Legal Profession Outline

L=lawyer, C=client, J=jurisdiction, R=representation

May 21, 2001

Introduction

CR p. 15-19 Able, Transformation of the American Legal Profession

Legal profession is a growing and changing organism -> “divisions of race, gender, age, class, structure of practice, and politics make it increasingly difficult for a single association to represent all lawyers.” Numbers went up, private practice went down, and diversity went up (not Latino or African-American).

CR p. 175-178 Schneyer, Professionalism as Politics - skimmed

CR p. 179-180 Wilkins, Who Should Regulate Lawyers?

Four models of enforcement proposals:

1. Disciplinary Controls – current disciplinary system, in which independent agencies acting under the supervision of state supreme courts investigate and prosecute violations of the rules of professional conduct. The basic structure resembles a criminal prosecution; the process is conducted almost exclusively ex post by independent officials who have no prior association with the case. Focuses on punishment and deterrence, compensation allowed in limited circumstances, but secondary goal.

2. Liability Controls – Injured clients, and to a limited extent third parties, have traditionally had the right to sue lawyers under a variety of statutory and common-law theories. Operate on basis of ex post complaints by injured parties, entitled to full compensatory and punitive damages, but generally no restrictions on lawyer’s right to practice law.

3. Institutional Controls – Since lawyers work either in or in the shadow of state institutions, institutions are expressly taking responsibility for uncovering and sanctioning lawyer misconduct. Ex. Fed. R. Civ. Pro. Rule 11 – authorizeds judges to impose sanctions for certain kinds of litigation-related misconduct. These and similar efforts share a common goal: to locate enforcement authority inside the institutions in which lawyers work (ex. a judge will know if a lawyer has failed to file a pleading). Substantive jurisdiction of these institutional enforcement is likely to be confined to the area in which the institution operates.

4. Legislative Controls – Certain public officials and commentators have proposed a new administrative agency that would have sole responsibility for investigating and prosecuting lawyer misconduct. All that is required of this form of control is that its authority and operation ultimately rest in the hands of the executive or the legislative branch rather than the courts.

MR Preamble, p. 13

1. Representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice

2. Representative of clients, various functions – advisor, advocate, negotiator, intermediary between clients, evaluator.

3. Should be competent, prompt, and diligent.

4. Conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. Only for legitimate purposes and not to harass or intimidate others.

5. As public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.

6. Lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.

7. Conflicting responsibilities encountered – between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interests in remaining an upright person while earning a satisfactory living. The Rules presecribe terms for resolving such conflicts.

8. The legal profession is largely self-governing.

MR – Scope, p. 14

13. The Rules are rules of reason, interpreted with reference to the purposes of legal representation and of the law itself. Different types of rules – “shall” or “shall not” (imperatives – define proper conduct for purposes of professional discipline), “may” (permissive – define areas under the Rules in which the lawyer has professional discretion, no disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion). Comments do not add obligations to the Rules, but provide guidance for practicing in compliance with the Rules.

14. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.

15. Most of the duties flowing form the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer ahs agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.

18. Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached.

19. Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege.

20. The lawyer’s exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination.

21. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.

May 23, 2001

Rule 1.1 – Competence – p. 18 – “shall provide competent representation” – “requires legal knowledge, skill, thoroughness and preparation reasonably necessary…”

1. Relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. Many instances, required proficiency is that of a general practitioner; expertise in a particular field of law may be required in some circumstances.

5. Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners; also includes adequate preparation. Determined by what is at stake.

6. A lawyer should engage in continuing study and education.

Rule 1.3 – Diligence, p. 22 – “shall act with reasonable diligence and promptness in representing client.”

1. Despite opposition, obstruction or personal inconvenience...and may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. Act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued (see Rule 1.2). Work load should be controlled so that each matter can be handled adequately.

2. Procrastination – client’s interest often can be adversely affected by the passage of time or the change of conditions.

3. Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. See Togstad.

Togstad v. Vesely, Otto, Miller & Keefe, (Minn. 1980)

Difference of interpretation - Talked about situation - lawyer (D) says he urged client (P) to see another attorney (not malpractice attorney), P understood as legal case.

P was client, sued for potential judgment from alleged medical treatment of husband for attorney's alleged negligence in advising wife with respect to medical malpractice claim.

Rule: “In order to prevail in a legal malpractice action, four elements must be shown: (1) that an attorney-client relationship existed; (2) that the D acted negligently or in breach of contract; (3) that such acts were the proximate cause of the damages; and (4) that but for the attorney’s conduct the individual would have been successful in prosecuting the claim.” H – found for individual, not lawyer.

Lesson - write a letter stating again among other things that you are not the client’s lawyer. Evidence that ordinary business practice, provides evidence for lawyer.

Rule 5.1 – Responsibilities of a Partner or Supervisory Lawyer, p. 86

(a) Partner shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that all lawyers in the firm conform to the Rules.

(b) Direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules.

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer … knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

2. The measures required to fulfill the responsibility prescribed in paragraphs (a) and (b) can depend on the firm’s structure and the nature of its practice. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and a lawyer having authority over the work of another may not assume that the subordinate lawyer will inevitably conform to the Rules.

4. Under (c)(2), whether a lawyer a lawyer has such supervisory authority in a particular circumstances is a question of fact. Partners of a private firm have at least indirect responsibility for all work being done by the firm, while a partner in charge of a particular matter ordinarily has direct authority over other firm lawyers engaged in the matter. Appropriate remedial action by a partner would depend on the immediacy of the partner’s involvement and the seriousness of the misconduct. The supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that misconduct occurred.

6. Apart form this Rule and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate.

P. Smith - need a system to check, all partners could be held liable if no system of check is present.

Rule 5.2 – Responsibilities of a Subordinate Lawyer, p. 88

(a) is bound by the Rules notwithstanding that the lawyer acted at the direction of another person

(b) A subordinate lawyer does not violate the Rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

1. Under (a), that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules.

2. When lawyers in a supervisor – subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment to maintain consistency. But, if the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it.

Rule 5.3 – Responsibilities Regarding Nonlawyer Assistants, p. 89

(a) partner shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer.

(b) same for direct supervisory authority attorney

(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules if engaged in by a lawyer if:

(1) the lawyer orders so, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm in which the person is employed or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

1. Assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

Rule 5.4 – Professional Independence of a Lawyer, p. 90

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) agreement by a lawyer with law firm for (survivor’s benefits, estate)

(2) purchases the practice of a deceased, disabled, or disappeared lawyer, may pursuant to Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price; and

(3) may include nonlawyer employees in compensation or retirement plan, even though the plan is based in whole or in part on profit-sharing.

(b) shall not form a partnership with nonlawyer if any of the activities of the partnership consist of the practice of law.

(c) shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to regulate the lawyer’s professional judgment in rendering such legal services. (obligation to client, not dollar bill holder)

(d) Shall not practice with or in the form of a professional corporation or association authorized to practice law for profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;