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Journal of Legal Education

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In two earlier papers I have written about the professional responsibility of the attorney in criminal practice. Surprisingly, a number of intelligent and experienced lawyers have suggested that problems of the same kind and complexity do not arise, at least with the same frequency, in the work of the civil practitioner. This is a serious misconception, although there are certainly important differences in the civil practitioner's role. For example, unlike the criminal defense lawyer, the civil practitioner does not have the same problems relating to the presumption of innocence, the constitutional right to counsel, and the constitutional privilege against self-incrimination.?

Similarly, unlike the prosecutor, the civil practitioner is not faced with the weighty problems of exercising discretion regarding the initiation of prosecution and similar matters that present unique difficulties in professional responsibility for the prosecutor.

Even so, the civil practitioner is frequently confronted with a significant number of difficult ethical problems, many of which are not identified as such in the day-to-day pressure of practice, and most of which have been rarely raised, if at all, in law school classrooms. The purpose of this paper will not be to resolve these problems, but to identify some of them and to indicate how they can be brought to the attention of law students in the first-year course in Contracts. The discussion will relate to my Contracts course for which I use my own casebook. However, similar problems can be readily introduced through any of the standard Contracts casebooks.



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