Ethical Framework for Thinking About the Practice of Law

INTRODUCTION

Ethical framework for thinking about the practice of law
Key word: AGENT
A lawyer is an agent
An agent is legally significant for two reasons:
(1) A lawyer is not a principal
What you do is about the client, not you
This is complicated because we often have our own ideas about what should be done in any given situation
Not only are you an agent of your client, you are also an agent of your firm
You are one agent among others that have the responsibilities of serving a corporate entity
(2) A lawyer is an agent and not a tool
An agent is someone who bears moral and legal responsibility for their actions
A tool has no such responsibility
There is a tension created in adhering to these two prongs:
You have responsibilities to your client and your firm, but you also have a responsibility to yourself to abide by moral and legal standards

REGULATION OF LAWYERS

BAR ADMISSION

What drives ethics rules?

Power
There is a specific dynamic to which clients may be vulnerable to abuses
Clients must trust that a lawyer is substantively competent in a given area
Substantive competence requirements cover this
Clients must also trust that a lawyer, like any other agents, uses the power afforded them in good faith and with their best efforts
Keep in mind that lawyers could easily exploit people due to lay people’s lack of knowledge about what exactly lawyers do
Here, we are looking at the vulnerability of the system
The lawyer may know the substantive law well enough, but she could take advantage of or harm the client through engaging in invidious or foolish legal processes/behavior
Character and fitness requirements cover this

Substantive competence

Bar exam
MPRE
Graduation requirements

Character & Fitness – 8.1, 3.3

Bar Admission & Disciplinary Matters – 8.1
8.1 Applies to:
Bar applicants; and
Lawyers in connection with a bar admission application or in connection with a disciplinary matter (lawyers assisting applicant)
Duties – 8.1(a)-(b)
No material false statements – 8.1(a): shall not knowingly make a false statement of material fact
Corrections of Misapprehensions – 8.1(b): shall not fail to disclose a fact necessary to correct a misapprehension known by person to have arisen in the matter
Responding to Requested Information – 8.1(b): shall not knowingly fail to respond to a lawful demand for info from the bar
Limitation – 8.1(b) confidential info under 1.6 NOT required to be disclosed
Rule favors disclosure
Disclosing is better than concealing; concealment may be punished worse than underlying offense
There is a strong presumption in favor of transparency
EX: applicant did not disclose on bar app that he was accused of perjury in old job  disqualified; perjury would not have disqualified, but lack of candor did (Radtke)
Types of Misconduct that May Prevent Bar Admission (8.4)
Acts of Dishonesty/Deception
Truthfulness is important b/c lawyers are often put in positions of trust and not checked up on
Only way to tell trustworthiness is by looking at past acts (propensity); e.g., honor code violations, perjury, forgery
Repeated Illegal Activity
Repeated criminal violations which indicate flagrant disregard for the law and the legal system
Matter of degree (e.g., couple parking tix is fine, but 30 speeding tix probably not)
Financial misconduct
Intentional: intentional abuses of a trust relationship are very serious, e.g., embezzlement, fraud
EX: denied admission for embezzling $$ from moot court fund (In Re Mustafa)
Unintentional: not quite as bad, but reflects poorly on judgment of lawyer, e.g., bankruptcy, defaulting on loans – worried that broke lawyer may get desperate and steal $$$ from clients
Domestic violence
Indicates an analogous relationship where a person in a position of power/trust used their position to abuse someone who is vulnerable.
Also, the reputation of the bar and the maintenance of apopular public image may drive bar admissions so as to effectuate its protection at sufficiently broad boundaries.
This can also be seen in cases involving assault, etc., even when proper rehabilitation has occurred
Substance abuse/Psychological issues
Restricted by ADA; required disclosures on Bar app are very specific now
Duties of Lawyer Advising Bar Applicant
First Question  Is Bar Applicant a Client?
Based on context in which advice is given – is it given as a lawyer or as a family member, friend, etc.?
If NOT a client  Rule 8.1 Applies
Duty Not to Lie – 8.1(a): lawyer has duty not to lie to bar re the bar applicant (e.g., should not give false reference)
Duty to Report Misrepresentations -- 8.1(b): lawyer has a duty to report misrepresentations he KNOWS someone (non-client) has made in a bar app
Limitation  1.6 applies: 8.1(b) does NOT require disclosure of confidential info under 1.6
Facilitating Bar Applicant to Violate 8.1 – 8.4(a): lawyer also has a duty not to knowingly assist someone to violate a MRSo lawyer cannot knowinglyassist bar applicant to violate 8.1 (lying to bar)
If a client  Rules 3.3 Applies
Rule 3.3(b) – Candor Toward the Tribunal: a lawyer representing a client in a proceeding who knows that a person is engaging in fraudulent conduct relating to the proceeding shall take reasonable remedial measures, including, if necessary disclosure to the tribunal  (exception to 1.6 confidentiality)
Policy Justifications for Limiting Bar Admission
Legitimate
Harm to clients: potential monetary harm in civil cases, and penal risks in criminal cases
Reputation of profession: want to keep liars and cheats out so the profession doesn’t look bad
Illegitimate
Limiting competition: cannot restrict access to the bar to inflate the value of legal services; can’t try to limit # of lawyers so other lawyers make more $$$
Exclusion based on unfavorable views/lifestyles: cannot exclude someone for their exercise of fundamental rights (e.g., S.Ct. held Bar can’t exclude communist)
Limitation  Oath requirement: can exclude people who refuse to take oath of loyalty to the US b/c this is germane to legal profession

