Professional Responsibility Outline PDF

Themes, Admission to the Bar, Diversity, and Discrimination MRPC: Model Rule of Professional Conduct. Written by ABA and adopted by most states as binding. INTRODUCTION Reason to study legal rules: (1) professional security to stay out of trouble (2) to be able to recognize improper conduct from ot...

Themes, Admission to the Bar, Diversity, and Discrimination MRPC: Model Rule of Professional Conduct. Written by ABA and adopted by most states as binding. INTRODUCTION Reason to study legal rules: (1) professional security to stay out of trouble (2) to be able to recognize improper conduct from other lawyers and protect your clients. Ethics/morals vs. legal ethics Legal ethics definition: “principles of conduct that members of the profession are expected to observe in the practice of law. “ -​ Legal ethics are not debating right vs wrong, but considering what particular conduct violates a written code. -​ The right thing to do is not necessarily the legally ethical thing to do. Professional Lawyers: must be licensed, receive extensive technical training; -​ Lawyers are rated really low in a poll of whether individuals would trust them. Overview Central Themes: 1) Conflict of interest: Competing interests or obligations, you can't sue your own client -​ You have a duty to protect the confidences that your client shared with you, but also balance a feeling of a duty to protect the community if the information puts them in danger. 2) Truthfulness: Rule 8.4 prohibits "dishonesty, fraud, deceit [and] misrepresentation” -​ You have a duty to advance clients' interest, or at least not to harm them, while still being truthful in the dealings with the tribunal 3) Lawyers' duties to clients vs. their duties to the justice system: Spectrum— Duties to client (criminal lawyer) → duty to justice system (judge) 4) Lawyers' personal and professional interests vs their ethical and fiduciary obligations: -​ Considerations of how a lawyer handles their job when other things might come in the way including need for self-care, vacation, or personal problems. -​ A lawyer might feel pressure to earn money, so might not do as much pro bono work 5) Self-interest as a theme in regulation of lawyers: ABA Model Rule 1.5(b) States that a lawyer must disclose base or rate of the fee, preferably in writing, before or within a reasonable time after commencing the representation -​ Exception: no need to disclose if the lawyer will charge a regularly represented client on the same basis or rate. -​ BUT, any changes in the basis or rate of the fee or expenses shall be communicated to the client. -​ Hedges: 1) no need to disclose how many hrs lawyers might work 2) no need to provide it in writing 3) no need to tell the same client different base rates for different issues if you've worked with them for a while 6) Lawyers as employees: Institutional pressures on ethical judgement: New lawyers who have little authority might be incentivized to stay loyal and not to criticize their superior's conduct out of fear of retaliation through promotions, raises, bonuses, attractive assignments. 7) The changing legal profession: New technology brought about by globalization 1 ABA (American Bar Association): Drafts and issues Model Rules of Professional Conduct and recommends that state courts adopt them as law. (State w/ the fewest departures from Model Rules is Delaware) -​ ABA is a private nonprofit membership organization. The state bar associations are independent of, not subordinate to the ABA. -​ ABA has limited governmental authority. That is why the ABA ethics rules are called the Model Rules of Professional Conduct. Judges: In federal and state courts, a judge MUST report misconduct by the lawyer to the lawyer disciplinary agency if it violates an ethical rule that “raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” (8.3) Rule 3.3(d) requires a lawyer to reveal all material facts to the judge, even facts adverse to her clients. *(Restatement 112 comment b: takes the position that privileged information is exempted from this requirement) The Restatement is NOT ALWAYS consistent with the Model Rules. -​ In these cases, the comments in the Restatement usually note the discrepancy and explain why. State Ethics Codes *most important source of guidance for lawyers for ethical obligations. ​ Contains substantial variations from the ABA model rules, so practitioners must rely on the pertinent state rules NOT the model rules. ​ Purpose: to guide lawyers in evaluating what conduct is proper in various situations It applies to every lawyer that is admitted to practice in that state. ​ If there are questions about the rules: ○​ The lawyers can call the bar counsel, or bar’s ethics committee ○​ A lawyer may write a formal inquiry to the ethics committee, giving hypotheticals (takes months) ​ **If a state ethics rule clearly requires or prohibits conduct, in most cases a lawyer should follow the rule over the restatement ** ​ Courts consult the ethics code for guidance in determining whether a lawyer has engaged in malpractice, has charged an unreasonable fee, or should be disqualified from representation of a client because of a conflict of interest. (Rest. 1 comment b) ​ If a comment made within state law is not adopted into federal law, the lawyer must abide by the federal law if they are admitted to practice in their local federal court. CHAPTER 1: Legal Profession, Bar Admission, History, and Diversity Historically, law kept out women, POC, immigrants, Catholics, Jews → “to protect their turf and limit competition” Contemporary bar admission requirements: -​ Rules for admission to the bar are established by the state's highest court. -​ Licensing process is organized by state Basic requirements Include: 1.​ Graduation from accredited undergrad 2  2.​ Graduation from law school (usually ABA) 3.​ Submission of application for admission to the bar 4.​ Finding that applicant is in good moral character and is fit to practice law 5.​ Passing score for bar examination (NY specifically requires applications to perform at least 50 hrs of pro bono hrs.) 6.​ Most states require U.S. citizen or permanent resident (Exceptions California, Florida, Illinois, Nebraska, NY, Wyoming (Have changed their rules to allow for illegal immigrants not fully documented to pass the bar)) Once admitted to bar: To continue his/her status as an attorney: -​ Must spend certain # hours on legal education, pay annual dues, continue membership in the state bar association. Practicing in another state: Unlimited time: If a lawyer has already been admitted to the bar in another state, sometimes depending on # of yrs of practice, can be admitted to another state Limited time: A lawyer who seeks admission to litigate only 1 case may be admitted pro hac(meaning “for this time only” vice by association w/ a lawyer admitted in the state The Bar Examination "Waive in" → allowed after practicing for specific # hours, satisfying character and fitness, and paying a fee Exam includes: MBE- Multistate Bar Examination, MPRE- Multistate Professional Responsibility Examination, essay questions, Character and Fitness (considering if applicant will practice in honest/competent manner) Criteria for evaluation (usually runs 31 pages long) ​ Asking information about residence, employment history, criminal records, traffic records, credit history, records of any litigation in which they have been parties including civil actions, any debt over $500 which are more than 90 days past due within the past 3 years. ​ Some states may ask questions about substance abuse and receiving treatment for it, some states may ask about criminal conduct. **For the bar examination, you should be “scrupulously honest in everything you say” EVEN if the disclosures could delay or prevent your admission. Bar examinations DISLIKE applications who lie or conceal** 8.1 ​ Board more concerned about Serious, Recent, and Recurrent ​ Being a convicted felon can prohibit you from admission to the bar ​ Some states look at social media ​ Make sure law school application is consistent with the information provided for bar Mental Health Questions: National Conference of Bar Examiners (NCBE) conducts the character and fitness evaluation for half of US States -​ Some people who suffer from serious mental illness would dis-serve their clients because of their illnesses. Perhaps some applicants pose a danger to others. Such concerns have led bar examiners to ask a variety of questions. Until the 1980s and 3  1990s, many states asked detailed and intrusive questions. Most states have now narrowed their inquiries. Substance Abuse: -​ A lawyer may have difficulty competently representing a client if she has a substance abuse problem or he may “borrow” from client accounts to feed his habit. -​ State’s offer programs for lawyers to help. -​ Double-edge sword. -​ You get the help→ people know -​ You don’t get the help → no sympathy b/c you didn’t get the help when it was offered. ABA adopted a Model Rule on Conditional Admission to Practice Law -​ Providing a model to states that have not yet established a conditional admission procedure HISTORY AND DEVELOPMENT OF THE U.S. LEGAL PROFESSION Pre-revolutionary America ​ Colonial America was an "era of law without lawyers" instead theologians, politicians, farmers, fisherman, and