1 In a footnote, Schneyer recognizes some of the problems with the reviewed texts. Schneyer, Professional Responsibility Casebooks and the New Positivism: A Reply to Professor Chemerinsky, 1985 A.B.F. Res. J. 943, 953 n. 48. I, therefore, do not mean to imply that he is enthusiastic about each of these three books.Google Scholar

2 Id. at sec. IV (describing the value of casebooks that “heavily emphasize the code of professional responsibility and model rules of professional conduct”).Google Scholar

3 The three books were Andrew L. Kaufman, Problems in Professional Responsibility (2d ed. 1984); Thomas D. Morgan & Ronald D. Rotunda, Problems and Materials on Professional Responsibility (3d ed. 1984); Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethics (1983). My review essay, which is the focus of Schneyer's reply, is Pedagogy Without Purpose: An Essay on Professional Responsibility Courses and Casebooks, 1985 A.B.F. Res. J. 189.Google Scholar

4 As used throughout this essay, unless otherwise indicated, when I refer to the codes I am speaking of the American Bar Association Model Code of Professional Responsibility, adopted in 1969, and the American Bar Association Model Rules of Professional Conduct, adopted in 1983.Google Scholar

5 I will discuss this further infra part II of the text.Google Scholar

6 Although the model code does not contain provisions specifically dealing with the attorney as negotiator, the model rules have several sections pertinent to this topic. See Model Rules of Professional Conduct Rule 3.4 (fairness to opposing party and counsel); 4.1 (truthfulness in statements to others).Google Scholar

7 The only provision in the model code directly dealing with attorneys representing entities such as corporations is EC 5–18. Model rule 1.13 covers the “organization as client.”.Google Scholar

8 Model rule 1.2(a) concerns the allocation of decision-making authority and its comment recognizes that it “has no counterpart in the Disciplinary Rules of the Model Code.” Model code EC 7–8 does discuss allocation of decision making.Google Scholar

9 For example, concerning delay, the code simply says that an attorney “shall not … delay a trial when it is obvious that such action would serve merely to harass or maliciously injure another.” DR 7–102(A)(1). For a discussion of the inadequacy of the code, see Edelstein, The Ethics of Dilatory Motion Practice: Time for a Change, 44 Fordham L. Rev. 1066 (1976).Google Scholar

10 The model code says that attorneys shall not “[k]nowingly use perjured testimony.” DR 7–102(A)(4). However, the code also requires attorneys to protect client confidences, DR 4–101, and offers no guidance for how to resolve this conflict. See Nix v. Whiteside, 106 S. Ct. 988 (1986) (attorney's threat to disclose client perjury is not ineffective assistance of counsel).Google Scholar

11 Of course, there is no inherent reason why a course emphasizing the code could not also consider problems outside the code. My point is that it is not the content of the codes but the problems confronting attorneys that should determine the coverage of the course. Moreover, if the focus of the course is on the codes, it is all too easy to give short shrift to matters not dealt with in the rules.Google Scholar

12 Schneyer, supra note 1, at 954.Google Scholar

13 Id. at 955.Google Scholar

14 See Model Code of Professional Responsibility DR 2–110(C) (permissive withdrawal); DR 4–101(C) (describing confidences that a lawyer may reveal).Google Scholar

15 Neither the model code nor the model rules contain any exception permitting attorneys to disclose confidential information about a client's past crimes. Model Code of Professional Responsibility DR 4–101(C); Model Rules of Professional Conduct Rule 1.6. Therefore, e.g., if an attorney learned that a client had framed an innocent person who was going to be put to death for the client's crime, the attorney would violate the codes by disclosing the client's responsibility for the crime to save the innocent person.Google Scholar

16 Schneyer, supra note 1, at 955.Google Scholar

17 See, e.g., Model Code of Professional Responsibility Canon 7 (a lawyer should represent a client zealously within the bounds of the law).”.Google Scholar

18 See, e.g., People v. Belge, 372 N.Y.S.2d 798 (1975) (attorney acted properly in not revealing location of victims' bodies at the bottom of a mine shaft).Google Scholar

19 Schneyer, supra note 1, at 956.Google Scholar

20 This is discussed more fully in my review, supra note 3, at 192–94.Google Scholar

21 Schneyer, supra note 1, at 956.Google Scholar

22 Id.Google Scholar

23 Id.Google Scholar

24 Id. at 957.Google Scholar

25 Id.Google Scholar

26 Id.Google Scholar

27 See id. at 956.Google Scholar

28 Id. at 958.Google Scholar

29 Id. at 946.Google Scholar

30 Id.; Morgan & Rotunda, supra note 3, at 128–36.Google Scholar

31 The material is in chapter 4 (“Ethical Problems in General Litigation”), at 128–36, in a book of nine chapters and 471 pages.Google Scholar

32 Schneyer, supra note 1, at 946.Google Scholar

33 Morgan & Rotunda, supra note 3, at 62–65.Google Scholar

34 Schneyer, supra note 1, at 945; Schwartz & Wydick, supra note 3, at 1.Google Scholar

35 Schneyer, supra note 1, at 949.Google Scholar

36 Schwartz & Wydick, supra note 3, at 1–3.Google Scholar

37 Chemerinsky, supra note 3, at 195.Google Scholar

38 Schneyer, supra note 1, at 949.Google Scholar

39 Morgan & Rotunda, supra note 3, at 142–44 (some of the notes on these pages deal with trial tactics, not negotiating tactics, e.g., at 144 n.4). There is a problem concerning negotiating a guilty plea in a later chapter on issues in criminal law practice. Id. at 224.Google Scholar

40 Schneyer, supra note 1, at 951.Google Scholar

41 Id.Google Scholar

42 Id. at 943.Google Scholar

43 Id. at sec. III.Google Scholar

44 Chemerinsky, supra note 3, at 185 n.17.Google Scholar

45 Id. at 198.Google Scholar

46 Id. at 199.Google Scholar