Tuttle/Morgan Pre Fall 2013 Outline

TUTTLE/MORGAN PRE FALL 2013 OUTLINE

GENERAL PRINCIPLES OF ETHICS
Have to be licensed to practice law:

Cannot practice law unless authorized; Rule 5.5:
(a) A lawyer may not practice law in a jurisdiction in violation of the regulation of the legal profession or asset another in doing so
(b) If not admitted to practice in the jurisdiction shall not:
(1) establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; OR
(2) hold out to the public that they can practice law in the jurisdiction
May face sanctions and liability for unauthorized practice of law: May be found to be criminally contempt, if a paralegal then could face professional discipline, loss of legal fees.
BUT NOT A/C Privilege: If you practice as a non-lawyer you may not loose the possibility of having privileged conversations if the client believes that they are talking to a lawyer.

Becoming a lawyer:

Petition the state supreme court: The State Supreme Court regulates the profession, and you have to ask to be admitted
Formal requirements: (1) must go to an accredited law school, (2) pass character and fitness, and (3) ethics exam, (4) bar exam
Character and Fitness: Purpose is trust worthiness to have a license, and the burden is on the attorney to prove
Offense likely to keep you from the character and fitness:
(1) Pattern of breaking the law
Would have to be an offense that demonstrates that you have a disdain for the law like crimes of alcohol or drug abuse
(2) Acts of dishonest or abuse
May be a single act in crimes such as embezzlement—look out for situations were entrusted with money and abused the trust
(3) Lying on bar examination or application to law school
Failures to disclose are taken very seriously

MISCONDUCT AND MALPRACTICE
Misconduct:

Misconduct; MR 8.4: It is professional misconduct for a lawyer to:
(a)Violate the PR rules directly or indirectly: violate or attempt to violate the rules of RP knowingly assist or induct another to do so, or do so through the acts of another;
Attempts: Can be professionally disciplined for attempting to violate a rule that you do not violate
Inducement: Can be disciplined for inducing others to violate rules
Violating rues through someone else: lawyers who believe they can violate rules by hiring someone else to violate the rule.
(b)Criminal acts relating to honesty: commit criminal acts that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyerin other respects;
Crimes have to relate to honest and trustworthiness: speeding violations would not trigger this, have to be something that would effect your ability to practice law, e.g., in some jurisdiction crimes relating drugs may trigger.
Minor and repeated offenses: minor repeated offenses could indicate an indifference to legal obligations
Also includes crimes that relate to: violence, dishonesty, breach of trust, obstruction of justice, etc.
(c)Dishonest conduct: engage in honesty involving dishonesty, fraud, deceit or misrepresentation
Inability to tell truth: becomes a binding issue when fraud is involved
For both (b) and (c):
Lawyers holding public office:they assume legal responsibilities that go beyond those of other citizen, and an abuse of a public office suggests an inability to fulfill the professional role of lawyers.
Abuse a position of trust:as trustee, executor, administrator, guardian, agent and officer, director or manager of corporation or other organization.
(d)Prejudicial to administration of justice: engage in conduct that is prejudicial to the administration of justice.
Prejudice: manifesting bias in a judicial proceeding against persons wealth, race, or financial status.
(e) State that having an ability to influence a government agency:state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the rules of professional conduct; OR
(f)Help a judge violate the rules of judicial conduct: knowingly assist a judge or judicial officer in conduct that is a violate of applicable rules of judicial conduct or other law.
Bar Admission and Disciplinary Matters; MR 8.1: An applicant for admission to the bar, or lawyer in connection with a bar admission application disciplinary matter shall not:
(a)Knowingly make false statements: Knowingly make a false statement of a material fact; OR
(b)Fail to correct a misapprehension or cooperate with a disciplinary matter: 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 form an admissions or disciplinary authority, except that this rule does not require disclosure of confidential information.
Reporting Professional Misconduct; MR 8.3:
(a) If know other lawyer violated rules, have to nark: A lawyer who knows that another lawyer has violated a rule that raisessubstantial question about their veracity or fitness to be a lawyer should contact the appropriate professional authority.
Substantial qualifier: There is a greater need for reporting depending on the severity of the offense.
(b) Does require client a confidentiality waiver or info obtained in lawyer assistance program
Not required if it would result in a breach of confidentiality: A lawyer should encourage a client to consent to disclosure where the prosecution would not substantially prejudice the clients interest
Disciplinary Authority and Choice of Law; MR 8.5:
(a) A lawyer is conduct to disciplinary action in the jurisdiction he is admitted in and the jurisdiction he misconduct occurs: If it occurs in a jurisdiction outside the one that the attorney is licensed in he is still subject to discipline where he is licensed.
(b) The rules of PRE should apply in the jurisdiction as follows:
(1) If before tribunal, laws apply where tribunal sits, unless tribunal finds otherwise: for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the tribunal provides otherwise; and
(2) For conduct not before a tribunal: where the conduct occurred or where the effect of the conduct occurred
Safe harbor: If the conduct conforms to the rules in which the lawyer reasonable believes that the predominant effect will occur, the lawyer is not subject to this rule
Consequences of lawyer misconduct imposed by trail court:
Contempt sanctions or other civil relief such as striking a claim or defense: could be a reason for discipline
Disqualification: An injunction against continuing as counsel in a matter
Reversal of criminal conviction: in situations where the lawyers abandoned the case,