BAR DISCIPLINE

Bar discipline Standards

Professional misconduct – toward clients
Duty of care (competence & diligence)
Pattern or single act?
Rarely discipline is applied for a single act unless it causes extreme harm or shows extreme negligence
Most times we see discipline for a violation of the duty of care when there is a pattern of negligent acts
The level of punishment is generally low at the beginning
Repeat violations move toward greater discipline much more quickly, i.e. removal from practice (disbarment) permanently or temporarily
This is where the client protection policy kicks in
Duty of loyalty (conflicts of interest)
When you are disloyal to a client to the benefit yourself, punitive punishment is dealt out much more quickly and sternly
E.g., most states have a one strike rule for the embezzlement of clients’ funds
Professional misconduct – toward courts and others
Corruption of process (8.4(d)-(f))
Enough misconduct to suggest that you can control the conduct of judges and other officials
This goes back to the notion of vulnerability
This is up there with the breach of the duty of loyalty with the quickness and sternness in punishment
E.g., most states have one strike rules for paying a judge
Discovery abuse, etc. is less likely to result in significant bar sanctions, unless such abuse is reported by a court
Abuse of process (cf. 3.4)
It is not just people, it is the system that the bar is also interested in protecting
Serious wrongdoing outside role of lawyer (8.4(c))
Directly relevant to practice – clearly predictive of misconduct in the lawyer role
Deception
Fraud
Other misconduct
Keep in mind that we want to maintain the reputation of the bar itself
So, we consider acts that may not be directly related to their performance as a lawyer
Remember that so much of the law itself depends in large regard on people’s respect for it and the legal system

Reporting Misconduct and Lawyer Disability – 8.3, 8.4

Duty to Report Professional Misconduct – 8.3(a)
One of the most commented on, but least enforced norms
Lawyer has a duty to disclose info when lawyer:
Knows that another lawyer has committed a violation of the Rules of Professional Conduct
Conduct raises a substantial question as to that lawyer's (1) honesty, (2) trustworthiness or (3) fitness as a lawyer in other respects
Info is NOT confidential under 1.6
In Re Himmel:
Under the current version of 8.3, Himmel would not have been subject to sanction because the exception of the obligation to report has been extended from privileged communications (information learned in a privileged setting – a communication from or to the client) to confidential communications (information learned in direct relation to the representation of your client).
The category of confidential communications is much more robust (and includes) the category privileged communications.
EX – Procrastinating Lawyer: lawyer has duty to act “with reasonable diligence and promptness in representing a client” under Rule 1.3 – if lawyer knows his lawyer friend is NOT representing clients diligently (violating 1.3)  duty to report
EX – Alcoholic Lawyer: duty to report lawyers who have violated a MR as a result of alcoholism  raises substantial question as to lawyer’s “fitness” to practice law
Disability Defense in Disciplinary Proceedings
Causal link: must show a causal link between the disability and the misconduct – e.g., you broke rules b/c you were drunk all the time (if there’s no link, then bar won’t consider it)
Showing recovery: if bar accepts disability defense will later have to return to bar and show: (1) disability is in control, and (2) there has been no more misconduct
EX – Alcoholic Lawyer: alcoholism can be considered a disability; most often considered by bar in setting a punishment rather than the decision of whether there IS a disciplinary violation

