tokyo or Osaka which leads to shortages of legal services in rural areas.29 Also, most Japanese lawyers do not specialize but rather become general practitioners. In November 2004, Japanese attorneys established new ethical standards which also apply to registered foreign business attorneys.30 These standards also apply to registered foreign business attorneys. These ethical rules characterize an attorneys role and duties as follows: 1. An attorney shall be aware that his or her mission is to protect fundamental human rights, to realize social justice, and strive to attain this mission.
25. 26. 27. 28.
IN

18. Id. 19. Id. at 136. 20. Id. 21. http://www.nyulawglobal.org/ globalex/Japan.htm. 22. GOODMAN, THE RULE OF LAW JAPAN 136 (2003). 23. http://www.nyulawglobal.org/ globalex/Japan.htm 24. GOODMAN, THE RULE OF LAW JAPAN 136 (2003).

Id. 137. Id. Id. Id. Id.

29.

IN

30. Kyoko Ishida, Ethical Standards of Japanese Lawyers: Translation of the Ethics Codes for Six Categories of Legal Service Providers, 14 PAC. RIM L. & POLY J. 383, 383 (2005).

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2. 3.

An attorney shall respect freedom and independence in his or her duties. An attorney shall be aware of the importance of attorney autonomy and strive to maintain and develop a self-governing system. An attorney shall protect the independence of the judiciary and strive to contribute to the sound development of the justice system. An attorney shall respect truth, be faithful, and perform his or her duties fairly and in good faith. An attorney shall value honor, maintain credibility, unsullied integrity, and strive to ennoble himself or herself at all times. An attorney shall develop his or her culture and strive to study in order to be deeply versed in statutes and legal business. An attorney shall strive to participate in and practice public interest activities that are appropriate to his mission.

4.

5. 6.

7.

8.

While these rules lay out the basic ethics for the attorneys (bengoshi), there are several other types of legal service providers: judicial scrivners, administrative scrivners, patent attorneys, tax attorneys, and social insurance and labor consultants. The roles of these legal professionals differ in that they offer more specialized services, but they largely follow the same ethical code. Although the Japanese government plans to increase the number of attorneys to 50,000 by 2018, currently legal service providers must provide a significant amount of services to individuals and corporations because there are only about 20,000 attorneys in Japanone attorney per 6,000 peoplecompared to about 941,000 attorneys in the United Statesone attorney per 290 people.31 Whether Japan can accomplish this feat remains to be seen. 3. European Union

The Council of the Bars and Law Societies of Europe (CCBE) Preamble addresses the role of lawyer in a quite general way as follows: In a society founded on respect for the rule of law the lawyer fulfills a special role. His duties do not begin and end with the faithful performance of what he is instructed
31. Kyoko Ishida, Ethical Standards of Japanese Lawyers: Translation of the Ethics Codes for Six Categories of Legal Service Providers, 14 PAC. RIM L. & POLY J. 383, 383 (2005).

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to do so far as the law permits. A lawyer must serve the interests of justice as well as those whose rights and liberties he is trusted to assert and defend and it is his duty not only to plead his clients cause but to be his adviser.32 A lawyers function therefore lays on him a variety of legal and moral obligations toward: the client; the courts and other authorities before whom the lawyer pleads the clients cause or acts on his behalf; the legal profession in general and each fellow member of it in particular; the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the power of the state and other interests in society. It remains to be seen what role lawyers will take on through transnational practice in the EU. However, the statements in this preamble generally reflect the ABAs sentiment that lawyers have a duty not only to represent their client but also a duty to further society. One development that is shaping the legal profession in the EU is the tendency of the EU courts (as opposed to the domestic, state courts) to develop a common law. The use of precedent in these courts is changing the ways in which lawyers interact with them and in some respects European lawyers who are practicing in the EU courts are developing the skills of common law lawyers, arguing from precedent based on rule and prior authoritys rationale, and sensing the increased lawyer role in shaping the law. 4. Russia

The Russian legal profession comprises procurators, advocates, notaries and judges. In addition, there are non-advocate private practitioners who work for companies, just as there are government employed lawyers, other than procurators, who advise governmental agencies. While all these diverse categories of lawyers are [often discussed together,] they are really several separate professions. This is in accord with the tradition in most civil law countries and unlike lawyers in the United States, all of who are members of the same bar. 33 Peter the Great created the procuracy in 1722 to act as the Eye of the Czar.34 Now, the procuracy is a unified and central32. CODE OF CONDUCT FOR LAWYERS IN EUROPEAN UNION [HEREINAFTER CCBE CODE], PREAMBLE (2002). 33. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 131 (2004).
THE

34.