Malpractice:

Note on malpractice liability: There is not necessarily a relationship between the model rules and malpractice—a violation of the rules may not lead to a per se violation, but it could be considered when determining if there has been a breach of a duty
(1) Duty: A legal duty the lawyer owed the plaintiff, e.g., based on a lawyer-client relationship or sometimes a duty the lawyer assumes. Restatement 48 & 50.
Duty owed to:
Client
Of the lawyer to exercise the skill and knowledge an ordinary lawyer would exercise similar circumstances. Restatement 52(1).
Diligence:
A lawyer shall act with reasonable diligence and promptness in representing a client. MR 1.3
Relevant to consider: The zeal in advocacy and pursuing the clients cause despite personal inconvenience.
Competence:
A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness and preparation reasonable necessary for representation. MR 1.1
Relevant factors include:
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
Weather it is feasible to refer the matter to another lawyer who is competent in the filed
Third parties:
Prospective clients: From the moment that you start to have interactions with them begin to have a set of obligations proportional to the prospective client’s reasonable expectations.
Person to whom the lawyer has expressly assumed a duty: An example is someone who you have written an opinion letter for, i.e., you write to the bank a letter on behalf of your client you also owe a duty to the bank.
Persons lawyer knows the client wanted to benefit: When a client has employed you to benefit a third party, i.e., a beneficiary of a trust.
Policy behind this: If this was not a rule no one would be able to bring malpractice suite
Beneficiaries that the lawyer has assisted a fiduciary client to harm: Can be liable for actions or inactions if you know the trustee has violated duties: (1) you can owe a duty to a third party, (2) if the person that you represents has fiduciary liability if you assist them in abusing that relationship you can be held liable b/c of their duty to third parties
(2) Failure:
Things that can lead to a breach of duty:
Breach of fiduciary: (a) conflict of interest, or (2) breach of duty of confidentiality.
Breach of contract: Especially situations where the contract said that they would deliver high quality services
Duty to refer to a specialist: For some cases you have a duty to refer the person to a specialist
Failure to communicate previous mal practice actions: A lawyer has a duty to tell client if they have previously been charged with malpractice, MR 1.4.
(3) Causation: May have to go to trial to show that the lawyer botched the proceeding and also may require expects come in
(4) Damage: Suffered by the plaintiff as a result of the lawyer’s misconduct. Restatement 53.
(5) Remedies: Tort damages for actual damages, damages for breach of K, damages for breach of fiduciary duty, punitive damages (could include criminal), statutory remedies for consumers, fee forfeiture for breaches for fiduciary duty (complete or partial)

Other issues involving malpractice:

Malpractice in criminal cases; Restatement 53 Comment(d): A convicted criminal suing for malpractice has to prove both that (1) the lawyer failed to act properlyand that, but for the failure , the result would have been different; (2) a convicted defendant must have had that conviction set aside before the malpractice claim can be made.
Malpractice waivers; MR 1.8(h):A lawyer shall NOT
(1) Prospective: Cannot limit future liability for a client’s malpractice unless the client is independently represented in making the agreement (OR)
(2) Retrospective:settle a claim or potential claim for liability with a unrepresented client or former client unless:
client advised in writing of settling
given a reasonable opportunity to seek counsel
The key is that they have to understand what they are giving up

Consequences of misconduct:

Contempt or civil sanctions: Could face contempt sanctions or other civil sanctions such as striking a claim or defense
Disqualification: An injunction against continuing as counsel in the matter
Reversal of conviction:If not properly represented then client’s conviction could be reversed.

Liability for actions of client:

Lawyer tells client to commit a crime: puts blame on lawyer and makes them a target for disqualification
Participating in criminal Acts: helping the client bury someone that they murdered.

THE LIFE CYCLE OF A CASE—FROM THE BEGINNING TO THE END OF LAWYER-CLIENT RELATIONSHIP
Key thing to keep in mind:

A lot of it comes down to whether or not the person reasonably believes that they have a lawyer-client relationship

Prospective clients and Quasi Clients:

