Professional Responsibility N. Crystal Maymester 2013
Day 1
Lawyer as fiduciary
-contrast to arm’s length business relationship
Other fiduciaries
-doctor/patient
-priest/penitent
-trustee/beneficiary
-accountant/client
-created as a matter of fact-one person dependent on the other-person is aware of that
Fundamental obligations
-competency -ethical/professional
Multiple remedies: sued by client for negligence and subject to discipline by authority
-communication-rule 1.4-failing to keep client’s informed about the progress of their problem
-fairness- example: rule 1.5 obligation to charge reasonable legal fees
-confidentiality-rule 1.6 any information relating to representation of client (no matter where it came from)-not even allowed if it’s a manner of public record-might be okay if its public and widely known-unclear area with social media
-loyalty-rule 1.7(conflicts of interest)
-safekeeping of client’s property- detailed rules of record keeping(S.C.)
Lawyer as Officer of the Court Adversarial System
-neutral decision maker-biased juries/biased judges
-competent advocates zealously representing their clients-e-discovery problems
-fair rules of procedure for presentation of relevant evidence to decision maker
Rule 3.3(a)(3)-duty to reveal client perjury-(even though it’s a breach of confidentiality duty)
Rule 4.2-cannot directly communicate with adverse party without consent of their lawyer-but clients can communicate with each other
-it is permissible for lawyer to advise client to directly contact adverse client but can’t just use the client as an intermediary
In re Paulter-
Rule 8.4(c) general rule to not engage in dishonesty, fraud, misrepresentation
In S.C. could be seen as violation of oath.
Can apply to transactions outside of law-(selling property)
Rule 4.1-only applies to violations as a lawyer
Rule 4.3-communication with unrepresented person-lawyers need to make their interests clear
Lawyers dealing with a witness-must make it clear they do not represent the witness
Rule 1.6(b)(1)-can break duty of confidentiality to prevent imminent harm or death
Rule 8.4(a)-Improper for an attorney to do something indirectly (through acts of another) that they are not allowed to do directly
Institutional framework of Pautler(prosecution) and Judges(law paramount/integrity of the system)
Judges removed from the pressure of the situation
-exceptions to ethical rules can promote abuse
Lawyer disciplinary cases have clear and convincing evidence standard-quasi-criminal standard-harder burden than most civil cases which are preponderance of evidence
Pautler gives straight-forward answer
TWO SOURCES OF rules of governing lawyers
Professional rules and standards- rules of professional conduct
Rules of Law governing lawyers
Restatement of the Law Governing Lawyers
Rules of Professional Conduct
ABA Model Rules of Professional Conduct -2003 revisions
2012 and 2013-technology/globalization revisions
Lawyers have a duty to keep abreast of new technologies
S.C. has adopted most of the 2003 changes-but not the 2012-13 yet
ABA model code of judicial conduct-revised in 2007-like the model of professional conduct but for judges-15% of MPRE
S.C. uses 1990 code-very similar to ABA model
Ethics Advisory Opinions
-interpretations of rules
-persuasive not binding
-ABA committee on ethics and professional responsibility
-South Carolina Ethics Advisory Committee
Standards in Particular Practice Areas
-persuasive but not binding
-deal with specific problems in particular areas of practice
· Criminal defense and prosecution
· Civil litigation
· Matrimonial practice
· Trust and estate practice
· Guardians ad litem
Institutional Norms
-wide variety of institutions that practice law
-formal procedures or informal ways that particular organizations implement ethical requirements
The Duty to Supervise
Rule 5.1 and 5.3
Rule 5.1-responsibilities of partners or supervisory lawyers for conduct of other lawyers in firm
Rule 5.3- responsibilities of partners or supervisory lawyers for conduct of non-lawyers in firm
1) Reasonable Organizational Structure(Management Level)
Rule 5.1(a)-Partners in law firm must make reasonable efforts to ensure the firm has in effect measures that all lawyers conform to Rules of Professional Conduct
Rule 5.3(a)-same principles for non-lawyers “employed” with firm
2) Reasonable Supervision(Direct Supervisors)
Rule 5.1(b)-supervising attorneys must make reasonable efforts to ensure the lawyers under you are conforming
Rule 5.3(b)-applies to non-lawyers as well
Relationship between structure and supervision
-reasonable organizational structure to allow for supervision
3) Ethical Responsibility for Misconduct by Another Lawyer or Nonlawyer Assistant-there is no vicarious liability for disciplinary actions under Rule 5
-orders or with specific knowledge ratifies conduct Rule 5.1(c)(1);Rule 5.3(c)(1)
-knows of conduct when its consequences can be avoided or mitigated but fails to take reasonable remedial action Rule 5.1(c)(2); Rule 5.3(c)(2)
There is vicarious civil liability.
If a subordinate engages in misconduct, the firm has civil liability but
There may not be disciplinary action unless the attorney has failed one of the Rule 5 duties.
Law Governing Lawyers
Court decisions, which sometimes rely on rules of professional conduct
-disciplinary
-malpractice
-disqualification
-sanctions Rule 11
-criminal prosecutions
Statutory Law-(not a lot of this in S.C.) varies by state
Administrative Rules and Regs eg. SOX
Restatement of Law Governing Lawyers-
Relationships between Professional Rules and the Standards and the Law Governing Lawyers
-sometimes law overrides professional standards-statutory laws
-sometimes law deals with issues not covered by professional rules
-sometimes supplement rules or standards
-often deal with remedies rather than standards
Withdrawal Rule 1.16
Mandatory
erts for the original case testifying that you would have been successful in original case
-Judgmental Immunity-if attorney’s best judgment is wrong, lawyer can’t be held liable for poor decision that is made in good faith with due care
relationship between ethics rules and breach of the duty of care
-an expert can use ethic rules to help determine breach but there is no malpractice per se
Limited engagement agreements
-can only be accused of malpractice for what you agree to undertake
An agreement will say what the engagement of the lawyer is limited to
Certain types:
– a limited engagement can allow a firm to not engage in conflict of interest by limiting representation to a limited aspect of the matter
-divorce lawyers-limit themselves to not handle the tax issues-advise client to seek out tax lawyer
-often there are several cases that arise out of one occurrence-different engagement agreements for different claims-because there is different fee systems etc for each cause of action
-limited engagement agreements should specify what aspects are being undertaken
Rule 1.8-very important rule for MPRE
Many different types of conflict of interest
Rule 1.8(h)(1)-lawyer may not make an agreement that prospectively limits the attorney’s liability; unless the client is independently represented in that agreement
-but cannot be in the standard agreement
-but you can indirectly protect yourself by simply limiting your engagement
Rule 1.8(h)(2)- a lawyer can settle with a client for a former malpractice as long as the client is given in writing admitting to the malpractice, the amount lost and the client’s right to seek independent counsel in the matter
Examples of language for Limited Engagements
-“this engagement is limited to the following matter(identify the specific
matter)”
-if you don’t state that you are only engaged for trial, then you may be on the hook for the appeal
Fees Expenses and Client Property
Rule 1.5(a)-reasonable fees
Methods of Judicial Control
-discipline
-determination of reasonableness in proceeding
-statutory fee awards
In many cases, the court must determine this
Rule 1.5(a)-8 factors
S.C. uses 6 factors (3 important)
Federal Court-12 factors
Lodestar Amount-number of lawyers, hours and rates-then adjust the fees by the factors
-difficulty of the case
-time pressure
-contingency
Then the court determines 2xlodestar or 3x lodestar…discretion of judge, seldom overturned on appeal
