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Legal writing should be concerned with professionalism and legal ethics. Instilling ethics
in future lawyers is one of a law school’s most important responsibilies. Law schools cannot
turn out lawyers who do not understand their obligations to their clients and to society. As I tell
my students, legal ethics is the one area of law they will practice every day. While legal ethics is
a class at all American law schools, professionalism and legal ethics should be taught throughout
the curriculum, especially during the first-year. This is particularly true in legal writing and
appellate advocacy, which are the only first-year courses that resemble what law is like in
practice.
We can teach ethics in legal writing without taking attention away from our basic mission
of teaching legal skills by integrating ethics into everything we do and by serving as examples
for our students. Part II of this paper will discuss teaching legal ethics on orientation. Part III
will examine legal ethics in structuring the course and setting an example. Parts IV, V, and VI
will cover legal ethics in legal research, objective legal writing, and persuasive legal writing
respectively. 1
Part II
Teaching Ethics on Orientation
Most law schools have legal writing instructors teach a session on legal methods during
orientation for first-year students. Legal writing teachers should use orientation to introduce
students to their ethical responsibilities. Throughout orientation, I try to show students that the
practice of law is not like the skewed image of lawyers that they see on television, particularly
the image that lawyers should do anything to help their clients win. Then, at the end of
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orientation, I devote approximately a half hour specifically to legal ethics.
I cover three main topics during this session: the role of the lawyer, the duties of a lawyer
to both the client and society, and how easy it is for an attorney to get into trouble. Concerning
the first topic, I stress that a lawyer’s role is not necessarily to win, but to achieve the best result
for a client. My first example supporting this involves a client who has been sued for $10,000.
After conducting legal research, the lawyer concludes that the client cannot win at trial, and the
plaintiff will recover the requested damages. I tell the students that rather than litigating the
case, the lawyer should try to settle the case. If the lawyer can settle the case for $5,000, the
lawyer has done a good job for the client because the attorney has saved the client $5,000. I then
ask the students what the lawyer should do if the other side will not settle for less than $10,000.
One student always comes up with the correct answer: The client should send the plaintiff a
check for $10,000 because ligation will involve significant attorney’s fees that the client will
At this point, I always notice a troubled look on a few students’ faces because they
realize that the attorney has lost his or her fee. My response to this is both ethical and practical.
A lawyer has an ethical responsibility to the client not to undertake litigation just to increase
attorney’s fees. 2 In addition, there is a practical side. An attorney that unnecessarily runs up the
bill for the client will quickly acquire a bad reputation and lose clients. It is better to forgo a
small, improper attorney’s fee today in order to fairly earn a large one in the future.
My second example concerning the lawyer’s role involves a medical malpractice case
that one of my partners litigated in which a doctor had been sued for $2,400,000. The doctor had
performed experimental procedures on patients that no other doctor in the community was
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performing, and there was no question that the doctor would be found liable. As predicted, the
jury returned a verdict against the client for $200,000. I asked the class whether my partner had
done a good or bad job for the client. Those that could see beyond the fact that the client had
“lost” the case realized that my partner had done a very good job for the client; the attorney had
The second topic I discuss on orientation is a lawyer’s duty to both the client and the
court. While a lawyer must zealously represent the client, he or she also has responsibilities to
the opposing side, the court, and the public at large. For example, a lawyer’s duty to represent
the client does not include hiding the murder weapon because this breaches the lawyer’s
responsibility to the court and to the public. 3 Similarly, a lawyer cannot withhold harmful but
discoverable documents from a discovery response because the lawyer owes a responsibility to
the other side. 4 Both examples illustrate that one of the goals of our legal system is to get at the
truth and allow all parties and the court access to the facts.
The final legal ethics topic I discuss on orientation is how easy it is for a young attorney
to get into trouble. As an illustration, I discuss Kentucky Bar Ass’n v. Watson. 5 Rhonda
McClure Watson had been charged with two counts of violations under SCR 3.130, et seq.
Count One charged her with violating SCR 3.130-8.3 (c) on evidence that between January and
May of 1993 Watson "spent, borrowed without authorization, used, mishandled, misappropriated
or otherwise stole $ 2,000.00 from her client...." Count Two charged her with violation of SCR
3.130-1.15(a) for "failure to keep the settlement money belonging to [her client] separate from
[Watson's] money." Watson had represented a client in a civil case, which ultimately was settled.
The client's share of the settlement was $2,000.00. The client had come to Watson’s office, at
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her request, to sign the release documents, but he was not given the settlement check. Instead,
Watson told her client that she would mail the check "within the next several days." Several
weeks went by without the client receiving the settlement proceeds, so he started calling
Watson's office requesting his money. Watson finally told him that his check was ready, and that
he could obtain it by stopping by her office. He received the $2,000 settlement check from
Watson's secretary. However, when he tried to cash it, the bank returned it for insufficient funds.
