Lecture One Constitutional Law and Professional Responsibility
Foundations Expanded edition welcome students to our
comprehensive foundational lecture series, explicitly
designed to prepare you thoroughly for the complexities
and rigors of the bar exam. Today, we initiate our journey
by examining 2 crucial areas of the law, Constitutional law and
professional responsibility. Both subjects carry substantial
weight on the Multi State Bar Examination MBE and Multi State
Essay Examination Mee, thereby warranting meticulous attention
and deep understanding. This expanded lecture will not
only revisit the core concepts but also delve into the nuances
and historical contexts that have shaped these fields,
providing you with a more robust and sophisticated understanding.
Part 1. Constitutional Law We begin by
delving into constitutional law, examining the bedrock principles
that underpin our legal framework.
Our exploration will be more than a mere recitation of rules,
it will be a deep dive into the historical, philosophical, and
practical dimensions of this fascinating subject.
Federalism. Powers of Federal and State
governments Federalism refers to the division and balance of
powers between national and state governments. the US
Constitution specifically delineates these powers,
granting explicit authorities to the federal government while
reserving residual powers for the states.
This dual system of government is one of the most innovative
aspects of the American political experiment, and
understanding its intricacies is key to mastering constitutional
law. Article 1, Section 8 of the
Constitution clearly enumerates federal powers such as taxation,
regulation of Interstate and international commerce, and
National Defense. These are often referred to as
the enumerated powers. Conversely, the 10th Amendment
explicitly reserves to states all powers not delegated to the
federal government, emphasizing state sovereignty.
This division enables states to manage local concerns like
education, public health, safety, transportation, and
welfare. These are often called the
police powers of the states. Notable Supreme Court cases
illustrate federalism principles vividly.
In McCulloch versus, the Supreme Court upheld federal supremacy,
emphasizing implied powers and preventing state interference
with federal institutions. The case involved a dispute over
the National Bank, and the Court's decision, authored by
Chief Justice John Marshall, established 2 critical
principles, the doctrine of implied powers and the principle
of national supremacy. Marshall argued that the
Necessary and Proper Clause of the Constitution gave Congress
the authority to create the bank, even though the power to
do so was not explicitly listed in the Constitution.
He famously wrote the power to tax involves the power to
destroy and Russ the states could not tax the National Bank.
This case was a landmark victory for the federal government and
has been a cornerstone of constitutional law ever since.
Similarly, in Gibbons versus Ogden, the Court clarified
federal authority under the Commerce Clause, reinforcing
expansive federal power in regulating Interstate commerce.
The case involved a dispute over a state granted monopoly on
Steamboat operation in New York waters, which conflicted with a
federal license. Chief Justice Marshall, again
writing for the court, defined commerce in broad terms,
including not just the buying and selling of goods but also
navigation. He also held that the power of
Congress to regulate Interstate commerce was plenary, meaning it
was complete and absolute. This decision had a profound
impact on the economic development of the United
States, as it prevented the states from erecting
protectionist barriers to trade and created a truly national
market. However, the balance of power
between the federal government and the states has not always
been so clear cut. Throughout American history,
there have been periods of both expanding and contracting
federal power. For example, during the New Deal
era of the 1930's, the Supreme same court initially struck down
several of President Franklin D Roosevelt's key legislative
initiatives, arguing that they exceeded the scope of the
Commerce Clause. However, after Roosevelt
threatened to pack the Court with new justices, the Court
began to take a more expansive view of federal power, upholding
a wide range of economic regulations.
This shift in jurisprudence, often referred to as the switch
in time that Saved 9, had a lasting impact on the balance of
power between the federal government and the states.
In more recent years, the Supreme Court has shown a
renewed interest in protecting states rights.
For example, in United States versus Lopez.
Separation of powers Doctrine to prevent tyranny and abuse, the
Constitution establishes A robust separation of powers
doctrine, distributing governmental authority across 3
distinct branches, legislative, executive, and judicial.
This system of checks and balances is designed to ensure
that no single branch becomes too powerful.