merchants The 19th and 20th centuries ​ As industry developed w/ the telegraph (manufacturing and transportation), so did the law. As commerce grew, lawyers became more necessary. ​ Lawyers seen as "necessary evil" ​ Growth in railroad projects, large financial trusts, and industrial corps led to the birth of the Wall Street transactional lawyer. History of American legal education ​ Lawyers entered practice by apprenticing other lawyers allowing them to get a legal education. ​ Practiced the Dwight Method (Combination of lecture, recitation, and drill) Law schools beginning to use the Socratic Method Langdell said: "the law" is a science. -​ He believed that legal education should focus on the internal logic of the law -​ A modified version of Langdell's case method remains the dominant mode of legal education Diversity and Discrimination in the legal profession ​ Historically, it was based on self-interest (keeping the law that worked for you); based on social elitism (including businessmen, farmers, landowners, politicians, and theologians; and there was racism/sexism from caucasian and men. ​ Immigrants: in the 20th century, the professional elite said they wanted to exclude Jewish and Catholic Eastern and Southern European immigrants from the profession ​ Women: they used to say women who wanted and tried to become a lawyer were committing “treason” against the “order of nature”. ○​ Stating, “god designed sexes to occupy different spheres of action and that it belonged to men to make, apply, and execute the laws” ​ African Americans: They were largely excluded from practice of law with limited access to education, apprenticeships, and bar admission. ○​ The first African American admitted to the ABA in 1911 was William Henry Lewis. ​ He was ousted once he was discovered. ABA ended the ban against African Americans membership in 1943. 4 ​ Socioeconomic disparity: one study found that only 5% of law students come from families whose income is in the bottom quartile in the US, while 67% came from the top quartile. ​ Lawyers with disabilities: The law requires employers with 15 or more employees to make reasonable accommodations for those who have covered disabilities unless doing so would impose unreasonable hardship on the employer. -​ ADA (The Americans with Disabilities Act) combats discrimination against people who have physical or mental disabilities. -​ US Equal Opportunity Employment Commission says that ADA applies to: “Persons who have impairments [that] substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing, manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered. ​ Lesbian, gay, bisexual, transgender, and queer lawyers: Study showed that 26% of lesbian, gay, bisexual lawyers were reported that they had been denied a promotion; 19% said they had been denied good assignment or received unequal benefits; 15% reported they had received unequal pay; 25% believed they lost a potential or actual client b/c of their sexual orientation. Rule 8.4(g): It is professional misconduct for a lawyer to…(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related the the practice of law. *This rule does NOT limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. *This rule does not preclude legitimate advice or advocacy consistent with these Rules. Comment 3: explains that harassment includes demeaning verbal conduct and that sexual harassment encompasses “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Regulation, Discipline, and Liability Institutions that Regulate Lawyers: ​ Law is a heavily regulated industry and “self-regulated.” Lawyers are licensed per state. Model Rules of Prof. Conduct, Preamble, Comments 10 & 11 ​ The legal profession is largely self-governing… ​ The ultimate authority over the legal profession is vested mainly in the courts ​ “To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated” ○​ Meaning: If lawyers can meet the obligations of their profession, then there is no need for government involvement. ​ “Self-regulation also helps maintain the legal professional’s independence from government domination…for abuse of legal authority is more readily challenged by a profession whose members are not dependent on the government for the right to practice.” Insulate lawyers from governmental control: Restatement 1, comment 1d “the rules governing lawyers are more protective of lawyers and impose less regulatory constraint than they would if state legislatures wrote them. 5 Overview Federal and State Courts ​ Lawyers are governed by professional rules, usually adopted and enforced by state supreme(highest) courts (not the legislature). The courts regulate lawyers. Administrative agencies establish and implement rules governing lawyers who practice before them. Federal and state legislatures play a further role in regulating the bar. ​ Most of the rules are based on a model that was written by the ABA. Drafting is done by a committee of practicing lawyers, judges, and law professors. ​ When considering the adoption of ethics rules for their own state, state courts often rely on committees of lawyers. Most of the comments come from lawyers. ​ A lawyer who is licensed in two states is expected to know the rules of both jx and to know when each jx’s rules apply vs the other. State and Local Bar Associations: A state bar that accepts delegated functions from the state’s highest court is called an integrated or unified bar rather than a voluntary bar. ​ In unified state bars, membership is a condition of obtaining a license to practice law. Lawyer disciplinary agencies (Often called “bar counsel’s officers” or “disciplinary counsels”) ​ They investigate and prosecute misconduct that violates the state ethics code. ​ Like disbarment, suspension, and public or private reprimand. ​ These agencies are usually run by the highest court in the state, by the state bar association, or jointly by the court and state bar. ​ Rest. 8: Lawyers are subject to criminal law to the same extent as non-lawyers Administrative agencies: Lawyers can represent clients in administrative adjudications (like social security or immigration hearings) or in agency rulemaking proceedings. They may appear for state and federal agencies as long as they are admitted to practice in that state. -​ These agencies oftentimes have their more ethical and procedural rules that the lawyers have to follow -​ If the agency has its own process for admitting lawyers→ lawyers will need separate admission to practice before an agency How a disciplinary case proceeds (flow chart summary) ​ Complaint by client or by the lawyer→ Bar counsel investigates complaint→ (2 different paths) ○​ Path 1: If complaint does not warrant changes→ then file is closed. ○​ Path 2: Changes filed if warranted by investigation → Hearing committee conducts hearing, makes factual findings, recommends sanction→ Hearing committee decision reviewed by judicial agency and/or by highest state court, the reviewing body makes the final decision on sanction. How do Disciplinary proceedings work: -​ Highest courts in the states run the disciplinary system (some are by the state bar associations). An independent office is set up by the court and uses staff attorneys to investigate and prosecute charges against lawyers. If the disciplinary agency thinks that the complaint against a lawyer is warranted, it presents the case to an adjudicator. The adjudicator(s) hear evidence, make findings of fact, and recommend sanctions. The 6  adjudicator’s recommendations are then reviewed by an administrative board. Decisions of the board may be appealed to the state’s highest court. -​ Rule 32 of ABA Model Rules for Lawyer Disciplinary Enforcement: There is no statute of limitation on disciplinary violations. Rule 1.2 (d): 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 w/ 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. Comment 9: -​ This prohibition mentioned in 1.2(d) does not preclude a lawyer from giving honest opinion about the actual consequences that appear likely to result from the client’s actions. -​ The fact that the client might use the advice to act in a criminal or fraudulent way doesn’t make the lawyer automatically a party to the dealings. -​ There is a distinction between presenting an analysis of legal aspect of questionable conduct and recommending the means by which crime or fraud might be committed. Comment 10: -​ When the client’s court of action has already begun and is continuing, the lawyer’s responsibility is delicate. The lawyer is required to avoid assisting the client. -​ Examples: drafting or delivering documents that lawyer knows are fraudulent, or suggesting how the wrongdoings can be concealed. -​ If a lawyer finds out that his dealings have been assisting in fraudulent actions, he must cease immediately. Restatement 94 comment C: A lawyer's intent to facilitate or encourage wrongful action may be inferred if in the circumstances it should have been apparent to the lawyer that the client would employ the assistance to further the client's wrongful conduct, and the lawyer nonetheless provided the assistance. ​ Rule 1.2 prohibits assisting a client only in conduct that the lawyer "knows" is fraudulent ○​ Excludes lawyers negligent or reckless conduct -​ A lawyer might be liable for negligence if he doesn't take the required level of diligence to discern client fraud (negligence) -​ A good rule of thumb: lawyer should be wary if a client's past or contemplated conduct appears to involve intentional or knowing misrepresentation to another. Rule 1.0 (d) Defines"fraudulent" -​ Fraud denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has the purpose to deceive. 