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Ethical Lawyering: A Guide for the Well-Intentioned, Second Edition

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Authors
  • Bernard A. Burk
  • Veronica J. Finkelstein
  • Nancy B. Rapoport
Series / Aspen Coursebook Series
BOOKMARK
Book length
1030 pages
Publication Date
2025-02-03
Edition
Second Edition
Teaching Materials
NO
Description
Table of contents

Buy a new version of this textbook and receive access to the Connected eBook on Casebook Connect, including lifetime access to the online ebook with highlight, annotation, and search capabilities. Access also includes an outline tool and other helpful resources. Connected eBooks provide what you need most to be successful in your law school classes.

Professional Responsibility professors often struggle to engage students in this required course—one that many students wouldn’t otherwise have chosen to take—covering material that simultaneously appears both obvious and intricately technical. This coursebook responds to these challenges with a fresh look at teaching and learning PR. Instead of containing the impenetrable cases typical of PR casebooks, which force students and teachers to sort out convoluted facts and incomplete or out-of-date analysis, this book “flips the classroom” by providing detailed explanations of the Model Rules, accompanied by problems for class discussion that require students to explore how the Rules apply in real-world situations. This structure lends itself easily to use in both in-person and online courses. The book’s explanations are focused on building statutory interpretation skills, and then bringing these skills to common practice scenarios and exploring both the legal and the practical demands they present. Discussion covers all aspects of the law governing lawyers, from professional discipline to civil liability to court sanctions, as well as informal concerns, such as misconduct’s potential effects on both client relations and the business of law practice.

New to the Second Edition:
  • New or expanded discussion of recent doctrinal developments, including:
    • The advent of artificial intelligence and other new technology
    • Numerous authoritative interpretations of the Model Rules in recent ABA Formal Ethics Opinions and opinions from state and local bar associations
    • The potential implications of the amendments to Model Rule 1.16 regarding mandatory abstention or withdrawal from engagements in which a client may misuse the lawyer’s work product in unlawful conduct
  • Materials designed to make a course using the book compliant with the new features of ABA Standards 303(b) and (c), including new or expanded discussion of:
    • Professional identity formation
    • The stresses of law practice and lawyer well-being
    • Cross-cultural competence
    • Ethical issues involved in providing everyone with an equal opportunity to succeed in legal education, bar admission, and legal employment
Benefits for instructors and students:
  • A statutory construction approach to the Model Rules designed to build text-interpretation skills.
  • Features in the digital edition enabling students to call up with one click and review on-screen the text of a Model Rule, Comment, or other statute side-by-side with the textbook’s discussion of that text.
  • A detailed Glossary of recurring terms of art, with features in the digital edition allowing students to access the Glossary definition of a term with a single click on that term.
  • “Signposts” throughout alerting the student to categories of issues that commonly arise in legal ethics doctrine and practice, including Taming the Text, Rule Roles, Reason for the Rule, Consequences, Real World, Tips & Tactics, and Your House; Your Rules.
  • Realistic problems, drawn from the authors’ extensive practice experience, introducing students to the world of law practice and common real-world pitfalls while applying and reinforcing doctrinal concepts.
  • “Big-Picture Takeaways” at the end of each chapter reviewing and summarizing the material.
  • MPRE-style multiple-choice review questions at the end of each chapter designed to prepare students for the MPRE.
  • A comprehensive treatment of the law regulating lawyers, considering all of the practical hazards that lawyers face, and illustrating the connections between the Model Rules as a basis for professional discipline and the law of torts (fiduciary duty and malpractice), contracts (scope of the attorney-client relationship and engagement agreements), agency (authority), and procedure (sanctions), as well as informal concerns such as client relations and reputational issues.
  • An informal, irreverent, down-to-earth, and conversational style that is meant to be accessible and relatable to Millennial and GenZ students, and to draw them into appreciating the importance of the subject matter to their own career success by encouraging them to put themselves into the “hot seats” that the problems describe.
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Table of Contents
Summary of Contents

Contents
Acknowledgments 
About the Authors 

Introduction 
1 How to Use This Book 

UNIT I Working in a Regulated Profession 
2 What Lawyers Do, and Where They Do It 
3 Regulating Lawyer Conduct: Where Guidance
and Consequences Come From 
4 Why Smart People Do Stupid Things: Cognitive
Biases and the Stresses of Practice

UNIT II The Attorney-Client Relationship 
5 The Lawyer as Fiduciary
6 The Lawyer as Agent
7 The Duties of Competence, Diligence, and Care 
8 The Duty of Confidentiality
9 Creation, Assumption, Disclaimer, and
Termination of a Lawyer’s Duties 

