Jack Marshall

Resisting the Dark Side: Compliance vs. Ethics Under the Rules

[ 2-3 Hour Legal Ethics CLE Seminar]

In a recent article, Professor Monroe Friedman considers the situation, not unheard of in some courts, where a judge calls the two adversaries in a criminal trial to the bench and asks defense counsel, “All right, let’s cut through this. Did your client do it?” Noting that most authorities maintain that the ethical course for the attorney is to refuse to answer, Friedman asserts that even that fails the lawyer’s duty of confidentiality and zeal. He believes the lawyer must lie.

This is but an extreme example of the kinds of calculations attorneys must make on a regular basis, not only in litigation, and in all practice areas. To what extent are a jurisdiction’s Rules of Professional Conduct (and others) to be interpreted literally, and how much of its “spirit” is binding on attorneys when serving a client’s needs is in the balance? What are the provisions that have “wiggle room,” and is a lawyer justified—or even obligated—to exploit them? When is the “floor” for attorney conduct— the minimum—good enough, and when should an attorney aim for the heavens?

Using recent cases and legal ethics rulings from  around the nation, Resisting the Dark Side is a thought-provoking legal ethics seminar that fulfills 2 or 3 hours of CLE ethics credit. Interactive, challenging, and exploring the dangerous moments in legal practice that can become traps for the unwary or ethically insensitive, it reveals useful analytical approaches and employs them in lively hypotheticals, covering such topics as:

  • Handling client misstatements

  • Witness preparation

  • Conflicts that the Rules, and clients miss

  • Using ethics rules for tactical advantage

  • Opposing former clients

  • Violations that are never enforced

  • Self-preservation vs. the client’s welfare
  • Technology tricks and traps

  • Threats to a lawyer’s independent judgement

  • Conflicting obligations in corporate representations

And more.