7  -​ Fraud involves an intentional misrepresentation of a material fact a lie or a purposeful deception. ​ Omissions and half-truths can constitute fraud. Rule 4.1(b) bars a lawyer from knowingly failing to disclose a nonconfidential material fact when disclosure is necessary to avoid assisting a client's fraudulent act. Comment 1: explains that "misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. Comment 2: Refers to statement of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. -​ In other words: Does not allow lawyers to lie for the purpose of negotiating a settlement, and doesn’t allow a lawyer knowingly to make a false statement of material fact or law. -​ “Material” -​ Accepted conventions in negotiations and certain types of statements AREN’T material fact -​ Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim ARE material fact so the existence of an undisclosed principal except where nondisclosure of the principal WOULD be fraud. ○​ Restatement 67 commend d→ inaction (through nondisclosure) as well as action may constitute fraud under applicable law ​ If the disciplinary action is filed based on conduct that is subject to pending criminal charge→ the disciplinary action is stayed until the criminal proceeding is concluded (Rest. 5 Comment g) ​ Rule 8.5 governs when each ethics rule applies. ○​ If a lawyer is practicing before a tribunal(including arbitration or administrative agency that adjudicates a matter and court) in another state → then that other state’s ethics rules apply ○​ If the lawyer is doing transactional work or lobbying a legislature or agency → then jx or which the lawyer’s conduct occurred OR if the predominant effect of conduct was in a different jx then that jx applies. 8 Reporting Misconduct by Other Attorneys: the key feature of a self-regulating system A Duty to Report Misconduct Rule 8.3:Professional Misconduct Reporting (a) A lawyer who knows of an ethical violation by another lawyer that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer have to report the ethical violation to the disciplinary authority. (b) Requires reporting misconduct by judges (consider what “substantial question” (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. -​ Rule 1.6: information required to be in confidence based on confidentiality. Comment 1: Lawyers have a professional duty to report known ethics violations and judicial misconduct, especially when victims might not discover the offense. Comment 2: a lawyer should encourage a client to waive confidentiality and permit reporting if that would not substantially prejudice the client. Comment 3: Rather than requiring reporting of every violation (which proved unenforceable), the rule requires reporting only "substantial" violations based on the offense's seriousness, not the amount of evidence. Comment 4: The reporting duty doesn't apply to lawyers who are specifically hired to represent other lawyers facing professional conduct questions. Comment 5: a lawyer who learns information about misconduct while participating in an “approved lawyers assistance program” is exempted from the requirement to report that information. Test- whether a reasonable lawyer would have a firm opinion that the conduct in question more than likely occurred. (Restatement 5 comment i) -​ The restatement also says that if a lawyer learns of misconduct during an adversary proceeding and reporting would harm the client’s interests, the lawyer should defer reporting until the client’s interests can be safeguarded and the client consents to waive confidentiality. Lawyer’s responsibility for misconduct by Colleagues and superiors: Overview of rule 5.1, 5.2, 5.3: 5.1: establishes that a partner or supervising lawyer is responsible for ensuring compliance with the ethical rules by subordinate lawyers and explains when a senior lawyer may be subject to discipline for the conduct of a subordinate lawyer. 5.2: states when a subordinate lawyer is responsible for her own conduct, and under what circumstances she may follow orders without fear of discipline. 5.3: using language nearly identical to that of Rule 5.1, explains the responsibilities of lawyers who supervise nonlawyer employees for ensuring that the employees comply with the rules of professional conduct. It further explains when a lawyer may be subject to discipline based on the conduct of a non-lawyer employee. Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers (page 115) (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. 9  -​ Must set up systems to prevent ethical problems, like ensuring continued education in legal ethics. -​ Comments 2 and 3: in small firms of experienced lawyers, “informal supervision and periodic review” may suffice, while large firms may require “more elaborate measures” -​ While this “law firm” might seem like just partners or other managers, Rule 1.0(c) Comment 3 defines a law firm to include legal services organizations and the legal departments of corporations, government agencies, and other organizations. 5.1: (b)​A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms the Rules of Professional Conduct. -​ Comment 6 and 7: If a subordinate lawyer commits an ethical violation, the supervising law is NOT responsible IF the supervisor did not direct or know about it -​ BUT, the violation could reveal a breach of the supervisor’s duty under Rule 5.1(b) to make reasonable efforts to prevent violations. Rule 5.1 (c)​ A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: -​ Comment 5: Partners have at least an indirect responsibility for all work being done by the firm as well as a supervisory responsibility for work being done by subordinate lawyers on matters for which they are responsible. (i)​ The lawyer orders or, with knowledge of the specified conduct, ratifies the conduct involved; OR -​ Comment 4 & Rule 8.4(a): A lawyer cannot avoid responsibility for violation of an ethical rule by ordering another lawyer to do the prohibited act. (ii)​ 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 remedial action. -​ Any partner/authority in the firm who knows about the actions and fails to do anything to reduce or prevent the harm also commits a violation. Rule 5.2: Responsibilities of a Subordinate Attorney (a) a lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. Comment 1: A lawyer is not excused from responsibility claiming to just “follow orders”. However, If a supervisor directed the action, the subordinate may be able to prove that he did not actually know the action was improper. 10  5.2 (b) 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 Comment 2: If the supervisor reasonably thinks the conduct is proper, the subordinate may undertake the action even if he believes otherwise. If the supervisor turns out to be wrong, → the supervisor could be disciplined. -​ If the superior was so wrong that it was unreasonable, then the subordinate might also be disciplined. -​ Understanding “Reasonable”: (1) do research (2) seek advice A lawyer who is told to do something that the lawyer thinks is unethical has options: (1) accept the direction of superior (2) argue with superior (3) discuss the problem with another superior (4) do more research and investigation for clarification (5) ask to be relieved from the work (5) resign or be fired from employment (6) report superior to appropriate disciplinary authority Rule 5.3 Comment 2: Law students: aren’t usually covered by the ethical rules (except for Rule 8.1 discussing disclosures for bar). A student can be sued for violating ethical rules. Wieder Case: Facts: Howard Wieder, a New York law firm associate, reported misconduct by another associate who had allegedly forged checks and failed to complete promised work. When Wieder asked the firm's partners to report this to the state bar, they initially refused. Though they eventually did report it after Wieder's persistent requests, they fired him months later. Takeaway: NY Court ruled that while employers can usually fire anyone for any reason (at-will employment), they cannot fire lawyers for reporting ethical misconduct, because lawyers have a duty to both their employer AND the public. This became an important precedent that later expanded to protect lawyers who report potential misconduct even just internally. Civil Liability of Lawyers Definition of legal malpractice: umbrella term covering all of this → Professional misconduct that has caused harm to another person, Tort claim for negligent or intentional misconduct, Breach of contract b/w lawyer and client, Violation of fiduciary duty owed by the lawyer to the client. Restatement 48, comment c and Restatement 49 → stating that a client can sue the lawyer for negligence, intentional misconduct, breach of K, or breach of fiduciary duty if client has been damaged by lawyer’s mistake. “But For” Liability General rule is that in order for a claimant to prevail, she must show that “but for” the conduct of the lawyer, the harm would not have occurred. -​ So…NOT