UNIT III Duties to Third Parties and the Public 
10 Avoiding Misrepresentation 
11 Duties to People Who Have (or Must Be Treated
as If They Had) Their Own Lawyers 
12 Duties to Unrepresented Persons
13 Involvement in a Client’s Wrongdoing: Advising, Assisting,
Condoning, Aiding and Abetting, Conspiring
14 Unnecessarily Embarrassing, Delaying,
or Burdening Others 
15 Avoiding Invidious Discrimination 
16 Threatening to Report and Reporting Wrongdoing 
17 Offering or Agreeing to Restrict Your Future Practice 
18 Advertising and Solicitation 

UNIT IV Some Realities of Practice 
19 The Organizational Environment 
20 Fees and Fee-Sharing 
21 Safeguarding, Segregating, and Accounting
for Others’ Funds and Property 

Unit V Challenges and Complications
When Duties and Interests Collide 
22 Conflicts of Interest 
23 Representing Organizations and Their Constituents
24 Ethics in Advocacy
25 The Government Lawyer 

UNIT VI Judicial Ethics 
26 Judicial Ethics 
Glossary of Recurring Defined Terms

Table of Cases 
Index 
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About the authors
Bernard A. Burk

Bernard A. Burk graduated from Yale College in 1980, summa cum laude with distinction in English, and from Stanford Law School in 1983, Nathan Abbott Scholar and Order of the Coif. He was a Note Editor on the Stanford Law Review. Burk clerked for Hon. William W. Schwarzer in the United States District Court for the Northern District of California and then spent 25 years at Howard Rice Nemerovski Canady Falk & Rabkin, A Professional Corporation, in San Francisco, 20 of them as a shareholder and director. That firm is now part of Arnold & Porter LLP. He chaired his firm’s ethics function, represented other lawyers and law firms in ethics counseling and claims defense, and also represented a wide range of clients in commercial, intellectual property, and constitutional litigation and media and entertainment industry counseling and transactions. He was named a Best Lawyer in America in Commercial Litigation in 2009 and 2010. Since leaving private practice in 2011, Burk has taught at a number of law schools. His research focuses on legal ethics and professional conduct as well as empirical study of the legal profession and the legal academy. He has served as a consultant and expert witness in multiple engagements involving legal ethics and professional conduct and continues to provide pro bono assistance to legal aid programs on regulatory and ethics questions. He blogs regularly on The Faculty Lounge, www.thefacultylounge.org.

Unlike Prof. Rapoport, he cannot dance to save his life. He can, however, sing at least passably.

Veronica J. Finkelstein
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

Veronica J. Finkelstein is an Associate Professor of Law at the Wilmington University School of Law. Finkelstein spent a majority of her career as an Assistant United States Attorney before transitioning to a full-time teaching. While in government practice, Finkelstein handled various civil affirmative and defensive matters as well as criminal child exploitation cases. She tried numerous civil cases to defense verdicts, including tort, employment law, and medical malpractice. She also successfully litigated cases on appeal. In addition to this defensive work, Finkelstein investigated and prosecuted affirmative fraud claims, including qui tam actions. In 2014 she was awarded the Executive Office of United States Attorneys Director’s Award for Superior Performance as a Civil Assistant U.S. Attorney.

Before joining the Department of Justice, Finkelstein clerked for the Honorable Jane Cutler Greenspan on the Pennsylvania Supreme Court. She previously worked as a construction litigator at Duane Morris, LLP and Cohen Seglias Pallas Greenhall & Furman, PC.

In addition to practicing, Finkelstein spent much of her career teaching lawyers and law students. She regularly taught at the United States Department of Justice’s National Advocacy Center on ethics, appellate advocacy, legal writing, and trial practice. She frequently serves as a program director for the National Institute for Trial Advocacy, where she teaches depositions, motion practice, and trial advocacy programs. Prior to entering academia full time, Finkelstein served as adjunct faculty of law at Drexel Law, Emory Law, and Rutgers Law. At Drexel, she was awarded the university-wide Adjunct Award for Teaching Excellence in 2015 and the law school’s Carl “Tobey” Oxholm III Outstanding Contribution to the Thomas R. Kline School of Law Community Award in 2021. At Rutgers she was named Rutgers Law School’s Adjunct Professor of the Year every year she taught there.

Finkelstein’s scholarship is as diverse as her litigation and teaching experience. She has addressed various topics, from civil procedure to constitutional law. She is the co-author of the Professional Responsibility textbook “Ethical Lawyering: A Guide for the Well-Intentioned,” which contextualizes the rules of professional conduct in realistic litigation settings.

Finkelstein graduated, with honors, from the Emory University School of Law. She was a highly competitive member of Emory Law’s moot court society and was selected for the Order of the Barristers. She regularly coaches competitive high school, college, and law school advocacy teams.

