Where Do You Draw the Line? Ethics and…

                 Where Do You Draw the Line?
           Ethics and Professionalism Hypotheticals
In preparation for the ethics and professionalism discussion and luncheon on Monday,
August 18, please read the attached hypotheticals, give some thought to what issues
arise in each situation, and consider the decisions you would make in each scenario.
Be prepared to share your thoughts with your orientation group; discussions will be
facilitated by alumni, LEAD Fellows, and faculty members. You should familiarize
yourself with all of the hypotheticals, as we cannot predict which three or four the group
leaders will choose to discuss during the break-out sessions.

These hypothetical situations are intended to expose you to professional challenges of
the type you may encounter during or after law school in the day-to-day practice of law.
We intend for these scenarios to stimulate thoughtful discussions about what it means
to be a professional and about the ethical standards that should apply to the study and
practice of law. This exercise also introduces the idea that the actual practice of law
takes place within a context of responsibility to your client, to your profession, and to
yourself. When acting as advocate, a lawyer represents the client's interests to others
in a vigorous and committed manner, while at the same time remaining conscious of
duties to other lawyers, the legal system, and the community in general.

To put these discussions in context, it is important for you to be aware of the common
understanding of the terms ethics and professionalism among lawyers and judges. As
you begin law school, the word ethics most likely connotes upright, moral behavior. To
most lawyers, however, the connotation also is to the American Bar Association's Model
Rules of Professional Conduct, various forms of which govern the practice of law in
every state. Thus, to lawyers, the word ethics means the rules or laws of lawyering that
govern the legal profession. Professionalism, on the other hand, refers to the attitudes
and conduct that rise above these minimum standards and embody the values of
competence, character, civility, and commitment to the rule of law, to the lawyer's role
as an officer of the court, and to public and community service. Professionalism is a
commitment to carrying out both the letter and spirit of the law.
All we ask you to bring to this exercise are your life experience and values. We are not
asking for any professional knowledge or research, nor should you ignore your "gut
reaction." We encourage you to write down your initial reactions and any subsequent
reflections and to bring those notes with you to the orientation event, so that you can
better share your thoughts within your orientation group.



We gratefully acknowledge the State Bar of Georgia's Committee on Professionalism for
developing and sharing these instructions and some of the fact patterns contained herein. One of
the foremost professionalism organizations in the country, the Georgia Committee has offered its
"Orientation on Professionalism" program throughout the state for the past 13 years. We are
indebted to the Georgia Bar for its assistance and applaud its members' far-reaching efforts in
advancing the cause of professionalism throughout Georgia and beyond.
PROBLEM 1

Sally and Jane are first-year law students and roommates who are in the same
Contracts small section. On the day their Contracts take-home exam was due, Sally
returned to their apartment after handing in her exam to find Jane in tears. Jane said
that she had not been able to study for days. She didn't even feel like getting out of bed
in the morning. Sally knew Jane had been going out a lot in the past few weeks and
coming home late and very drunk. Sally convinced Jane to spend the remaining few
hours on the exam. Jane's eventual grade in the class was barely passing.

In the spring semester of their third year of law school, Jane learns that her mother is
seriously ill. Jane begins ignoring phone calls from her friends and family. Sally hears
from other friends that Jane is not attending classes or study group appointments. Jane
begins to drink alcohol at home alone and is often drunk on weeknights. Sally decides
to approach Jane and tell her that she is concerned about her drinking and how Jane is
dealing with her mother's illness. Jane says that her drinking is no big deal and that she
was thinking about going to Counseling and Psychological Services (CAPS) on campus,
but someone told her that if she did she would never get admitted to the state bar.

Does Sally have an obligation to disclose her concerns about Jane's drinking to the law
school or anyone else? Would your answer change if Jane were abusing cocaine in
addition to alcohol?

What if Sally were one year ahead of Jane in law school and admitted to the NC bar,
and Jane asked her to complete a "character and fitness" reference form relating to
Jane's NC bar application?


SYNOPSIS: A law student is concerned about her fellow student's apparent
substance abuse.
PROBLEM 2

During your first-year Civil Procedure course, the professor repeatedly uses the same
two hypotheticals over and over to stimulate classroom discussion. Most classes focus
entirely on issues raised by these two hypotheticals, with the professor rarely giving
clues as to whether the class is on the right track. This is frustrating and terrifying to you
because the professor has hinted that these, or similar, problems will be on the exam.
With two weeks left in the semester, you receive an e-mail from a college friend who is
attending another law school. Your friend tells you that your Civil Procedure professor
previously taught at the friend's law school and that your friend has learned of a book
that contains a contribution by your professor analyzing his two favorite hypotheticals in
depth. A quick search reveals that your law library contains this book. You could check
it out and keep it for the rest of the semester, which could advantage you but would
preclude your classmates from gaining access to the information.