ONLY must the claimant show that the conduct was below par, she must ALSO show that she would have prevailed in the matter had the conduct not occurred Types of behavior that can ultimately lead to a claim Examples of Ignoring conflicts of interest ​ Not communicating with your client ​ Doing business with a client 11  ​ Practicing outside your area of expertise ​ Expanding the firm too fast ​ Settling a matter without client consent ​ Representing yourself in a malpractice claim A lawyer’s fiduciary duty: Restatement 49, Comment b: To clients: ALWAYS A DUTY, including safeguarding confidential information and property, avoiding conflicts of interest, adequately informing the client, listening to client, not taking advantage of client. Restatement 48, Comment d: To 3rd parties: SOMETIMES A DUTY, including intended beneficiary like heirs to will. In a breach of fiduciary duty claim, plaintiff must overcome the “but for” test Malpractice Insurance: Insurance companies sell this insurance to lawyers and firms, but they also regulate the lawyers they insure. Make sure it’s updated, usually has high deductibles, not all issues are covered (included acts-fraud, orders of restitution of legal fees, punitive damages, acting in a non-lawyer role, intra-firm fighting. They might require a firm that it insures to adopt a system to evaluate potential conflicts of interest or may insist that senior partners review all opinion letters that the firm sends to its clients. Can a lawyer be disciplined for advising a client about proposed conduct that may be criminal or fraudulent? 12 Lawyer-Client Relationship A.​ Forming the lawyer-client relationship -​ Initial meeting: explain confidential nature of lawyer-client relationship, basis of fee, and check for conflicts before allowing prospective client to reveal confidential info 1.​ Lawyers are entitled to discretion in selection of clients. -​ Can agree/decline to represent based on alignment with the client’s goal(s) of the representation, the lawyer’s interests and aspirations, or whether they feel the client is being honest with them. -​ If no time, expertise, interest, OR ability to do necessary study, must turn down requests for legal aid. -​ Investigating prospective clients is permitted (and sometimes necessary to verify info (e.g., via internet searches, public records, or social media profiles), since Rule 3.1 prevents a lawyer from instituting litigation unless the claim has a supportable basis in law and fact. -​ Limits on discretion: 1.​ Should do some pro bono work; Rule 6.1 says lawyers should aspire to provide at least 50 hours per year of pro bono representation. a.​ Rule 6.1c.1 mentions desirability of representing unpopular clients (e.g.,Defense of Marriage Act / King & Spalding) b.​ Rule 6.2 directs lawyers to accept court assignments to represent indigent criminal defendants even if the court does not have the resources to pay the lawyer for their work. c.​ Rule 1.2(b) : lawyer’s representation of the client does not constitute an endorsement of the client’s political, economic, social or moral views or activities (e.g., Defense of Marriage Act above) 2.​ May not agree to represent a client if the assistance sought would involve the lawyer in a violation of law or the ethics rules (Rules 1.2 and 1.16) a.​ A lawyer cannot counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. b.​ If a client insists on advice or action that would constitute assistance with criminal or fraudulent acts, or is a violation of the ethics code, the lawyer must withdraw from representation. 3.​ May not reject clients for discriminatory reasons: Rule 8.4(g) prohibits lawyers from discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law. 2.​ Offering advice as the basis for a lawyer-client relationship a.​ When a person seeks legal advice or legal services, and the lawyer receives confidences, gives legal advice or provides legal services, the lawyer may owe some professional duties to the other person. b.​ Agreement to pay not a necessary aspect of relationship; can become a client without signing a written agreement Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980) -​ Facts: P’s husband had an aneurysm; treatment meant to relieve pressure had risk of paralysis and doctors did not timely resolve the issue, leading to his permanent paralysis and inability to speak. P consulted with an attorney regarding her husband’s condition shortly after hospitalization. Miller took notes and asked questions during the meeting 45-1hr -​ Issue: whether a lawyer-client relationship existed? -​ Holding: Jury’s determination that lawyer-client relationship existed reasonable 13  -​ Reasoning: P went to D for legal advice, was told there wasn’t a case, and relied upon this advice in failing to pursue the claim for medical malpractice. D did not qualify legal opinion, urge P to seek a second opinion, or inform that he had no expertise in medical malpractice; but for D’s negligence, P would have been successful in prosecuting their claim. Rule: In a legal malpractice action, four elements must be shown: 1) that an attorney client relationship existed; 2) that the defendant acted negligently or in breach of contract; 3) that such acts were the proximate cause of plaintiffs’ damages; 4) that but for defendant’s conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim Rule 1.18: lawyers have some duties to prospective clients; imposes duty to keep prospective clients’ confidences and duty to avoid certain conflicts of interest with the prospective client by representing persons with adverse interests -​ No duty to give competent advice to prospective clients and does not purport to impose malpractice liability if incompetent advice is given. B. Lawyers’ duties of competence, diligence, honesty and communication Competence Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation 1.​ Comment 1 & 5: an attorney might have experience and expertise yet still fail to provide competent representation if they do not undertake adequate fact investigation or are not sufficiently diligent, thorough and prepared. 2.​ Comment 2: Important skills in competent lawyering include analysis of precedent, evaluation of evidence, legal drafting, and issue spotting. 3.​ Comment 2: A lawyer can take on a matter in an unfamiliar field if the lawyer has the time and resources to get up to speed. -​ A lawyer can accept legal work requiring knowledge in an area in which the lawyer has no experience if they compensate for the inexperience through necessary study or association with another lawyer of established competence in the field of question. -​ Limits on self-study: subject to discipline if you bill a client for an unreasonable amount of time on research, especially if it doesn’t lead to progress in the matter. -​ Limits on association: rules articulate duties of supervision for senior lawyers but hold each lawyer responsible for own conduct regardless of level of experience; associates needing guidance should insist on genuine supervision. Competence in Criminal Cases -​ Clients seeking recourse against criminal defense attorneys can file an appeal urging the court to reverse the conviction bc client’s trial lawyer was incompetent -​ Claim: denied effective assistance of counsel as required by the Sixth Amendment; can be claimed in every state regardless of variation in state law or ethics rules -​ Many judges very reluctant to overturn on these claims; defendants unlikely to win appeal Strickland v. Washington, 466 U.S. 668 (1984) -​ Facts: D committed three murders and pled guilty/confessed against lawyer’s advice. D agreed to testify against a co-defendant, so no trial, just a hearing on whether he would receive the death penalty or life imprisonment. D’s lawyer had the opportunity to present mitigation evidence (e.g., psychiatric reports, testimony 14  of character witnesses) but did not, believing the judge would grant D a life sentence because he had expressed remorse. D was sentenced to death. -​ Holding: Conviction upheld; lawyer’s conduct was not unreasonable. -​ Reasoning: Lawyer relied on knowledge of judge’s reputation regarding remorseful defendants. By not including the psych reports, the lawyer prevented the prosecutor from introducing contrary evidence. Even assuming conduct was unreasonable, Defendant failed to show a more assiduous effort would have changed the result. The evidence not included (psych report and character witnesses) would have barely altered the sentencing profile presented. -​ Dissent: Court had provided no standard by which to assess whether lawyer had acted reasonably; in fact, lawyer here had not acted reasonably bc had never interviewed potential character witnesses. Requirement that prejudice be proven before a conviction could be reversed; when a lawyer acts incompetently, nearly impossible for the defendant to show that the result would have been different if they’d acted differently. Test: To constitute ineffective assistance of counsel under the Constitution, 1.​ A lawyer’s errors must be so serious that counsel was not functioning as the counsel guaranteed the defendant by that amendment and 2.