The legislative branch, embodied by Congress, holds lawmaking
power, with the House of Representatives and the Senate
crafting legislation. The executive branch, led by the
president, administers and enforces these laws.
Finally, the judiciary, headed by the Supreme Court, interprets
the laws, adjudicates disputes, and ensures constitutional
compliance. Landmark rulings like Marbury
versus Madison firmly established judicial review,
empowering courts to invalidate legislative and executive
actions conflicting with the Constitution.
The case arose from a political dispute following the election
of 1800, in which Thomas Jefferson defeated John Adams In
the final days of his presidency.
Adams appointed several new judges, including William
Marbury. However, when Jefferson took
office, his Secretary of State, James Madison, refused to
deliver Marbury's Commission. Marbury sued, asking the Supreme
Court to issue a writ of mandamus ordering Madison to
deliver the Commission. In a brilliant and strategic
decision, Chief Justice John Marshall, writing for the court,
held that while Marbury was entitled to his Commission, the
Supreme Court did not have the authority to issue the writ of
mandamus. Marshall reasoned that the
section of the Judiciary Act of 1789 that gave the Court the
power to issue such writs was unconstitutional because it
expanded the courts original jurisdiction beyond what was
specified in the Constitution. In so doing, Marshall
established the principle of judicial review, which is the
power of the courts to declare laws and actions of the other
two branches of government unconstitutional.
This power is not explicitly mentioned in the Constitution,
but it has become a cornerstone of American constitutional law.
The separation of powers is not just a theoretical concept.
It has real world implications for how our government
functions. For example, the president has
the power to veto legislation passed by Congress, but Congress
can override A veto with a 2/3 vote in both houses.
The Senate has the power to confirm or reject the
president's appointments to the Cabinet and the judiciary.
The courts can declare laws passed by Congress and signed by
the president to be unconstitutional.
These are just a few examples of the many ways in which the three
branches of government interact and check each other's power,
individual rights, due process, equal protection, and the
Commerce Clause. A comprehensive understanding of
individual rights is vital for constitutional law proficiency,
as these rights frequently emerge in bar exam scenarios.
The Bill of Rights, which consists of the 1st 10
amendments to the Constitution, is the primary source of our
individual liberties. However, the 14th Amendment,
which was ratified after the Civil War, has also been
instrumental in protecting our rights from infringement by
state governments. Due Process The 5th and 14th
Amendments provide due process protections prohibiting
government actions that deprive individuals of life, liberty, or
property without due process of law.
There are two types of due process, procedural and
substantive. Procedural due process requires
fair notice and an opportunity to be heard, as exemplified by
Goldberg versus Kelly. The case involved the challenge
to the termination of welfare benefits without a pre
termination hearing. The Supreme Court held that
procedural due process required that welfare recipients be given
a hearing before their benefits could be terminated.
This case is a landmark decision in the area of procedural due
process and has been cited in countless cases involving the
rights of individuals to a fair hearing.
Substantive due process protect fundamental liberties against
unjust governmental intrusion, highlighted in cases like Roe
versus Wade privacy and Obergefell versus Hodges
marriage equality. Substantive due process is a
more controversial area of constitutional law than
procedural due process, as it involves the courts making
judgments about which rights are fundamental and thus deserving
of special protection. In Roe versus Wade, the Supreme
Court held that a woman's right to an abortion was a fundamental
right protected by the Due Process Clause of the 14th
Amendment. The court reasoned that the
right to privacy, which it had previously recognized in cases
like Griswold versus Connecticut, was broad enough to
encompass a woman's decision whether or The court reasoned
that the right to privacy, which it had previously recognized in
cases like Griswold versus Connecticut, was broad enough to
encompass a woman's decision whether or not to terminate her
pregnancy. The decision in Roe versus Wade
was one of the most controversial in the history of
the Supreme Court, and it has been the subject of intense
political debate ever since. In 2022, the Supreme Court
overturned Roe versus Wade in Dobbs versus Jackson Women's
Health Organization, holding that the Constitution does not
confer a right to abortion. This decision has had a profound
impact on the legal landscape of abortion rights in the United
States. In Obergefel versus Hodges, the
Supreme Court held that the right to marry is a fundamental
right that extends to same sex couples.