The client attempted to cash the check on several other occasions, and each time it was returned
for insufficient funds. The last time, the bank wrote on the check "DO NOT PRESENT
AGAIN." Based on the above, the Kentucky Supreme Court disbarred Ms. Watson.
We first discuss how Ms. Watson got into trouble. My guess is that she hadn’t intended
to steal the client’s money, but rather had a “cash-flow” problem. She had used the money to
pay her bills, and she had intended to pay it back but couldn’t. Most of the class thinks that
We also discuss the two rules that Watson violated to show the difference between moral
and ethical rules. There are some rules of professional responsibility that exist because the
action is immoral, while other rules prevent conduct even though it is not immoral. One of the
rules, in layman’s terms, forbids a lawyer from stealing the client’s money. 6 It is obvious to all
students that it is immoral to steal a client’s money. However, the other rule, that a lawyer must
keep a client’s funds separate from the lawyer’s funds, is not a moral rule. 7 Rather, it exists to
help prevent the very situation that Ms. Watson found herself in–to help avoid temptation. Thus,
lawyers must follow many rules for the good of the legal profession or for the good of society.
Up to this point, I treat Watson as a normal case. At this time, I reveal the real reason I
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am discussing this case: Rhonda Watson sat behind me in my legal ethics class in law school!
Even your law school classmates can get in trouble with the state bar. I then tell the students
about the last time I saw Rhonda. About two years before her disbarment, I saw Rhonda at a
local mall with her two young children. I talked to her for a few minutes, while her children ate
ice cream. When I read about her disbarment, I thought about those two children.
Part III
Legal Ethics, the Structure of the Legal Writing Course, and Setting an Example
The structure of the legal writing course can help introduce students to professionalism.
A well-structured course and a clear syllabus can help teach students that they need similar
structure and clarity in their professional lives. In addition, the legal writing teacher can serve as
assignments as much as possible like real world assignments, so that the transition from
classroom to law office is as smooth as possible. I take many of the my assignments from
problems that I had in practice, and I draw on pending cases for other assignments.
I set requirements for my students that resemble the requirements that they will face in
practice. In a law office, an attorney has to file court documents on time and has a duty of
diligence to the client. 8 Consequently, I set deadlines for all assignments, and I stress the
importance of following those deadlines by giving penalties to late papers except under
exceptional circumstances. I emphasize to the students the importance of starting a project early
so that unexpected occurrences will not cause them to miss the deadline. Of course, I also give
extensions in the exceptional circumstance that merits it, as a court would allow an extension in
such a case. I also state that such extensions must be requested in advance unless it is impossible
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to do so.
I also require students to follow format requirements for each assignment including
maximum page length, specific type size and style, and one inch margins. I take off points when
a student does not follow these requirements, such as taking off three points for every page that
an assignment exceeds the set page limit. I do this to develop habits in the students like they will
need in practice. For example, I have had several students that have had problems writing within
the page limit. Once they discover that failure to meet the page requirement will affect their
grade, they usually conform to the page limit on the next assignment.
I have a strict non-collaboration policy for students, and I emphasize the importance of
conforming to the school’s honor code. Having such policies and requiring students to follow
them prepares students to follow ethical rules once they are in practice. I tell the students that
ignorance of my rules or the school’s honor code is not an excuse and that they can break rules
even if they do not have the intent to do so. For example, I have a rule in my collaboration
policy that students cannot consult with other professors concerning their assignments.
Forgetting this rule, one student discussed her problem with one of her professors. The student
was overheard by another student who reported the incident to me. I talked to the professor, and
the professor told me that he did not give the student any information because he knew what my
project was. When I talked to the student, the student told me that she was not trying to get an
advantage on the assignment and that she wasn’t aware that taking to another professor violated
my collaboration policy. She was scared to death how this violation would affect her legal
career. I told her that ignorance of my rules was no excuse, but that since the professor did not
give her any information I considered her conduct a minor offense. As a penalty, I had her write
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a short paper on how a lawyer could violate an ethical rule without have an intent to do so.
I also develop rules of courtesy, as certain local bar associations have done. 9 It is never
too early for the students to learn that being in an adversarial system does not mean that a lawyer
should not practice civility. For example, I create library rules that ask the students to reshelve
books and limit the number of books that they can use at one time, so that materials are available
to all students.
