Legal Studies Research Paper Series

Research Paper No. 0820

Legal Writing, Professionalism, and Legal

Ethics
Professor Edwin Fruehwald

Working paper series

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection at:
http://ssrn.com/abstract=#0820
 Legal Writing, Professionalism, and Legal Ethics
by Scott Fruehwald

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

save by settling the case now.

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

limited damages to $200,000 when the plaintiff had sought $2,400,000.

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

Watson’s original intention is irrelevant.

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

a role model for students by setting a professional example.

I structure my course so that it resembles a professional environment. I try to make my

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

the client’s situation.

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

appellate court to get the matter resolved in our client’s favor.

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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

poor writing skills.

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

problem aside for a few days to get a new perspective.

The second step in effective written communication is organization. 12 Legal analysis is

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-

rule explanation-rule illustration-application. In teaching the paradigm, the instructor should

show the students that it is organic, rather than an empty mold, by demonstrating how the

paradigm works in several examples.

The third step in effective written communication is to do the analysis in a detailed

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

reader understand the problem as well as they do.

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

editing their writing, looking at substance, organization, wordiness, bluebooking, etc.

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

documents that are subject to a valid discovery request. 14

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

failed to disclose to the court, the attorney appears dishonest.

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

conference, which significantly hurts that attorney’s case.

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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

lawyer’s duty of confidentiality to the client and the attorney-client privilege.

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 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

attorney’s competency and diligence might be affected.

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

he presented an impassioned oral argument for his client.

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

should teach our students to serve society, not just themselves.

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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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