Nancy B. Rapoport
Professor
William S. Boyd School of Law, University of Nevada, Las Vegas

Nancy B. Rapoport is a UNLV Distinguished Professor, the Garman Turner Gordon Professor of Law at the William S. Boyd School of Law, University of Nevada, Las Vegas, and an Affiliate Professor of Business Law and Ethics in the Lee Business School at UNLV. After receiving her B.A., summa cum laude, from Rice University in 1982 and her J.D. from Stanford Law School in 1985, she clerked for the Honorable Joseph T. Sneed III on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco from 1986-1991. She started her academic career at The* Ohio State University College of Law in 1991, and she moved from Assistant Professor to Associate Professor with tenure in 1995 to Associate Dean for Student Affairs (1996) and Professor (1998) (just as she left Ohio State to become Dean and Professor of Law at the University of Nebraska College of Law). She served as Dean of the University of Nebraska College of Law from 1998-2000. She then served as Dean and Professor of Law at the University of Houston Law Center from July 2000-May 2006 and as Professor of Law from June 2006-June 2007, when she left to join the faculty at Boyd. She served as Interim Dean of Boyd from 2012-2013, as Senior Advisor to the President of UNLV from 2014-2015, as Acting Executive Vice President & Provost from 2015-2016, as Acting Senior Vice President for Finance and Business (for July and August 2017), and as Special Counsel to the President from May 2016-June 2018. In 2022, UNLV’s Alumni Association named her the Outstanding Faculty Member of the Year. Boyd law students have honored her three times: she tied (with Professor Jean Sternlight) for “Faculty Member of the Year” in 2024; she was named “Faculty Member of the Year” (and faculty commencement speaker) in 2021; and she was named “Dean of the Year” by Boyd law students in 2013. She is serving as the President of UNLV’s Chapter 100 of Phi Kappa Phi from 2024-2025.

She is a Fellow of the American College of Bankruptcy and the American Bar Foundation. Her specialties are bankruptcy ethics, ethics in governance, law firm behavior, artificial intelligence and the law, and the depiction of lawyers in popular culture. Among her published works are Bernard A. Burk, Veronica J. Finkelstein & Nancy B. Rapoport, Ethical Lawyering: A Guide for the Well-Intentioned (Aspen Publishing 2021; 2d ed. 2025), Nancy B. Rapoport & Joseph R. Tiano, Jr., A Short & Happy Guide to the Ethics of Using AI and Other Legal Tech (West Academic, forthcoming 2025); and the animated video series Aspen Practice Perfect Series, Professional Responsibility (2024) (with Andrew M. Perlman and Melissa B. Shultz). She is admitted to the bars of the states of California (inactive member), Ohio (inactive member), Nebraska (inactive member), Texas, and Nevada and of the United States Supreme Court. In 2001, she was elected to membership in the American Law Institute, and in 2002, she received a Distinguished Alumna Award from Rice University. In 2017, she was inducted into Phi Kappa Phi (Chapter 100). She has served as the Secretary of the Board of Directors of the National Museum of Organized Crime and Law Enforcement (the Mob Museum) and currently serves as a Trustee of Claremont Graduate University and the Chair of its Audit and Risk Management Committee. In 2009, the Association of Media and Entertainment Counsel presented her with the Public Service Counsel Award at the 4th Annual Counsel of the Year Awards. In 2017, she received the Commercial Law League of America’s Lawrence P. King Award for Excellence in Bankruptcy, and in 2018, she was one of the recipients of the NAACP Legacy Builder Awards (Las Vegas Branch #1111). She has served as the fee examiner or as chair of the fee review committee in such large bankruptcy cases as Zetta Jet, Toys R Us, Caesars, Station Casinos, Pilgrim’s Pride, and Mirant.

She has also appeared in the Academy Award®-nominated movie, Enron: The Smartest Guys in the Room (Magnolia Pictures 2005) (as herself). Although the movie garnered her a listing in www.imdb.com, she still hasn’t been able to join the Screen Actors Guild. In her spare time, she competes, pro-am, in American Rhythm and American Smooth ballroom dancing. In 2014, she won the national U.S. Open Pro/Am Rising Star American Smooth Competition B Division, and in 2017, she came in 2nd in the “C” Open to the World Pro/Am American Style 9-Dance Championship. The most interesting thing about her is that she is married to a former Marine Scout-Sniper. The best way to reach her is to call her on her cell phone.
Product Information
Edition
Second Edition
Publication date
2025-02-03
Copyright Year
2024
Pages
1030
Connected eBook + Paperback
9798892074384
Connected eBook with Study Center (Digital Only)
9798892074391
Subject
Professional Responsibility
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