Finally, the legal writing teacher can serve as a role model for students by acting in a
professional manner. A legal writing teacher is both the senior partner and judge for the
students. For example, when dealing with requests for extensions, the instructor should be firm
but fair. The teacher should grant the extension when the student is seriously ill or when there
has been a death in the family but not allow a student an extension when she wants to attend a
friend’s wedding. Since weddings are planned months in advance, the student could have started
the assignment early. Similarly, students often complain about grades. I do not change a grade
unless I have made a computational error. However, when a student comes to me to complain
about a grade, I try to explain to that student the reason he or she received the grade. Finally, the
legal writing teacher should avoid making jokes that belittle the legal profession or give the
wrong impression concerning a lawyer’s role. For instance, I can remember one professor in law
school who jokingly stated that a lawyer’s most important job was to find the deep pocket.
Part IV
Legal Ethics and Legal Research
Undertaking thorough legal research is one of a lawyer’s ethical duties to the client. The
first rule of legal ethics is that “A Lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation
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reasonably necessary for the representation.” 10 Obviously, thorough legal research falls under
this rule; one cannot competently advise a client unless he or she knows the law that applies to
Students often have misconceptions concerning legal research. I was once asked by a
student why legal research was so important when paralegals perform most of the legal research.
I first informed him that paralegals do very little legal research–that most legal research is done
by young lawyers–in other words, him in about two years. I also told him about the importance
of not relying on others to do the important work. First, if the researcher misses a binding case
that favors his side, malpractice might result. Lawyers are sued for malpractice, not paralegals.
Second, the key to winning a case is often finding the best law. Legal research is not
mechanical. Finding the best law requires considerable legal training that paralegals often lack.
Consequently, we need to instill in our students the need to develop their legal research
skills and to be thorough when they do legal research. It may be tedious to look through all the
periodical indexes or to fully shepardize cases, but such diligence wins cases. The diligent
lawyer can beat the smart but lazy lawyer most of the time.
While this paper cannot discuss all the research skills an attorney needs to be a competent
lawyer, I must emphasize one skill: making sure that the research is up-to-date. Too often
lawyers do not look in the pocket part or do not shepardize. When I was in practice, we hired a
law firm to represent our client in an out-of-state probate proceeding. The lawyer who did the
research missed the latest case on an important issue. We thought that, if the lawyer had cited
the case to the court, we would have won the case. Instead, we had to spend several years in
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In teaching legal research, I try to imitate practice as much as possible, again, to develop
a sense in the student of how the legal profession works. In addition, if you can show the
students how legal research fits into the problem solving process, the students are less likely to
view legal research as mechanical. For example, the first thing I do is set legal research within a
particular setting. A client comes into your office with a problem. He owns an ice cream
factory, and he has a contract with a diary to deliver milk to his factory every Monday at 6 a.m.
A couple of weeks ago, the diary did not deliver the milk until Wednesday, causing the ice cream
factory to shut down for two days. He wants to know whether he can recover his lost profits.
The first thing a lawyer does is to collect the facts. She does this by talking to the client,
investigating, and taking discovery. The next step in the process is to frame the issues. Framing
the issues before doing most of the legal research helps focus the researcher. In this case, the
issue would be “whether delivering milk to an ice cream factory two days later than provided for
in the contract, shutting down the factory for two days, is a material breach of contract.” The
next step in the process is to find the legal materials–the statutes, cases, administrative
regulations, and secondary sources–that you will use to evaluate your clients problem. After you
have found those materials, you need to analyze them. For example, if only case law is involved,
you will first need to analyze (brief) each case. After you have analyzed each case, you will
need to synthesize the law from those cases–develop a rule that is consist with all the relevant
cases. The next step is to apply the law to your facts and come to a conclusion. After you have
reached a conclusion, you need to write the conclusion in an objective memorandum. In sum,
legal research fits within the following model: 1) gather facts, 2) frame the issues, 3) undertake
the research, 4) analyze and synthesize the law, 5) come to a conclusion, and 6) write it up.
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Part V
Legal Ethics and Objective Legal Writing
A legal writing teacher can use objective legal writing to teach a basic legal ethics
requirement–competency. 11 One of the most important skills needed for competency is effective
written communication. Yet, many lawyers communicate poorly in writing, thinking that they
can win the case based on oral argument. However, it has been my observation from five years
in practice that the best written brief usually wins and that good oral skills cannot compensate for
In general, I try to instill attitudes and habits in my students. For example, one of the
attitudes I try to develop in my students is that they need to communicate to their readers by
educating their readers. One of the habits I try to impress upon my students is that they need to
read their writing as if they were the reader looking at the document for the first time. Similarly,
I tell my students that they need to edit everything they write carefully–that editing is as
important as writing.
