Legal Profession (Roy, Fall 2004)
I. Lawyers, Role, and Law
A. American Bar Association approved Model Rules of Professional Conduct in 1983
1. Revisions adopted in February 2002 (most jurisdictions adopting some version of these changes)
a. Created by the Ethics 2000 Commission (which was established in 1997)
2. Other sources to look for:
a. ABA Model Code of Professional Responsibility
b. Restatement of the Law Governing Lawyers
c. Constitution
d. Criminal Procedure
e. Statutes
f. ABA Code of Judicial Conduct
g. Rules of Civil Procedure
h. State codes of conduct
3. “The parallel development and influence of the lawyer codes and general civil and criminal law applied to lawyers can result in multiple legal consequences for the same conduct.”
B. Purpose of rules
1. Have to have guidelines
2. Professionalism crisis?
a. Consider proliferation of lawyer jokes, lawyers as problem-makers not problem solvers
3. Education as solution
a. Focus on ethical behavior, with ABA setting the “bare minimum” of requirements
C. Classifications of lawyers
1. Instrument
a. the “hired gun”
2. Director (directive)
a. Lawyer-driven
b. Make decisions independent of client
3. Collaborator
a. Mix of Instrument / Director
1. Blend what the client wants with the lawyer giving input (works with client, not at client)
D. Model Rules Preamble
1. (1) A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
2. As representative for the client:
a. Advisor
b. Advocate
c. Negotiator
d. Evaluator
II. Judicial and Professional Regulation of Lawyers
A. Lawyers’ powers
1. File complaints on behalf of clients
2. Serve discovery requests
3. Answer interrogatories
4. Respond to requests for admissions
5. Depositions
6. Receive pay for legal advice
7. Represent a party during transactions
B. Rule 8.1 Bar Admission and Disciplinary Matters
1. In re Application of Converse (Neb. 1999)
a. P denied admission to bar for various reasons, including posting nude photos in library carrel, creating an obscene T-shirt about dean, etc…
1. Although First Amendment rights at issue, bar’s interest trumps P’s First Amendment claims
2. “(T)he threshold question we must answer is whether conduct arguably protected by the First Amendment can be considered by the Commission during an investigation into an applicant’s moral character and fitness to practice law. We answer this question in the affirmative.”
b. COUNTER: Could P have argued denied admission for beliefs, not conduct
1. Difficult argument since
c. Typical state licensure criteria:
1. Age
2. Education and/or experience
3. Examination
4. Good moral character
RULE 8.1 BAR ADMISSION AND DISCIPLINARY MATTERS
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
2. EXAMPLES FOR CLARITY FOR CLIENTS SEEKING BAR ADMISSION:
a. Client plagiarizes during paper in school; deny admission to bar?
1. LOOK to:
a. Is this isolated conduct?
b. Did client admit conduct to bar admission?
c. Is the conduct fully disclosed?
b. Client has a DUI five years ago, then another one.
1. LOOK to:
a. Is the potential lawyer going to be harmful to future clients, public?
b. Does conduct substance-abuse problems?
c. Is client getting treatment.
c. Client believes in Aryan supremacy and wants to represent KKK
1. LOOK to:
a. Can’t deny admission for belief, but look for conduct
1. If shown to be harmful to others (conduct), then may present problems
Discipline
(Look for a pattern of conduct; usually not actually disciplined with one instance, although are subject to discipline)
3. Purposes of discipline
a. Protect public
b. Protect integrity of legal system
c. Further administration of justice
d. Deter further conduct
e. Rehabilitate lawyer
f. Educate lawyers and public
g. NB PUNISHMENT is NOT one of the purposes of disciplining
4. Sanctions if disciplined
a. Disbarment
b. Suspension
c. Censure (reprimand)
d. Others
1. Probation
2. Restitution
3. Limits on lawyer’s practice
5. Acts justifying discipline
a. Bringing frivolous suits
b. Incompetence
1. Failure to communicate
2. Neglect of client’s case
c. Contempt (eg., rude, disrespectful to judge)
d. Break confidentiality
e. Stealing client’s money
f. Fraud (eg., lying to court)
g. Commit felony
C. Rule 8.3 Reporting Professional Misconduct (the “squeal rule”)
1. AttorneyU. v. The Mississippi Bar (Miss. 1996)
a. Member of bar has sufficient knowledge concerning unprofessional act of another bar member to be compelled to report that conduct to disciplinary authority when supporting evidence is such that reasonable lawyer under circumstances would have formed firm opinion that conduct in question had more likely than not occurred and that conduct, if it did occur, raised substantial question as to purported offender’s honesty, trustworthiness or fitness to practice law in other respects.
RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
2. EXAMPLES FOR CLARITY
a. Lawyer A, following audit, admits to Lawyer B he’s glad IRS didn’t discover hidden money
1. INQUIRY: Lawyer A’s conduct raises a “substantial question” and arguable, Lawyer B “knows” he’s hiding money from IRS
2. NB This sets up an exception to a lawyer’s duty of confidentiality to client (if client a lawyer here); see notes infra
b. Successor Lawyer A discovers prior Lawyer B stole client’s money; does Lawyer A squeal?