Would you check out the book? Would you share the information with your classmates?


SYNOPSIS: You are a first-year student with the opportunity to gain "inside"
information about a class and its final exam.
PROBLEM 3


PROBLEM 3

Michael Holt is a recent law school graduate from the state of East Carolina who last
year passed the East Carolina bar exam. Holt is also a fundamentalist Christian and
founder of the Global Church of the Creator ("GCC"), an organization that calls for "the
return of Jesus Christ to His rightful place at the head of this great nation" and for the
passage of laws deporting all non-Christians from the country. The GCC does not call
for violence against non-Christians and states in its promotional material that it and its
members intend to change the law by peaceful means. Six months before Holt sat for
the bar exam, another member of the GCC was convicted of planting pipe bombs in a
synagogue and a mosque in the state capital. Holt was not charged in those bombings
and denies any involvement.

An East Carolina state bar committee charged with evaluating the character and fitness
of all bar applicants denied Holt's application to the bar. The committee based its
decision in part on the conclusion that Holt was "actively involved in inciting religious
hatred and ... had dedicated his life to destroying equal rights under law." The
committee stated that Holt's views were "diametrically opposed to the letter and spirit" of
the state's Rules of Professional Conduct that govern attorney admission and practice.
Two members of the seven-person bar committee dissented, stating that an applicant
should not lose the right to practice law simply because of his "open advocacy of an
obnoxious belief."

Holt has exercised his right to appeal the state bar committee's decision to the East
Carolina Supreme Court. Should the court reverse the committee's decision?

SYNOPSIS: A bar applicant espouses religious discrimination and supports
efforts to change existing laws to accomplish goals that many members of the
bar and the public find repugnant.
PROBLEM 4

You represent a client in a civil matter in a county in which you and the client are the
same race as the majority of the judges, court personnel, and lawyers. The opposing
client and his attorney are of a different race. You have completed discovery and are
now ready for trial. In the hallway of the courthouse on the day of the trial, you stop for a
drink of water at the fountain outside the judge's chambers. As you turn around, the
judge, who is the same race as you and your client, approaches his private entry door
and pauses. He winks at you and says, "Don't worry; we're not gonna let these people
get anywhere with this." You understand clearly that he intends to do whatever he can
to favor your client because of your client's race.

What, if anything, do you do in response to the judge's comment?


SYNOPSIS: You have reason to believe that you are about to be the beneficiary of
a judge's racial prejudice in a civil case.
PROBLEM 5

You have agreed to draft a will and a complicated estate plan for a client. You quote
your client a flat fee of $1,500, rather than an hourly rate. In arriving at the fee, you took
into account several factors, but the primary consideration was that it would take you 10
hours to do the work. The client pays the fee in full and in advance. Just as you are
about to get started, you learn that another lawyer in your office recently prepared a will
and an estate plan for a client with circumstances that are similar to your client's. Your
work now will consist of only two hours of editing the other lawyer's work.

Must you refund a portion of the fee to the client? Should you?


SYNOPSIS: You have quoted your client a package price for the preparation of an
estate plan, based a fair estimate of the time needed for its completion. You then
discover that the matter will require much less time than you thought, because a
partner has done similar work for another client.
PROBLEM 6

You are a criminal defense attorney with a modest practice. In addition to your private
clients, you have contracted with the Superior Court in your county to accept
appointments as counsel for indigent criminal defendants for a flat annual fee. You
receive about five such appointments each month, and the annual fee usually works out
to about half your standard hourly rate. However, the consistent employment is helpful
to your financial stability. Any such cases in which you have or may have conflicts can
be returned to the law clerk for assignment to another of the contract attorneys, without
further inquiry by the court.

In today's mail you find a notice appointing you to represent one of two defendants in a
serious felony case that has been widely reported in the press. You realize that this
representation could provide positive public relations and notoriety. From what you
have read about the case and heard from your friends in the police department, you are
optimistic that you can obtain an acquittal for your client. You decide to visit the jail
tomorrow to interview your new client.

One hour later, a courier delivers to your office a package from the father of the co-
defendant in the same felony case. The package contains a letter asking you to
represent the co-defendant, a signed retainer agreement, which needs only your
signature to make it complete, and a check for $25,000 made out to your office.

At this point, you have not spoken to the co-defendants, the father, or the court
regarding your involvement in this case. The $25,000 fee would obviously be of great
help to your small practice. You assume the press coverage would be the same
regardless of which defendant you represent.

Have you any obligation, ethical or professional, to represent one client rather than the
other?


SYNOPSIS: You have the opportunity to represent a paying client in a criminal
case for which you have received notice of appointment as counsel for an
indigent defendant.