Disciplinary Authority & Choice of Law Issues – 8.5

Disciplinary Authority – 8.5(a)
Lawyers Admitted in jurisdiction: lawyer is always subject to the jurisdiction he is admitted to practice in (regardless of where conduct occurs)
Lawyers Providing Legal Services injurisdiction: even if lawyer is not admitted in the J/D, he’s subject to disciplinary authority if he provides OR offers to provide legal services in that J/D
Parallel Proceedings Permitted: lawyer may be subject to disciplinary of multiple J/Ds for the same conduct
Choice of Law – 8.5(b)
Conduct Arising Out of Litigation  Rules of Court Apply – 8.5(b)(1)
This is easy; for conduct in connection with a matter pending before a tribunal, rules of the J/D in which the tribunal sits apply
Conduct NOT Arising Out of Litigation  8.5(b)(2)
For conduct that does NOT arise out of litigation, choice of law decision will be based on one of two things:
Rules of J/D in which the lawyer’s conduct occurred will apply; OR
If the predominant effect of the conduct is in a different jurisdiction than where conduct occurred, rules of that J/D shall be applied to the conduct
Safe Harbor Provision – 8.5(b)(2): if lawyer can make good faith argument that he reasonably believed the predominant effect of conduct was in a particular J/D, then law of THAT J/D will apply
Procedure:good idea for lawyer to document/record reason why they thought a certain J/Ds rules applied
Problem hard to tell in advance whether safe harbor will apply; so it doesn’t provide much help