1. INQUIRY: First, tell client of problem.
a. Next, Rule 8.3 is triggered (“substantial question”), but further must look at:
b. Client confidentiality
c. Must get permission from client to reveal information
RULE 1.6 CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) 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 used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
c. Lawyer A, partner, discovers Lawyer B, associate, has stolen money from trust account
1. Inquiry: Still have Rule 8.3 question
2. Also, look to Rule 5.1 (supervisory rule) and Rule 5.2
RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
a. Rule 5.1 places responsibility on supervising lawyer, who still has Rule 8.3 obligations
3. Even if associate leaves, must still report (could harm in future)
4. Preventative measures
a. Hire outside consulting firm to audit “in house” workings
b. Establish ombudsman to hear complaints, issues
3. State ex rel. Oklahoma Bar Ass’n v. Busch (Okla. 1996)
a. Court upholds suspension of lawyer, suffering from ADD, for neglect of client matters and deceit in court
b. Lawyer should have sought client’s permission before choosing not to sue doctor personally
4. NB difference in DISCIPLINE and MALPRACTICE (and overlap)
a. Malpractice
1. Lawyer acts negligently, causes loss
2. Subject to civil liability
b. Discipline
1. Lawyer violates an ethical standard, and a pattern of conduct (even personal) may result in various punishments (supra)
5. Reporting requirement of R. 8.3 applies for lawyers to report judges
a. Lawyer who knows judge has committed a violation of the applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office SHALL inform the appropriate authority
Lawyers and Clients: Fiduciary Duty
III. Competence and Communication
WHO IS A CLIENTNB - Not required to have fee or have written agreement to establish a-c relationship
A. Togstad v. Vesley, Otto, Miller & Keely (Minn. 1980)
1. Court upholds ruling evidence sufficient to find man, who met with attorney for 45 minutes, had developed enough of a relationship with attorney to form attorney-client relationship, so attorney could be sued for malpractice for advising poorly on a medical malpractice claim
a. Attorney didn’t tell client about statute of limitations
b. Policy
1. Look at from client’s perspective
a. He went to lawyer for advice, and got advice
b. Lawyer should have reiterated:
1. Not interested in case / case may be time-barred
2. Could have done either in writing or by phone
2. Two theories of analysis:
a. Negligence
1. Under negligence theory, it must be shown that attorney rendered legal advice, not necessarily at someone’s request, under circumstances which made it reasonably foreseeable to attorney that if such advice was rendered negligently, individual receiving advice might be injured thereby
2. INQUIRY: Form a duty?
b. Contract theory
1. Under contract theory, there must be rendering of legal advice pursuant to another’s request, and reliance factor, where advice was not paid for, need be shown in form of promissory estoppel
2. INQUIRY: Offer and acceptance?
3. Analysis for WHO IS A CLIENT?
a. First ask if relationship formed for prospective client (under negligence theory? contract theory?)
1. Look at from client’s perspective, as well as lawyer’s
a. Is it unilateral from person talking to lawyer (then no relationship)
b. If yes, then turn to requirements of Rule 1.18
RULE 1.18 DUTIES TO PROSPECTIVE CLIENT
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
4. Rule 1.18 in summary
a. Prospective client is someone who:
1. “discusses with a lawyer …”
2. “possibility of forming a client-lawyer relationship…”
3. “with respect to a matter…”
b. Prospective client entitled to duties of confidentiality and loyalty
B. How to avoid the Togstad situation (non-engagement)
1. Follow-up with a phone call / letter
2. Decide on front-end if not going to take and let person know
3. Advise person to see another lawyer
4. Inform of concept of statute of limitations, and claim may be time-barred
a. Keep general (being specific could cause more problems)
C. Engagement letters (include):
1. Identify client and related parties
2. Identify third party neutrals: judge, arbitrators, mediators
3. Identify and get consents for conflicts of interest
4. Resolution of confidentiality issues
5. Describe respective responsibilities
6. Identify goals
a. Don’t promise excellent results
7. Proposed staffing, including agents
8. Methods of communication
9. Definition of scope of the engagement
10. Fee agreement and billing schedule
11. Grounds for withdrawal, termination
12. Policy on file retention
13. Methods of dispute resolution between client and lawyer
COMMUNICATION
D. DePape v. Trinity Health Systems (Iowa 2003)
1. Court finds firm breached its fiduciary duties to advise client (a Canadian doctor) during a failed immigration attempt to United States.
2. What the lawyer’s did wrong here:
a. Doctor not at first meeting when discussing move with Trinity
1. It’s not enough to have just one client there; need both
b. Lawyers can’t advise client to lie, break the law
1. Client is putting trust in lawyer
c. Lawyers didn’t follow-up after doctor was rejected at border
RULE 1.4 COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
3. Rule 1.4 in summary
a. (a)(1) Promptly inform of decisions / circumstances
1. Lying does not count as informing and advising
b. (a)(2) Reasonably consult about means
1. Comment 3
a. May require consultation before acting (depending on importance of action and feasibility of consulting beforehand)
b. When immediate decision required (exigency of the situation), lawyer must nonetheless act to reasonably inform even if act beforehand
c. (a)(3) Keep reasonably informed about status
d. (a)(4) Promptly comply with reasonable requests for information
e. (a)(5) Consult about relevant limitations on lawyer’s conduct
f. (b)(1) Explain matter to extent reasonably necessary to permit client to make informed decisions
1. In DePape, should have followed up pursuant to this rule
RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN
CLIENT AND LAWYER
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
E. Scope of Representation and allocation of authority - Rule 1.2 in summary
1. Objectives
a. Always belongs to client (“shall abide by…”)
1. Look to how “weighty” issue is; big picture; resolution of the matter
b. Examples
1. Settlements
2. Summary judgment (split / also a means - but closer to objective)
a. Takes you right to the end
3. Ask for a jury trial
2. Means
a. Belong to lawyer and client (“shall consult…” and “impliedly authorized…”)