The Court reasoned that the Due Process Clause of the 14th
Amendment protects the right to personal choice regarding
marriage and that this right cannot be denied to same sex
couples without violating the Constitution.
The decision in Obergefel versus Hodges was a landmark victory
for LGBTQ plus rights, and it has had a transformative impact
on the lives of same sex couples across the country.
Equal Protection The Equal Protection Clause of the 14th
Amendment mandates governmental impartiality, prohibiting
arbitrary or discriminatory treatment among different
groups. The clause provides that no
state shall deny to any person within its jurisdiction the
equal protection of the laws. The Supreme Court has developed
a three tiered system of scrutiny for analyzing equal
protection claims. Rational basis review This is
the lowest level of scrutiny, and it is applied to
classifications that do not involve A suspect class or a
fundamental right. Under rational basis review, a
law will be upheld if it is rationally related to a
legitimate government interest. Most laws are subject to
rational basis review, and most laws are upheld under this
standard. Intermediate scrutiny This is
the middle level of scrutiny and it is applied to classifications
based on gender and illegitimacy.
Under intermediate scrutiny, a law will be upheld if it is
substantially related to an important government interest.
Strict scrutiny. This is the highest level of
scrutiny, and it is applied to classifications based on race,
national origin, and alienage, as well to laws that infringe
upon fundamental rights. Under strict scrutiny, a law
will be upheld only if it is necessary to achieve a
compelling government interest and is narrowly tailored to
achieve that interest. Brown versus Board of Education
exemplifies the application of strict scrutiny to racial
discrimination, dismantling segregated education systems.
In that case, the Supreme Court held that separate but equal was
inherently unequal and that segregated schools violated the
Equal Protection Clause of the 14th Amendment.
The decision in Brown versus Board of Education was a
landmark victory for the civil rights movement, and it has had
a profound impact on American Society.
Intermediate scrutiny, as demonstrated in Craig versus
Boren, addresses gender discrimination and ensures equal
treatment irrespective of gender.
In that case, the Supreme Court struck down an Oklahoma law that
allowed women to buy beer at age 18 but required men to be 21.
The Court held that the law was not substantially related to the
state's interest in Traffic Safety and thus it violated the
Equal Protection Clause. The case is a key example of the
application of intermediate scrutiny to gender based
classifications. Commerce Clause The Commerce
Clause empowers Congress to regulate activities
significantly affecting Interstate commerce.
Judicial interpretations have substantially broadened this
power. Wickard versus Filburn
illustrates expansive interpretation allowing federal
regulation of even intrastate activities impacting Interstate
commerce. In that case, the Supreme Court
upheld a federal law that limited the amount of wheat that
a farmer could grow, even though the farmer intended to consume
the wheat himself and not sell it in Interstate commerce.
The case is a high watermark for the courts expansive
interpretation of the Commerce Clause, and it has been the
subject of much debate and criticism.
Additionally, Heart of Atlanta Motel versus United States
demonstrated Congress's power to prohibit racial discrimination
in public accommodations, grounding civil rights
protections firmly within Interstate commerce
jurisdiction. The case involved a challenge to
the Civil Rights Act of 1964, which prohibited discrimination
in places of public accommodation.
The Supreme Court upheld the law, reasoning that
discrimination in hotels and motels had a substantial effect
on Interstate commerce, as it discouraged African Americans
from traveling. The case is a key example of how
the Commerce Clause can be used to achieve social as well as
economic goals. Part 2.
Professional Responsibility transitioning to ethical
obligations we explore the legal professions core principles that
dictate professional conduct and responsibility.
This section will provide you with a detailed understanding of
the rules that govern your conduct as a lawyer and the
ethical dilemmas you may face in practice.
ABA Model Rules of Professional Conduct Overview The ABA Model
Rules of Professional Conduct serve as the foundational
ethical standards governing attorneys conduct toward
clients, courts, and the broader legal profession.
Lawyers must consistently demonstrate competence,
diligence, honesty, and integrity.