​ The defendant must show that there is a reasonable probability that, but-for counsel’s unprofessional errors, the result of the proceeding would have been different. -​ In the five years after Strickland, only 4% of reported cases were reversed for ineffective assistance of counsel. -​ What does it take for a reversal? Examples have included: 1.​ Erroneous belief that records that would have demonstrated mitigation were not accessible under State law 2.​ A lawyer’s belief that discovery was “automatic” and did not need to request it. 3.​ Lawyer missed that a statute had been amended and would have allowed hiring of an expert 4.​ Lawyer misstated the law on attempted murder and the client relied on this advice decided to not take a plea bargain (to their detriment) 5.​ Failing to advise regarding the immigration consequences of certain legal actions -​ Padilla v. Kentucky 559 U.S. 356 (2010): Failure to provide accurate advice to noncitizens about the immigration consequences of possible conviction renders the representation ineffective for purposes of the Sixth Amendment (added element to Strickland doctrine for criminal cases in which the defendant is not a U.S. citizen). 6.​ Failure to advise a client of a plea offer -​ ABA practice standards for criminal defense lawyers*: -​ Seek to determine all relevant facts ASAP. -​ Keep client informed of case developments/progress and comply with reasonable requests for information -​ Inform accused of their rights at earliest opportunity and take all necessary actions to vindicate them (e.g., pretrial release, psychiatric evaluations, motions to suppress) -​ Investigate all facts relevant to the merits of the case and sentencing. -​ Duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty *Lapses in upholding these standards due in significant part by limited funds available 15  Missouri v. Frye, 566 U.S. 134 (2012) -​ Facts: D charged with driving while license revoked (felony). Prosecutor informed D’s lawyer in writing of a plea bargain, D’s lawyer never informed D of it. -​ Issue: whether a defendant may claim ineffective assistance based on advice (or lack thereof) that led to the rejection or lapse of a plea offer. -​ Holding: Case remanded bc D’s lawyer rendered ineffective assistance. -​ Reasoning: D’s lawyer allowed the offer to expire without advising D or allowing him to consider it and there was a reasonable probability that D would have accepted the agreement but-for counsel’s inaction. -​ Rule: Defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. -​ Constitutionalized the ethical duty of a defense lawyer under Rules 1.2 and 1.4 to communicate an offer of a plea bargain to a client. Lafler v. Cooper, 566 U.S. 156 (2012) -​ Facts: D shot a woman and was charged with assault with intent to murder. Prosecutor offered D’s lawyer a plea bargain. D’s lawyer incorrectly advised that he could be convicted of the charged offense, so D rejected the plea, went to trial, and was found guilty. -​ Holding: Lawyer’s conduct fell below the standard required by the Sixth Amendment. -​ Rule: A lawyer’s failure to provide effective assistance of counsel in relation to an offered plea bargain presents a basis for relief if the defendant can show prejudice and that, but for the ineffective advice, there is a reasonable probability that the plea offer would have been adhered to by the prosecutor and accepted by the court. Diligence Rule 1.3: A lawyer shall act with reasonable diligence and promptness in representing a client. 1.​ Comment 1: A lawyer should pursue a matter for a client despite opposition or personal inconvenience and take whatever measures are required to vindicate a client’s cause. The lawyer must act with zeal in advocacy upon the client’s behalf but is not bound to press for every advantage that might be realized. The rule does not require the use of offensive tactics or preclude a lawyer from treating all persons with courtesy and respect. 2.​ Comment 3: Perhaps no professional shortcoming is more widely resented than procrastination -​ Lawyers must do the work agreed to with care and without undue delay and are responsible for paying attention to all matters for which they accept responsibility by making agreements with clients or filing appearances with courts. -​ Model Code of Professional Responsibility stated that a lawyer should represent a client zealously within the bounds of the law, but the Model Rules dropped zeal from the text (used diligence instead) because of a concern that it encouraged overly zealous unethical behavior; still in the comments. -​ Opposite of diligent representation is total neglect of client cases (e.g., lawyers never filed the case, the statute of limitations passed, filed a case but allowed it to languish). Candor and communication Definitions: -​ Lying: intentional false statement -​ Deception: intentional statement or action that might mislead someone -​ Misinformation: false or inaccurate information (no intent to lie) 16  -​ Intent of speaker key. Examples include overselling yourself, not wanting to disappoint client, thinking you know what’s best for your client -​ Ethics rules tend to be more categorical in prohibition on lying than deceptions by withholding info, since an advocate’s role often requires withholding or presenting info selectively or in the best light Rule 3.3(a): lawyers cannot to lie to tribunals Rule 4.1: lawyers cannot lie to persons other than clients (third parties) Lying to clients Rule 8.4(c): prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 1.0(d): fraud defined as conduct that is fraudulent under the state’s substantive or procedural law. Rule 1.4: Communication with clients (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 by Rule 1.0(e) is required by these rules -​ Rule 1.0(e) Informed Consent: agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternative to the proposed course of conduct. (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; -​ A lawyer must notify a present client of an act or omission that would constitute malpractice and has prejudiced a client’s interest (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 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. 1.​ Comment 1: reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. 2.​ Comment 7: a lawyer may withhold a psychiatric diagnosis of a client when an examining psychiatrist indicates that disclosure would harm the client, but does not expressly address whether the lawyer may lie about the diagnosis if the client directly asks. 3.​ Comment 7: A lawyer may not withhold information to serve the lawyer's own interest TL;DR: 1.​ Communicate with the client on things that require their input 2.​ Explain things to your client 3.​ Update your client 4.​ Answer your client’s phone calls 17  -​ Civil liability for dishonesty to clients -​ Breach of fiduciary duty (loyalty/conflicts of interest, trust, honesty) -​ Breach of fiduciary duty: lawyer’s failure to act consistently with the trust that a client reposes in a lawyer because the lawyer has special skills and knowledge. -​ Restatement § 16(3): To fulfill fiduciary duties, a lawyer must comply with obligations concerning the client’s confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client. -​ Certain procedural advantages when added to malpractice suit (e.g., longer SOL, shift in burdens of proof, recovery of legal fees, punitive damages) -​ Malpractice -​ Rule 1.8(h)(1): a lawyer is barred from making an agreement prospectively limiting the lawyer’s liability for malpractice unless the client is independently represented in making the agreement. -​ Bar Complaint and/or discipline 5.​ Candor in counseling Rule 2.1 In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to a client’s situation. 1.​ Comment 1: legal advice often involves unpleasant facts and alternatives; a lawyer should not be deterred by the prospect that the advice will be unpalatable to the client. 2.​ Comment 2: it is proper for a lawyer to refer to relevant moral and ethical considerations -​ The rule and Comment 2 distinguish between a lawyer's obligation to render candid advice and the permission to confer on the lawyer to refer to nonlegal considerations when providing legal counsel. -​ Lawyer as Gatekeeper: withholding essential services that prevent clients or others from violating the law in response to legal and reputational threats TL;DR: 1.​ Communicate the bad facts 2.​ The client is not always right 3.​ Provide candid and competent advice 6. Duties Imposed by Contract -​ Lawyers may undertake contractual duties to their clients that set more demanding standards of performance than required by the rules -​ Rule 1.4: requires reasonable communication but client can demand regular communication -​ Rule 1.5: requires reasonable fees preferably in writing, but the lawyer can agree by contract to provide detailed billing statements on a specified schedule. -​ A lawyer may not agree to a higher contractual standard if the duty might cause the lawyer to violate another ethical rule. -​ A lawyer cannot waive the duty of competent representation, or limit liability for malpractice without the client being independently represented. 