Duties to prospective clients; Rule 1.18:
(a)Discusses forming a relationship with lawyer for a particular matter: A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
Anyone who discusses with the lawyer in forming a relationship with a lawyer is a prospective client
(b) If do not undertake as a client still have a duty of confidentiality: Will not disclose any information regarding that client except for disclosing a conflict of interest.
Not all people who communicatewith lawyer get this protection: There has to be an expectation of a lawyer-client relationship, if you just communicate unilaterally with a lawyer you cannot expect this protection.
(c) If (b) applies there is a duty of loyalty: If (b) applies then the lawyer shall not represent a client that could raise a conflict with the prospective client except as provided by (d)
Should limit the conversation and filter for potential conflicts:To avoid disqualifying information a client from a prospective client should limit topic of conversation. If there is a conflict of interest the lawyer should inform the client or decline representation.
(d)If receive disqualifying information under (c) representation is permissible if:
(1) Both the effected 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 that was reasonably necessary to determine whether to represent the prospective client; and
(i)the lawyer was screened from any participation in the matter; (AND)
(ii)written notice was promptly given to the prospective client
Quasi-Clients:
Issue comes up with trade associations: It all depends on the reasonable expectations of the clients on whether or not you owe them duties
Employees you interview during internal investigations: If you do an internal investigation of a company you a duty of confidentiality to the employees, and your duties to them are determined by their reasonable expectations, so have to be really clear

Non-profit and court annexed limited legal services programs:

(a) If the lawyer is working under non-profit or court sponsored program then no expectation of continued representation: A lawyer who, under the auspices of a program sponsored by a nonprofit organizations or court, provides short-term limited legal services to a client w/o expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1)is subject to conflict of interest and duties to former clients only if the lawyer knows that the representation of the client involves a conflict of interest; (AND)
(2) is subject to the government rules of conflict so interest only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by the conflict of interest rules with respect to the matter.
Legal services hotline and advice only clinics: There is no expectation that the representation will go beyond the clinic…it is also impossible for there to be a screen for conflicts in this setting.

Accepting Appointments:

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause: This includes:
(a) Representing client will be an ethical violation:
This would typically be some sort of conflict of interest
(b)Will result in financial harm:
will likely result in an unreasonable financial burden to the client
(c)Clients cause is so repungent that it would impair the lawyer-client relationship: the client’s cause is so repungent to the lawyer that it will impair the lawyer client relationship

The formation of the lawyer-client relationship:

A lawyer client relationship arises when; Restatement 14:
(1) Person manifests to lawyer that they want legal services for him
(a) lawyer says that they will do so, OR
(b) the lawyer fails to say they do not want to and the lawyer knows or should know that the person relies on the lawyer to provide the services OR
(2)Tribunal appoints the lawyer to provide the services
Whether communications amounts to engagement, i.e. person sends lawyer email: Have to look at the circumstances. Would likely happen if the lawyer invites contact or the submission of information
The components of the client engagement letter:
(1)Who the client is (and sometimes who the client is not).
(2) The fee for the case, or the basis of the fee and expenses for which the client will be responsible. See Rules 1.5(b)&(c)
(3) Scope of the representation, i.e., what the lawyer is going to do and not do.
(4) Conflicts of interest the lawyer may have and enough information to let the client give informed consent if it is willing waive the conflicts.
(5) Any departures from usual assumptions about handling confidential information. See MR 1.6
(6) What the client will be asked to do in connection with the representation, such as be candid with the lawyer about the facts.

Allocation of Authority Between Client and Lawyer:

Restatements relating to agency:
Actual Authority Restatement; 26: A lawyer’s act is considered to be that of the client in proceedings before a tribunal or in dealings w/ third persons when:
(1) the client has expressly or impliedly authorized the act;
(2) authority concerning the act is reserved to the lawyer as stated in 23; or
(3) the client ratifies the act.
Apparent Authority Restatement 27: A lawyer’s act is considered to be that of the client if before a tribunal or in a deal if the third party or tribunalassignments that the lawyer is authorized to act on the clients behalf on the client’s(and not lawyer’s) manifestation of such authority.
A lawyer shall abide by clients instructions unless things are implied; MR 1.2 this is subject to (c) (d):
(a) The lawyer shall consult the client unless impliedly authorized to take action:
A lawyer may take such action on behalf of the client as impliedly authorized to carry out the representation
Can only do with express authority:
A lawyer shall abide by the clients decisions to settle a matter
In criminal cases:
A lawyer shall abide by their client’s decision, after consultation with the lawyer as to:
1. A plea to be entered
2. Whether to waive jury trail and
3. Whether the client will testify
May be authorized to :
The client may authorize the lawyer to take specific actions w/o further consultation with the attorney
The lawyer may rely on such an advance authorization, but the lawyer may revoke it at any time
(b)If appointed to represent a client do not endorse the views of the client: A lawyers representation of a client including representation by appointment does not constitute an endorsement of the clients political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if limitation is reasonable in context and client gives informed consent:
Reasonable: Does not fall under threshold of competent and diligent representation
Implied consent: Have to explain to the client exactly what they are giving up
If fail to give informed consent: Will be liable for malpractice
Through these agreements attorney’s may: Limit the scope of the issues that they are going to deal with and agree to limited representation, but this does not mean that the duties are at all curtailed.
(d) A lawyer shall not counsel or assist a client to engage in illegal activity: A lawyer shall not counsel a client in engaging in criminal activity, 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 of scope, meaning or application of the law.
This is a hardline: You can act on behalf of your client but it is limited by the boundaries of the law.