Id. at 136.

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ized system of federal bodies charged with supervision over the observance of laws on the entire territory of the country.35 The Procurator General is appointed by the Federation Council on nomination by the President for a term of five years.36 The Procurator General then appoints lower level procurators.37 The procuracy undertakes three major activities: supervision of state organizations, criminal prosecution, and representation of the state in civil proceedings.38 An advocate is the principal lawyer in the Russian system who is permitted to represent clients in court or out of court for a fee. As might be expected, the types of economic and legal changes that have taken place in Russia since 1991 have increased the need for qualified advocates. The advokatura almost doubled its size from 28,000 in 1988 to 48,000 in 2002.39 Advocates have certain responsibilities and privileges. Privileges include the right to use the title advocate and some tax advantages. Responsibilities include complying with ethical rules, taking certain types of cases for free or for a reduced fee, and refraining from all other gainful activity except teaching, scholarly research and writing and creative work (writing, producing movies, etc.). This limitation on work is rather striking. It would appear to prevent advocates from becoming managers of businesseswork that lawyers regularly perform in other countries.40 In all civil law countries, notaries represent a separate branch of the legal profession. While in the U.S. a notary usually has limited powers, such as administration of oaths to persons who sign sworn documents or verification of signatures on such documents, Russian and other civil law notaries perform many functions which in the US would be done by lawyers. This institution is called the notariat in Russian.41 Certification of legal transactions which require stricter formal requirements in order to be valid is one of the notariats most important functions.42 However, notaries also certify wills and the accuracy of copies and translations.43 In doing so, the notaries often provide legal advice and assistance.44
35. Id. The 1995 law On the Procuracy of the Russian Federation established this. 36. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 138 (2004). 37. 38. 39. 40. Id. Id. at 140141. Id. at 142. Id. at 144. 41. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 160 (2004). 42. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 160161 (2004). 43. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 160161 (2004). 44. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 160161 (2004).

10

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The legal status of all Russian judges is established by the 1993 Constitution and the 1992 Law On the Status of Judges. Laws governing different court structures may contain additional normative prescriptions concerning the status of judges. For example, the 1994 Federal Constitutional Law On the Constitutional Court determines the legal status and the process of appointment of judges of the Constitutional Court.45 During the Soviet era, the judiciary was considered an arm of the prevailing ideology and a system that allowed dismissals assured the political allegiance of the judges.46 Today, judges are appointed to serve for life or a specified tenure in order to enhance their independence.47 Discussion Questions:
11: Lawyer knows that his client, Sandja, has committed the crime with which she is charged. He advises her of all her options but because the evidence against her is weak, he tells her that he thinks she should plead not guilty. Has Lawyer acted immorally? Lawyers client, Dr. Nikoli, admits to Lawyer that he made c a mistake during surgery on one of his patients. His patient is unaware of the mistake and has not yet suffered any harmful side effects from the mistake. In fact, the odds are good that whatever problems the patient does develop will not be traceable to Dr. Nikolis mistake. Dr. Nikoli wants c c Lawyers advice on how to handle this situation. If Lawyer is a morally activist lawyer, what would she counsel Dr. Nikoli to do? c Draft a Preamble for a code of lawyer ethics that expresses your sense of the proper role of a lawyer and the legal profession.

12:

13:

45. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 162 (2004). 46. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 163 (2004).

47. BURNHAM, MAGGS & DANILENKO, LAW AND LEGAL SYSTEM OF THE RUSSIAN FEDERATION 162 (2004).