The first step in effective communication in legal writing is clear thinking. The lawyer
must fully understand the analysis before starting to write. Therefore, I stress to my students that
the pre-writing stage is as important as the writing or editing stages. I tell them that it is
important to start early so that they can think about the problem and so that they can put the
complex, and the writer needs to present it to the reader in as well-organized manner as possible.
A writer needs to organize on the large-, medium-, and small-scale levels. The most effective
way to organize on the large- and medium-scale levels is to organize by the law. The lawyer
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should first organize by issues and, then, within issues, organize by the legal rule and keep
breaking down the legal rule as much as possible. On the small-scale level, writers especially
beginning writers, should organize by one of the small-scale paradigms, such as conclusion-rule-
show the students that it is organic, rather than an empty mold, by demonstrating how the
manner that gives the readers everything they need to understand the problem and be convinced
by the analysis. In many legal documents I saw in practice, the writer had just given the barest
outline of the law and the application of the law to the facts. In addition, it seemed that the
writer was just copying the law from the case and then trying to fill-in the blanks for the
application, without understanding the analysis. Therefore, I tell my students that they need to
educate their readers in both the facts and the law of the case in detail. They need to make the
The final step in effective written communication is editing; no one writes a perfect first
draft. One time when I was teaching legal writing, an appellate judge visited our classes. He
told our students that he revises his opinions twenty times. A couple of years later, I was having
dinner with an Alabama Supreme Court justice, and I told him the story, and he declared that he
edited his opinions thirty times! In any event, students should develop the habit of carefully
Part VI
Legal Ethics and Persuasive Writing
Legal ethics should be an integral part of teaching persuasive writing since persuasive
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writing involves the drafting of documents that are filed with courts. I continue to stress the need
for competency. In practice, a lawyer is not the only person presenting an argument to the court;
there is another lawyer presenting the other side of the case. In other words, a lawyer’s arguments
don’t just have to be good, they have to be better than the other attorney’s.
Persuasive writing is also a place where we can teach a lawyer’s duties to the court and to
the opposing side. 13 A lawyer has a duty not just to the client, but also to the public. For
example, as I mentioned above, a lawyer cannot hide evidence of a crime and cannot destroy
I stress a lawyer’s duty of honesty to the court and to the opposing side when writing to
the court. 15 Both the facts and the law must be accurate. In presenting the facts to the court, the
lawyer should tell the client’s story, but the lawyer cannot distort the facts or make-up facts.
Similarly, a lawyer can reasonably interpret the law, but the presentation of the law must be
accurate.
There is also a rule in most jurisdictions that a lawyer must present binding, adverse
authority to the court, even if it hurts the lawyer’s case. 16 This rule exists so that the court can
have an accurate picture of the law, not a distorted picture caused by one side’s poor research
skills. This is also a practical rule: If the court discovers unfavorable authority that an attorney
As I mentioned above, an appellate justice once spoke to our legal writing classes. He
told us how one justice is responsible for presenting each case at the judicial conference. He
stated that when he is suspicious that an attorney is deceiving the court that he says so at the
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I observed the same thing in practice. Time after time, attorneys thought they were getting
away with something because the judge didn’t say anything. However, you could tell from the
judge’s expression and body language that he knew what was going on. In one trial concerning a
breach of warranty, the plaintiff needed to establish that it had bought the product only from our
client or else it could not prove causation. The plaintiff put its office manager on the stand. He
testified that the plaintiff had bought the product only from our client. However, the whole time
he was testifying, he was sweating and his hands were shaking. No wonder our client won the
case.
I also tell the students that they cannot file a claim or raise a defense unless it is
meritorious. 17 All claims and defenses must have a basis in law and fact, although a lawyer can
include a good faith argument for an extension, modification, or reversal of existing law. 18 In
addition, an attorney cannot use means that are only intended to embarrass, delay, or burden a
third party. 19
I also discuss a lawyer’s duties to the client during persuasive writing. A lawyer should
not file an action or make an appeal unless it is in the client’s best interests. Litigation is costly;
sometimes it is better to settle. For example, it is probably not worth it to the client to spend
$50,000 in attorney’s fees and costs to appeal a $10,000 judgment, unless there is some fear of
repetition or a constitutional right is at stake. I also stress to the students that it is the client’s
case–that the lawyer must frequently consult with the client, 20 and it is up to the client to decide
the objectives of the representation. 21 Of course, keeping the client informed is the best way to
avoid malpractice suits when the client receives an unfavorable result. I also briefly discuss a
13
The controversial nature of many moot court problems helps illustrate how attorneys can
represent clients when they don’t completely agree with their position. In the past, I have had
problems on first amendment issues concerning anti-war protests, affirmative action, reciting the
pledge of allegiance in public class rooms, and whether Christian Scientists can refuse blood
transfusions for their children. Since I assign sides randomly, students are often arguing
positions they disagree with. I first tell them that under the ethical rules representing a client does
not mean that the attorney agrees with the client’s views. 22 Moreover, giving all viewpoints
representation is fundamental to our legal system; even unpopular causes need advocates. In
addition, even if the attorney initially thought that he or she disagreed with the client’s position,
once the attorney gets into the case, the attorney usually discovers the merits of the client’s cause.