State Bar associations commonly adopt these rules, making them
binding Professional conduct Guidelines It is important to
note that the ABA model rules are not binding on their own.
They are only binding to the extent that they have been
adopted by the state in which you are practicing.
However, most states have adopted the model rules in some
form, so it is essential to have a thorough understanding of
them. Key Ethics Topics Conflicts of
Interest Attorneys must vigilantly avoid situations
creating conflicts of interest. Such conflicts occur when
personal interests compromise professional judgment or when
the representation of one client negatively impacts another
client's interests. Although informed written
consent may sometimes address conflicts, lawyers must remain
alert to potential ethical pitfalls and diligently document
client consent comprehensively. There are two main types of
conflicts of interest, concurrent conflicts and
successive conflicts. A concurrent conflict of
interest exists when the representation of one client
will be directly adverse to another client or when there is
a significant risk that the representation of one or more
clients will be materially limited by the lawyer's
responsibilities to another client, a former client, or a
third person, or by a personal interest of the lawyer.
A successive conflict of interest exists when a lawyer
represents a client in a matter that is the same or
substantially related to a matter in which the lawyer
formerly represented another client and the interests of the
current client are materially adverse to the interests of the
former client. The rules on conflicts of
interest are complex and nuanced, and it is essential to
have a thorough understanding of them.
When in doubt, it is always best to err on the side of caution
and to seek guidance from a more experienced attorney or from the
state bars Ethics Hotline Confidentiality.
Lawyers must strictly maintain client confidentiality,
protecting all information obtained during representation.
This duty is one of the most important duties that a lawyer
owes to a client, and it is essential to the development of
a relationship of trust and confidence between the lawyer
and the client. Limited exceptions to
confidentiality exist, including disclosure necessary to prevent
imminent harm, death, or severe injury, or when the client
explicitly consents to disclosure.
It is important to note that the duty of confidentiality is
broader than the attorney-client privilege.
The attorney-client privilege only protects communications
between the lawyer and the client that are made for the
purpose of obtaining legal advice.
The duty of confidentiality, on the other hand, protects all
information relating to the representation of a client,
regardless of its source. Attorney-client privilege.
The attorney-client privilege specifically protects
confidential communications between attorneys and clients
intended for obtaining legal advice.
This privilege ensures open, candid communication fundamental
to effective legal representation.
The privilege is narrower than confidentiality, protecting
specific communications rather than the broader information
gathered during representation. The attorney-client privilege is
not absolute, it can be waived by the client, and it does not
apply to communications that are made in furtherance of a crime
or fraud. It is important to be familiar
with the scope of the attorney-client privilege and
the exceptions to it, as a breach of the privilege can have
serious consequences for both the lawyer and the client.
MBE Multiple Choice drills Practicing with MBE style
questions significantly reinforces your grasp of
intricate legal principles. These questions typically
present detailed fact patterns requiring identification of
applicable legal doctrines and selection of the most accurate
legal conclusion. Sample MBE Question 1A State
legislature passes a law requiring all commercial trucks
to be equipped with a specific type of side view mirror that is
not required by federal law. The federal law on truck safety
is comprehensive and detailed, but it is silent on the issue of
this specific type of mirror. A trucking company challenges
the state law, arguing that it is preempted by the federal law.
Is the state law likely to be upheld?
A Yes, because the state law is a valid exercise of the state's
police power. B Yes, because the federal law
is silent on the issue of this specific type of mirror.
C No, because the federal law is comprehensive and detailed and
thus it is likely to be found to have occupied the field of truck
safety. D No, because the state law
places an undue burden on Interstate commerce.
Correct Answer. C Explanation.
This question tests your understanding of the doctrine of
preemption. The doctrine of preemption
provides that a federal law can preempt or supersede a state law
in certain circumstances. There are two main types of
preemption, express preemption and implied preemption.
Express preemption occurs when a federal law explicitly states
that it preempts state law. Implied preemption can occur in
two ways, field preemption and conflict preemption.
Field preemption occurs when a federal law is so comprehensive
and detailed that it is clear that Congress intended to occupy
the field and leave no room for state regulation.