18  -​ Collaborative law practice: collaborative system in which each client has own lawyer but all agree to work in a problem-solving non adversarial mode in which each party takes account of the interests of others and works to avoid damage to family relationships -​ Still controversial, bc allows either party to direct that the other party’s lawyer be removed from the matter, which would interfere with client’s choice of counsel. Agreements limiting scope of representation Rule 1.2(c): A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. -​ Comment 6: a lawyer can legitimately offer limited service to a client to exclude actions that the client thinks are too costly -​ Comment 7: the limitations must be reasonable under the circumstances (reasonableness evaluated based on knowledge, skill, thoroughness, etc.) Rule 6.5: allows a lawyer providing short-term services such as advice or form completion under the auspices of a program sponsored by a non-profit organization or court to do so without having to perform an extensive check for conflicts of interest with other clients. Rule 1.7, Comment 8: lawyers should evaluate conflicts to consider the likelihood that a difference in interests will eventuate, and if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. The lawyer may limit what she agrees to do but must provide disinterested advice if the lawyer believes that the client needs a service the lawyer has not agreed to provide. C. Lawyers’ responsibilities as agents -​ Clients are bound by what the lawyer does or fails to do, regardless of the client’s own actions or culpability -​ Basic agency law: the client (principal) makes all the decisions, but in reality the attorney acts with certain express or implied authority 1.​ Express and implied authority (kinds of actual authority): -​ Express: explicit authority to act on a client’s behalf (e.g., telling them to sign a contract or settle a litigation) -​ Implied: general instruction that allows the lawyer to take certain actions on the client’s behalf (i.e., to take action that is reasonable and calculated to advance the client’s interests). -​ Certain actions may not be valid unless the lawyer has express not implied authority (e.g., power to settle in certain jurisdictions). 2.​ Apparent authority: when a client tells a third party that the client’s lawyer has the authority to do something, the third party may rely on the lawyer’s subsequent actions even if the client did not actually authorize those actions. -​ Also found if a principal puts an agent in a position that causes a third person to reasonably believe that the principal had given the agent express authority -​ Lawyer’s statement to the third party that is authorized to act is NOT apparent authority; only acts or statements of a client or another principal can justify third party reliance. 3.​ Authority to settle litigation: most states say mere representation does not provide implied or apparent authority to allow the lawyer to settle. -​ Rule 1.2 Comment 2: Clients normally defer to the lawyer’s special knowledge, skill, understanding of technical, legal, and tactical matters 19  -​ Lawyers usually defer to clients with respect to questions such as the expense to be incurred and concern for third persons who might be adversely affected. -​ Restatement: Except for decisions reserved for clients and in the absence of an agreement on these matters, a lawyer may take “any lawful measure within the scope of representation that is reasonably calculated to advance a client’s objective.” Rule 1.2 highlights: -​ A lawyer shall abide by a client’s decisions concerning the objectives of the representation -​ A lawyer shall consult with the client as to the means by which the objectives 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 to settle a matter -​ In a criminal matter, a lawyer shall abide by the client’s decision as to what plea to enter, whether to waive jury trial and whether the client will testify. Competent adult client 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 decisions, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. -​ Once consulted and advised, client has the right to make decision regarding the objectives of the representation and the explicit right to make four decisions: -​ In civil case: whether to settle or go to trial -​ In criminal cases: decide on plea entered, whether to waive a jury trial, whether to 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 a client to make a good faith effort to determine the validity, scope, meaning or application of the law. -​ Comment 2: clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters. Lawyers usually defer to clients with respect to “questions such as the expense to be incurred and concern for third persons who might be adversely affected. Restatement §21, comment e: except for decisions reserved for clients and in the absence of an agreement on these matters, a lawyer may take “any lawful measure within the scope of representation that is reasonably calculated to advance a client’s objective.” -​ Unless agreed to otherwise, the lawyer should make decisions that “involve technical legal and strategic considerations difficult for a client to assess.” 20 Jones v. Barnes, 463 U.S. 745 (1983) -​ Facts: Barnes was convicted of robbery and assault. Attorney Michael Melinger was assigned to represent Barnes on his appeal. Barnes asked Melinger to raise a number of issues on appeal, but Melinger concentrated on three of the issues, and rejected two others requested by Barnes. Barnes submitted a pro se brief presenting the three issues plus the other two issues rejected by Melinger to the appellate court. The appellate court affirmed Barnes’ conviction. After a number of post-conviction relief remedies proved unsuccessful, Barnes filed a writ of habeas corpus in federal district court against Jones, superintendent of the Great Meadow Correctional Facility where Barnes was incarcerated. Barnes alleged that Melinger’s failure to assert all the non-frivolous arguments Barnes had requested was a denial of his Sixth Amendment right to the effective assistance of counsel -​ Issue: Is an attorney assigned to represent a criminal defendant on appeal under a duty to raise every non-frivolous issue? -​ Holding: An indigent defendant has no “right to compel appointed counsel to press nonfrivolous points [he] requested.” -​ Reasoning: A court-created rule that the client, not the trained attorney, is in control of which legal issues are to be presented undermines the purpose of having legal counsel. That is, utilizing the attorney’s training, experience, and professional judgment to present the legal issues he believes are most important. Most cases usually present three significant issues. If a defendant is unable to be successful on a few issues, he likely is not going to be successful by raising even more issues. The effect of adding weak arguments will be to dilute the force of the stronger ones. Therefore, one of the largest benefits of having legal counsel is for him to pick out the most important issues. -​ Dissent: criminal defendant for whom counsel is appointed is unique. The defendant bears the personal consequences of a conviction so they must be free personally to decide the arguments counsel puts forth. Clients with diminished capacity Rule 1.14 (a)​ When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b)​When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c)​ Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. -​ When assessing incapacity: remember Rule 2.1 (a lawyer shall exercise independent professional judgment and render candid advice…a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to a client's situation) -​ Options: not many good choices for a lawyer -​ Following client wishes may not be in their best interests 21  -​ Asking for a guardian appointment can deprive the client of certain freedoms -​ Asking for a guardian ad litem appointment may be better but expensive - who pays? -​ Juveniles: Rule 1.14 applies the same standards to minors as to adults with mental impairments; maintain as normal a relationship as possible -​ Rule 1.14 Comment 1: children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody -​ Norms governing specific proceedings involving juveniles: -​ Delinquency matters: similar to criminal proceedings -​ In most jx’s, the lawyer follows the guidance of the client, who are typically older children -​ Custody or similar proceedings - less adversarial; child may be younger -​ Fundamental question whether to advise based on the child’s best interests vs. child’s wishes? Either can be problematic -​ ABA advises following child’s articulated position -​ Guardian ad litem: separate person to represent the child’s best interests especially where conflict with child’s preferences. E. Terminating a lawyer-client relationship 1.