The Silences of the Restatement of the Law Governing Lawyers: Lawyering as Only Adversary Practice
Georgetown Journal of Legal Ethics, Vol. 10, No. 2, 1997
Posted: 10 Nov 1998
Date Written: May 1998
The subject of this article is the absence of any significant treatment or "regulation" of new lawyering practices (as third party neutrals, mediators, arbitrators)in the American Law Institute's Restatement of the Law Governing Lawyers. The article reviews a host of ethics and regulatory issues that would be relevant to a complete treatment of "ethical" and professional responsibilility issues facing the legal profession of the 21st century. Among those issues, which have analogues, but not answers, in more conventional adversary practice ethics rules are, conflicts of interests from mixed roles, successive representation and third party neutraliing, confidentiality, duties to disclose information, fees, fairness, pro bono obligations, consent, etc. After considering the issues and the failure of the current Restatement to deal with these issues, the article provides a draft of proposed sections for adoption on ethics and regulation of these issues. To the extent that lawyers are now playing roles different from and in addition to more conventional adversary representation and counseling functions, the Restatement should provide some guidance for these newer "peace-making" and "creative" roles of lawyers. The author is Chair of the CPR-Georgetown Commission on Ethics and Standards in ADR which is drafting proposed ethics rules, standards and "best practices" white papers for a number of different bodies to consider.
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