Conflict preemption occurs when it is impossible to comply with
both a federal law and a state law, or when a state law stands
as an obstacle to the accomplishment of the full
purposes and objectives of Congress.
Sample MBE Question 2A Lawyer represents a client who is being
sued for breach of contract. During the course of the
representation, the client tells the lawyer that he intends to
lie on the witness stand. The lawyer advises the client
not to do so, but the client insists.
What is the lawyer's ethical obligation?
A. The lawyer must allow the client
to testify as he wishes, as the lawyer has a duty to zealously
represent the client. B.
The lawyer must withdraw from the representation.
C The lawyer must inform the court that the client intends to
commit perjury. D The lawyer may allow the
client to testify in a narrative fashion without the lawyer
asking any questions. Correct answer.
B Explanation. This question tests your
understanding of a lawyer's ethical obligations When a
client intends to commit perjury under the ABA Model Rules of
Professional Conduct, a lawyer may not knowingly offer false
evidence. If a lawyer knows that a client
intends to testify falsely, the lawyer must take reasonable
remedial measures. These measures may include
advising the client not to testify falsely, attempting to
withdraw from the representation, and, if
necessary, disclosing the client's intention to commit
perjury to the court. In this case, the lawyer has
advised the client not to lie on the witness stand, but the
client has insisted. Thus, the lawyer's next step is
to withdraw from the representation.
If the lawyer is unable to withdraw, the lawyer may be
required to disclose the client's intention attention to
commit perjury to the court. Introduction to MBE Essay
Writing Effective MBE essay responses demand clear issue
identification, accurate articulation of relevant legal
rules, thorough analysis, applying rules to given facts,
and concise conclusions. Employing the IRAC method issue
rule application conclusion ensures structured,
comprehensive answers. Sample ethical dilemma essay
Attorney Alex represents client Bob in a complex business
merger. During the course of the
representation, Bob confides in Alex that he has been engaging
in a fraudulent accounting scheme to inflate the value of
his company. Bob also tells Alex that he
intends to lie about the company's financials during a
deposition in a related lawsuit. Response Structure The main
issue is what are Attorney Alex's political duties when his
client Bob has confessed to a past crime and has expressed an
intention to commit a future crime.
The rule The relevant rules are the ABA Model Rules of
Professional Conduct, specifically the rules on
confidentiality. Candor toward the tribunal and
withdraw from representation under the duty of
confidentiality. A lawyer may not reviewed
information relating to the representation of a client
without the client's informed consent.
However, there are exceptions to this rule, including when the
lawyer reasonably believes that disclosure is necessary to
prevent the client from committing a crime or fraud that
is reasonably certain to result in substantial injury to the
financial interests or property of another and in furtherance of
which the client has, is used, or is using the lawyer services.
Under the duty of candor toward the tribunal, a lawyer may not
knowingly offer false evidence. If a lawyer knows that a client
intends to testify falsely, the lawyer must take reasonable
remedial measures. Under the duty of conduct toward
the tribunal, a lawyer may not knowingly offer false evidence.
Thus, he must take reasonable remedial measures to prevent Bob
from committing perjury. These measures may include
advising Bob not to lie on the witness stand, attempting to
withdraw from the representation, and, if
necessary, disclosing Bob's intention to commit perjury to
the court. Conclusion.
Alex must first try to persuade Bob not to commit perjury.
If Bob insists on doing so, Alex must withdraw from the
representation. If Alex is unable to withdraw,
he may be required to disclose Bob's intention to commit
perjury to the court. Conclusion Today's expansive
lecture thoroughly clarified crucial constitutional
principles, federalism, separation of powers and
individual rights, and detailed professional ethics governing
legal practice. Persistent practice, analytical
exercises, and targeted essay writing will solidify these
concepts further. Our next session promises deeper
integration and practical applications re forcing the
foundational knowledge necessary for success on the bar exam.
Remember that the bar exam is a marathon, not a Sprint.
It is important to pace yourself, to stay focused, and
to never give up. Good luck with your studies and
I look forward to seeing you in our next lecture.