​ Duties to the client -​ Rule 1.6 Comment 20: Must continue keeping confidences even after relationship has ended -​ Rule 1.16(d): Must return all papers and property to which the client is entitled and any unearned payments made. -​ Restatement §46: on request, a lawyer must allow a (former) client to inspect and copy any document possessed by the lawyer relating to the representation unless substantial grounds exist to refuse. -​ Restatement §46: Unless (former) client consents to non-delivery or substantial grounds exist for refusing to make delivery, a lawyer must deliver at an appropriate time and in any event promptly after the representation ends, such originals and copies of other documents possessed by the lawyer relating to the representation as the client reasonably needs. -​ Restatement §46, Comment c: a lawyer may refuse to disclose certain law-firm documents reasonably intended only for internal review; the lawyer’s duty to inform can require the lawyer to disclose matters discussed in a document even without disclosing the document. -​ ABA Ethics opinion 471: a client is not entitled to papers and property that the lawyer generated for the lawyers’ own purpose in working on the clients’ matter. -​ Restatement § 43, comment c: May keep documents as leverage if fee not been paid unless would unreasonably harm the client; -​ Most states allow lawyers to obtain broad retaining liens (lawyer may decline to return the client’s original documents if the client fails to pay the fee or the amount owed is disputed) 2.​ Rule 1.16: Firing the Client or Being Fired by the Client a.​ Must withdraw if continued representation would involve illegal or unethical conduct, 22  i.​ May withdraw if client already used services to commit a crime and continued representation would not result in new or continuing crime ii.​ May withdraw if client insists on action the lawyer finds repugnant b.​ Must withdraw if the lawyer becomes impaired (e.g., develops illness or loses such mental capacity that the representation would be materially impaired. c.​ Must withdraw if the client fires the lawyer, need not give a reason; court may refuse to permit substitution resulting in undue delays (exception for appointed criminal defense attorneys d.​ May withdraw when the lawyer wants to terminate i.​ Rule 1.16(b)(1): may withdraw if possible without material adverse effect on the interests of the client. e.​ Matters in litigation: if lawyer has filed suit on behalf of a client or entered an appearance, they generally cannot withdraw w/o permission from the court i.​ Rule 1.16(c): a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation ii.​ In civil cases, must obey court’s ruling even if forced thereby to violate ethics rule; the rules apparently allow a judge’s order to trump the mandatory withdrawal provisions f.​ May withdraw if client stops paying fee, but must first warn client that nonpayment will lead to withdrawal. g.​ May withdraw if case imposes unreasonable financial burden on the lawyer (e.g., matter turned out to be more complex than originally anticipated) h.​ May withdraw if the client makes continued legal representation unreasonably difficult (client will not cooperate) -​ (exception for appointed criminal defense attorneys) -​ A lawyer has the unfettered right to quit if it will not cause a “material adverse effect on the interests of the client” -​ Litigation - withdrawing requires Court approval -​ If a judge does not allow you to withdraw in a situation where continued representation would cause you to violate an ethical rule, you have to choose between contempt or discipline Collection of fees -​ Some courts allow lawyers to collect fees based on the reasonable value of the work done to that point. [The Problems: “The Washing Machine,” Problem 3-1; “A Desire to Investigate,” Problem 3- 2. Model Rule 1.4 and its Comments. The Problem: “Torture,” Problem 3-3. The Problems: “Vinyl Windows,” Problem 3-4; “The Foster Child,” Problem 3-5; “The Candid Notes,” Problem 3-6.] 23 Duty to Protect Client Confidences -​ Basic rule of client representation is that lawyers are obliged to keep their clients’ secrets A. Basic principle of confidentiality: expressed in ethical rules, agency law (requires agents to keep the confidences of their principals), and evidentiary rules (protect from being compelled to testify about confidential communications) 1. What is confidential? Rule 1.6(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). **Bright line rule barring almost all disclosure** -​ Comment 4: Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person, A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. Confidential Information: -​ Relating to the representation of a client=any information a lawyer learns in connection with a matter, regardless of source of information -​ All information relating to the matter on which the lawyer is representing the client, except information that is “generally known.” -​ Personal information to the client that the client would not want disclosed. -​ Information learned from the client, and information learned from interviews, documents, photographs, observation, or other sources. -​ Information relating to the representation acquired before the representation begins (e.g., prelim consultation) and after the representation terminates -​ Notes or memoranda the lawyer creates related to the matter -​ The fact that a lawyer is representing a particular client may be confidential (e.g., when they don’t want anyone to know they have consulted an attorney Policy of the rule: -​ Lawyers need to get accurate and complete information from clients to represent them well; if not bound to protect secrets, clients may be more reluctant to share them -​ Comment 2: The primary purpose of the confidentiality rule is to facilitate open communication between lawyers and clients -​ Fifth amendment right against self-incrimination - if a lawyer could reveal client confidences, would violate those protections Consequences of failing to protect confidences -​ Client may be harmed -​ Lawyer may be fired -​ Lawyer may be -​ Subject to professional discipline -​ Liable in tort or contract for negligent or intentional breach of duty -​ Disqualified from representation of one or more clients, or -​ Enjoined by a court from further revelation Informed consent and implied authorization -​ The client only waives protection of the rule if they consent to a lawyer’s revelation of confidences AND the lawyer has given the client full information about the potential risks (informed consent under Rule 1.0(e)) 24  -​ Informed consent always permits a lawyer to reveal confidential information -​ Should be in writing (not required but preferred) -​ Representing co-clients: Clients may agree to have no secrets from each other, or agree that each may tell the lawyer confidences that the lawyer will not share with the other. -​ Under the latter agreement, the lawyer may have to withdraw if learns something from one that could have adverse consequences for the other -​ If no agreement is reached, the Model rules encourage lawyers to seek an agreement from both that there will be no confidentiality as between them. -​ Implied authority: disclose information as part of representation (e.g., state facts in a complaint, present an argument in court) -​ Comment 5: implied authority except to the extent that the client's instructions or special circumstances limit that authority 2. Protection of information if there is a reasonable prospect of harm to client’s interest -​ Restatement (Third) § 60: confidential client information includes information relating to the representation of the client, other than information that is generally known -​ Revelation is prohibited only if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information. -​ Adverse effects: -​ Frustration of the client’s objectives in the representation; -​ Material misfortune, disadvantage, or other prejudice to the client; -​ Financial or physical harm to the client; or -​ Personal embarrassment to the client -​ A reasonable prospect of harm to a client depends on: -​ Whether a lawyer of reasonable caution, -​ Considering on the the client’s objectives, -​ Would regard use or disclosure in the circumstances, -​ As creating an unreasonable risk, -​ Of adverse effect -​ Either to those objectives or to other interests of the client -​ Comment c(i): disclosure also includes revealing information in a for that identifies the client or matter either expressly or through reasonably ascertainable inference. -​ Lower standard of secrecy than ethical rules. -​ TL;DR: don’t reveal identity, a reasonable prospect disclosure would not adversely affect material interests UNLESS told not to talk about it -​ Restatement probably closer to the actual professional norms than Rule 1.6 -​ Lawyers should resolve marginal cases in favor of nondisclosure. 