Of course, an attorney cannot represent a client when the client’s cause is so distasteful that the
I once had a first amendment problem concerning the arrest of a protestor by a policeman
for disturbing the peace while she was protesting the war in Kuwait. One of my night students,
who was a policeman, was assigned to present the protestor’s case. He came to me and
complained that he couldn’t represent the protestor. Nevertheless, I would not allow him to
switch sides. By the time of oral argument, he had discovered the merits of his client’s case, and
Conclusion
As the above demonstrates, a legal writing teacher can integrate legal ethics into the legal
writing curriculum without losing significant time from teaching legal writing. Most of what we
teach involves legal ethics, and we need to show our students those ethical issues.
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Ultimately, what we need to teach the students is that law is not just a way to earn money,
but also involves a duty to society. A lawyer should not just consider his or her interests or even
the client’s interests but also those of the court, the opposing party, and society as a whole. We
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1. I shall use the ABA Model Rules of Professional Conduct to help illustrate my points.
2. MODEL RULES OF PROF’L CONDUCT R 1.5 (a) (2002) (“A lawyer shall not make an agreement
for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”).
3. MODEL RULES OF PROF’L CONDUCT R. 3.4 (a) (2002) (“A lawyer shall not: (a) unlawfully
obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or
other material having potential evidentiary value.”).
4. Id.
5. 875 S.W.2d 96 (1994).
6. KY. SUP. CT. R. 3.130-8.3 (c) (2008) (“It is professional misconduct for a lawyer to . . . (c)
Engage in conduct involving dishonesty, fraud, deceit or misrepresentation...”).
7. KY. SUP. CT. R. 3.130-1.15 (2008) (“(a) A lawyer shall hold property of clients or third
persons that is in a lawyer's possession in connection with a representation separate from a
lawyer's own property. Funds shall be kept in a separate account maintained in the state where the
lawyer's office is situated, or elsewhere with the consent of the client or third person.”).
8. MODEL RULES OF PROF’L CONDUCT R. 1.3 (2002) (“A lawyer shall act with reasonable
diligence and promptness in representing a client.”).
9. E.g., ABA LAWYER’S CREED OF PROFESSIONALISM (1988).
10. MODEL RULES OF PROF’L CONDUCT R. 1.1 (2002).
11. Id.
12. Of course, a writer cannot organize well unless he or she fully understands the problem.
13. MODEL RULES OF PROF’L CONDUCT R. 3.1-3.5 (2002).
14. MODEL RULES OF PROF’L CONDUCT R. 3.4 (a) (2002).
15. MODEL RULES OF PROF’L CONDUCT R. 3.3 (a)(1) (2002) (“A lawyer shall not knowingly: (1)
make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer.”).
16. MODEL RULES OF PROF’L CONDUCT R. 3.3 (a)(2) (2002) (“A lawyer shall not knowingly . . .
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel.”).
17. MODEL RULES OF PROF’L CONDUCT R. 3.1 (2002) (“A lawyer shall not bring or defend a
proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith argument for an extension, modification
or reversal of existing law.”).
18. Id.
19. MODEL RULES OF PROF’L CONDUCT R. 4.4 (a) (2002) (“In representing a client, a lawyer shall
not use means that have no substantial purpose other than to embarrass, delay, or burden a third
person, or use methods of obtaining evidence that violate the legal rights of such a person.”).
20. MODEL RULES OF PROF’L CONDUCT R. 1.4 (a) (2002) (“A lawyer shall . . . (3) keep the client
reasonably informed about the status of the matter.”).
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21. MODEL RULES OF PROF’L CONDUCT R. 1.2 (a) (2002) (“Subject to paragraphs (c) and (d), a
lawyer shall abide by a client’s decisions concerning the objectives of representation. . .”).
22. MODEL RULES OF PROF’L CONDUCT R. 1.2 (b) (2002) (“A lawyer’s representation of a client,
including representation by appointment, does not constitute an endorsement of the client’s
political, economic, social or moral views or activities.”).
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