Lawyers face potential ethical exposure with decisions that are not properly considered. Having a comprehensive guide to consult in difficult decisions in litigation is helpful for maintaining an ethical law practice. Fair Fight: Legal Ethics for Litigators (ABA 2017), written by Lawrence J. Fox and Susan R. Martyn, provides lawyers with this resource. This book showcases what ethical advocacy looks like at both very high and detailed levels, including matters outside of the courtroom, pleadings, motion practice, settlements, and appeals.
Fair Fight provides a thoughtful balancing act that details how to maintain a legal practice, ethically, containing over 500 pages supplemented with charts and extensive notations for readers to apply to their own individual case scenarios. The content is heavily footnoted with citations that provide opportunities for readers to engage with legal authority and secondary sources. Breaking down the content into bite-size sections, the book features situations where lawyers engage with clients or otherwise exercise agency in the attorney-client relationship to showcase the applicable ethical rules in an easy-to-digest format.
The book is also populated with “Question & Answer” segments, which highlight practical applications of the attorney-client communication. Each of these sections provides insight into how attorneys should approach a typical client concern ethically. Fox and Martyn use the Q&As to present all the legal and ethical information their readers need in a way that can be applied to real client interactions.
Included in the text is each jurisdiction’s Rules of Professional Conduct, applicable agency and malpractice implications, some notes on fee-shifting provisions, and a sprinkling of the Rules of Civil Procedure. Fox and Martyn make this reference guide a mainstay for lawyers’ shelves by creating a book that helps readers zero in on the relevant ethical considerations for the everyday practice of law.
The book flows logically, walking readers through each ethical rule and application one at a time. It starts with a discussion of legal ethics at the 25,000-foot level, describing what ethical advocacy looks like through many of the stages of litigation. The book outlines the potential pitfalls for lawyers who believe they have the power to take on the toughest advocacy cases or “lost causes” without considering the implications of Federal Rule of Civil Procedure 11 or the ABA Model Rule of Professional Conduct 3.1. The commentary sets up an easy-to-read flow throughout the book.
The book also provides readers with an in-depth look at who their clients really are—depending on the situation. Starting with a look at the differences between actual, implied, and prospective clients, it then walks readers through different client-lawyer relationships, including explaining the entities themselves—be it a pro bono, government, joint, or entity client—and how to interact with them. The book also discusses representative matters—fee structure, communication, confidentiality, work product, and conflict of interests involved when working with clients.
After laying the groundwork for working with clients, Fox and Martyn then outline the limits within the law—when to withdraw, the supervising of lawyers, court orders, fraud, and bias—to create a road map that lawyers can easily follow when they’re in their individual representative capacities.
Next, the authors cover ethical practices to abide by when representing clients in pretrial matters and during trials. For example, the book discusses the ethics relating to investigating individual cases, contacting nonclients, discovery concerns, expert considerations, and negotiations. Particular emphasis is made in the settlement section on how to best communicate with opposing counsel and an individual client regarding material facts. Fox and Martyn also explain the candor required before a tribunal, impartiality related to ex parte communications and publicity, and how to effectively yet ethically advocate for a client during the appeals process.
In short, Fox and Martyn’s expertise in legal ethics led to the creation of a much-needed resource: A comprehensive resource for lawyers who have large or small ethics questions that come up in the day-to-day practice of law. This guidebook should remain a mainstay on any lawyer’s desk as they navigate the practice of law, ethically. For lawyers on the lookout for a desk guide to quickly comb through sticky ethical rules, Fair Fight should be at the top of the pile.
Josephine M. Bahn is an associate editor for Litigation News.
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