5. Confidentiality and technology -​ Rule 1.1 Comment 8: use of technology carries both benefits and risks; substantial risk that such information is not secure enough to meet a lawyer’s duty of confidentiality -​ Unencrypted email communications, while ordinarily affording a reasonable expectation of privacy, may be surveilled if on a workplace device or system -​ Instruct the employee-client to avoid using workplace device or system for sensitive or substantive communications as soon as practicable. -​ Shred confidential documents, don’t just throw away (err on the side of caution) -​ Lawyers also have ethical obligations after an electronic data breach or cyber attack 25  -​ Steps to protect confidential info vulnerable to hacking: Encrypt cloud data, smartphone encryption not just PIN, whole disk encryption, forbid use of personal devices for work, strong passwords changed regularly, security audits, provide regular training, B. Exceptions to the duty to protect confidences Rule 1.6(b): A lawyer may (permissive) reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: -​ Comment 3: If the information relates to the representation of a client, the lawyer has a duty to protect the confidence, whether learned from a client or another source -​ Comment 16: A lawyer should try to persuade a client to take action that will obviate the need for disclosure. If the lawyer does reveal information, the disclosure should be as narrowly framed as possible and made only to people needing to know it Physical Harms (1)​ To prevent reasonably certain death or substantial bodily harm; -​ Comment 6: Reasonably certain if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action. -​ A lawyer is required to protect confidential information about past crimes. -​ Policy: promotes fair administration of justice by protecting the clint’s constitutional right to counsel and to not incriminate themselves. -​ A client who has committed a crime needs to tell the lawyer about the crime to get good legal advice -​ The lawyer cannot prevent harm by revealing bc in the past -​ Society benefits by clients having unobstructed access to counsel People v. Belge -​ Facts: Prosecutor charged Robert Garrow’s (serial killer) lawyers with violating a New York State statute requiring disclosure of a person’s death without receiving medical attention. -​ Issue: Whether Defendant was excused from reporting the location of the bodies by either the ethical duty of confidentiality or the attorney-client privilege. -​ Holding: Defendant constitutionally exempt from statutory requirement to disclose the location of the body; the attorney was not only equally exempt but under a positive duty of nondisclosure. -​ Reasoning: Confidential, privileged communication existed between the defendant and his client, which should excuse him from making full disclosure to the authorities. The effectiveness of counsel is only as great as the confidentiality of its client-attorney relationship. The constitution guarantees individuals the services of an attorney and the protection against incriminating themselves. Attorneys are bound to uphold that concept and maintain a sacred trust of confidentiality. The client-attorney privilege operates to fulfill the client’s fifth amendment right, derived from the constitution, and outweighs the compliance with the pseudo-criminal statute. -​ Holding on appeal: Court properly dismissed the indictment -​ Reasoning on appeal: The attorney-client privilege effectively shielded the defendant-attorney from his actions which would otherwise have violated the Public Health Law BUT the privilege is not all-encompassing. 26  -​ Rule/principle articulated on appeal: An attorney must protect his client’s interests, but also must observe basic human standards of decency, having due regard to the need that the legal system accord justice to the interests of society and its individual members. -​ A mere possibility of personal injury is insufficient; a lawyer’s belief regarding the degree and likelihood of possible harm (not the preventability of the harm by the client or by another person) is what matters -​ Comment 3: The exception recognizes the overriding value of life and physical integrity. -​ Reasonably certain if it will be suffered imminently or if there is a present and substantial threat that a person will suffer harm at a later date if the lawyer fails to take action to eliminate the threat -​ State ethics rule approaches 1.​ Broad discretion in the face of any future criminal act by a client: A lawyer may reveal confidences to prevent a client from committing a crime. 2.​ Narrower than previous MC or current MR language: A lawyer may reveal confidences to prevent a client from committing a crime likely to result in imminent death or substantial bodily harm 3.​ Impose affirmative duty to reveal info about threat of harm: A lawyer must (shall) reveal confidence necessary to prevent reasonably certain death or substantial harm (e.g. Illinois). 4.​ Tennessee Rule 1.6: A lawyer shall reveal information to the extent the lawyer reasonably believes disclosure is necessary to prevent reasonably certain death or substantial bodily harm Spaulding v. Zimmerman -​ Facts: Spaulding (P) was a passenger when John Zimmerman (D) crashed his car into a vehicle driven by Florian Ledermann (D2). P suffered severe injuries as a result. P’s father filed suit against Ds on P’s behalf. Prior to trial, P was examined by a physician hired by Ds, who found that P suffered from an aortic aneurysm, possibly resulting from the accident. A physician hired by P did not find the existence of the aneurysm and Ds did not inform P’s attorney of the aneurysm. The trial court approved a $6,500 settlement presented by the parties that did not reference the aneurysm as a possible injury. Two years later, P’s aneurysm was discovered when he had a physical checkup and underwent surgery to correct the condition. P filed suit against Ds for additional damages due to the more serious injuries and filed a motion to vacate the original settlement agreement, which the trial court granted. Ds appealed. -​ Issue: May a trial court vacate a settlement agreement when it is shown that a party possibly suffered injuries which were not revealed to the court at the time the settlement was approved? -​ Holding: Yes, a trial court may vacate a settlement agreement when it is shown that a party possibly suffered injuries which were not revealed to the court at the time the settlement was approved, even if fraud or bad faith is not involved. -​ Standard: to vacate a settlement agreement, there must be some concealment or knowledge by one party who will benefit from the other party acting upon a mistake. 27  -​ Reasoning: Ds possessed information pertaining to the aorta aneurysm (imminent danger of death/harm) that P did not possess at the time the settlement was presented to the trial court for approval. The settlement made did not contemplate or take into consideration the disability described. Defendants’ concealment of P’s aorta aneurysm would have resulted in an unconscionable advantage over P’s ignorance or mistake. The Ds counsel were not under an ethical or legal obligation to inform P or counsel, but because P was a minor, they had to make full disclosure to the court approving the settlement. -​ Rule: Attorney has a duty to make full disclosure to the court when applying for approval in minor settlement proceedings -​ Rule: Ethical and legal requirement for a lawyer to preserve client confidences except for an announced intention of a client to commit a crime. Financial Harms -​ A lawyer may reveal past, ongoing, or future criminal or fraudulent conduct IF (1) reasonable certainty that conduct will result in substantial financial or property injury, (2) the client is using or has used the lawyer’s services, AND (3) the purpose of revealing is to prevent the act (1.6(b)(2)) or prevent, mitigate, or rectify the harm resulting from the act(s) (1.6(b)(3)). -​ Policy: encourage frank communication between clients and lawyers, prevent harm to the public, and protect ‘the integrity of the profession” by allowing lawyers to blow the whistle if their own work is being used to commit crimes or frauds -​ Language was included in the Model Rules in the wake of the Enron scandal and is broader than the Sarbanes-Oxley Act. -​ Sarbanes-Oxley Act § 307: authorized the SEC to promulgate tough new disclosure rules for professionals, including lawyers, who practice before the Commission and who become aware of clients’ frauds -​ 17 C.F.R. § 205.3(d): Lawyers who practice before the Commission or who advise companies regulated by the commission to report any information about securities fraud to the highest officials of the corporation -​ 17 C.F.R § 205.3(d)(2): If the fraud is likely to harm investors the reporting lawyer may (but is not required to) report the matter to the SEC (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; -​ Comment 7: Revelation not required, but other rules bar the lawyer from counseling/assisting the conduct and may require the lawyer to withdraw if by continuing, the lawyer would be counseling/assisting the client in committing a crime or fraud. -​ Rule 1.2(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. -​ Rule 1.0(d): fraud defined as conduct that is fraudulent under the state’s substantive or procedural law -​ Applies to future plans to commit crimes/fraud and crimes/frauds in progress (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 28  commission of a crime or fraud in furtherance of which the client has used the lawyer’s services… -​ Applies to crimes/fraud already committed -​ Comment 8: Addresses the situation where the lawyer only learns of the client’s crime or fraud after the act, and the loss can be prevented, rectified or mitigated. -​ Does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense (entitled to full confidentiality bc no revelation of past criminal conduct). -​ Rule 1.2(d) and Rule 1.0(d) also apply (4)​ To secure legal advice about the lawyer’s compliance with these Rules; -​ Comment 9: Allows revelation of otherwise confidential information to the extent necessary to get legal advice on how to comply with the 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; -​ Comment 10: does not require the lawyer to await the commencement of an action or proceeding; the defense may be established by responding directly to a third party who has made such an assertion; may be allow