MALPRACTICE & OTHER NON-BAR REGULATION OF LAWYERS

Elements of Malpractice Tort Claim – RST § 48-53

(1) Duty
Is There a Duty? Duty of care arises from lawyer-client relationship (may be duties to non-clients too)
Duty to Clients –RST § 50
Current Client: lawyer owes duty of care to current client
Former Clients: lawyer may undertake continuing duties to client when representation requires later conduct
Barnes v. Turner: by doing legal work for client that required a renewal after 5 years, lawyer undertook duty to at least let client know of renewal requirement (duty of care includes on-going duty to protect client’s security interests)
Duty to Non-Clients – RST § 51
Prospective Client: lawyer might owe certain duties to prospective clients; can face liability for:
Revealing confidential info
Failing to tell prospective client that statute of limitations is about to run on his claim
Voluntary Undertaking of Duty: may create duty if (1) lawyer invites non-client to rely on legal advice, (2) non-client so relies, (3) non-client is NOT too remote from lawyer to be entitled to protection
When legal objectives of a client unquestionably intend to benefit non-clients
EX: Beneficiaries of Wills: lawyer may have a duty to beneficiaries named in a client’s will if will doesn’t carry out the testator’s intention due to lawyer’s negligence
Majority of Courts  Yes: most courts permit this
So long as the beneficiary can show injury and causation vis-à-vis proving the intent of the testator
Minority of Courts  No: some courts don’t allow this claim b/c it could hinder how lawyer advises his clients (fearful of beneficiaries suing)
EX: Beneficiaries of Trusts: situations where a lawyer’s client is a trustee and the trustee is injuring the trust’s beneficiaries by spending funds from the trust on unapproved items.
Here, the intended beneficiary can sue the lawyer for malpractice on the basis of a breach of trust.
Like all of these cases, the beneficiary is going after the lawyer because the trustee (or someone similar) is judgment proof.
The lawyer has an affirmative duty if the trustee is getting paid out of the trust fund and is maintaining the trust for the benefit of the non-client.
(2) Breach of Duty
What is the Duty? Standard of Care – RST § 52
Lawyer must execute obligations with the competence and diligence normally exercised by lawyers in similar circumstances
MR may set the standard: standard of care is often defined by the relevant Model Rule (but MR and RST § 52 discourage violation of rule to be basis for liability)
Incompetent Lawyers: a lawyer who owes a duty of care must exercise the ordinary prudence of a reasonable lawyer representation must be competent
EX: med mal lawyer takes on tax case even though he has no tax experience competent lawyer would have recognized they were not competent to take on the tax case and would have referred it to someone else  duty breached
Unfavorable Settlements: lawyers who make bad settlements may breach duty to exercise ordinary diligence and competence
EX: med mal attorney settles before talking to a key witness or before having the P medically examined
Courts will reopen settlement agreements to permit malpractice claims against lawyers
However, keep in mind that an unfavorable outcome does not mean that there was malpractice
(3) Causation/ (4) Injury
Representation of criminal defendants
Most J/Ds: criminal D cannot bring suit until he has post-conviction relief (e.g., exonerated, granted new trial, etc. on a procedural technicality and/or actual innocence)
The Restatement doesn’t require actual innocence
Other J/Ds: follow the actual innocence standard – criminal D not only requires post-conviction relief, but must prove his actual innocence, by a preponderance of the evidence, to recover against his criminal defense D
If lawyer simply failed to raise a legal argument (e.g., 4th amend exclusion), but client is still actually guilty  NO malpractice
Representation of civil clients
Proving injury requires a trial-within-a-trial
You have to prove that the lawyer failed to do what was necessary and, to determine the scope of the injury and the lawyer’s according responsibility, you have to prove that the lawyer’s negligence caused some kind of harm.
In essence, it is a two-prong process. It mostly becomes a medical malpractice case where all elements must be proved to show that the result should have been better for the client. Actually proving the negligence of the attorney is the secondary, and often less time-consuming aspect of the case.
Possible Exception to Injury Requirement  Fee Forfeiture: in cases where the only remedy sought is fee forfeiture, P may not need to show an actual injury to get their fee back
EX: client doesn’t actually lose lawsuit, but lawyer had conflict and should have withdrawn (negligence)  they can get money back for negligence in the air
MR Scope ¶20
A violation of an ethics rule does not prove malpractice, but may serve as evidence proving the scope of a the lawyer’s duty and whether that duty has been breach

Waivers of Malpractice Liability

Prospective Waivers – 1.8(h)(1)
Client must have another lawyer: can only execute a prospective waiver of malpractice liability if the client is independently represented in making the agreement
Requirement extends beyond informed consent or the proffering of advice to seek independent counsel
Independent representation is required (requirement extends beyond informed consent or the proffering of advice to seek independent counsel)
This stringent requirement is applied because the client may not know what she is giving up
Two factors that are considered are the lack of clarity with regards to the lawyer’s duties and the context in which the engagement letter is presented
So, why allow it with independent counsel?
It reflects the appropriate reality of in-house counsel negotiating a reduced fee structure in exchange for certain waivers
RST § 54: these are completely prohibited – no exceptions
Retrospective Waivers – 1.8(h)(2)
Can settle a past malpractice claim with a unrepresented or former client only if two conditions are met:
Opportunity to Seek Outside Counsel – 1.8(h)(2): lawyer advises client in writing of desirability of seeking independent counsel AND gives client a reasonable opportunity to seek advice of independent legal counsel
There is no demand that a client have independent counsel
1.8(h)(2) is silent on a couple of things:
It doesn’t say anything about informed consent
It doesn’t say anything about fairness
Rationale for Prospective vs. Retrospective Waiver Distinction
Difficult for non-lawyers to imagine consequences of a future malpractice waiver
If it happened in the past, at least lawyer can give context to explain what happened to client

Other responses to lawyers’ misconduct

Disqualification in litigation
Post-conviction relief for client who shows “ineffective assistance of counsel”
Criminal or civil liability for participation in client wrongdoing
Statutory or regulatory provisions
…keep in mind that lawyers are subject to laws like the common person is, with very few exceptions

FUNDAMENTAL OF THE LAWYER-CLIENT RELATIONSHIP

FORMATION OF THE ATTORNEY-CLIENT RELATIONSHIP