Professional Responsibility Outline

Professional Responsibility Outline
Prof. Shore
Fall 2009
I. The Lawyer-Client Relationship. 2
a. Forming the Relationship (1.2a, c, 1.4, 1.5, 1.8, 1.15, 1.16, and 2.1 and comments). 2
b. Lawyer’s Duty of Competence. 3
ii. Criminal Cases:3
iii. Civil Cases:4
c. Lawyer’s Duty as an Agent and Fiduciary. 4
d. Lawyer’s Duty of Loyalty and Diligence. 5
e. Lawyer’s Duty to Inform and Advise; Autonomy of Lawyer and Client. 5
f. Terminating the Relationship. 7
g. MISC. C/L Rules. 7
II. Legal Fees. 8
a. Ethical Fee Amounts. 8
b. Contingent Fees: the essence of the contingent fee is that the lawyer’s right to receive compensation is contingent on the client’s receiving an award, either by settlement or judgment.8
c. Splitting Fees. 9
d. Non-cash payments and payment security. 10
III. Lawyer’s Duty of Confidentiality. 10
a. Criminal Cases:10
b. Civil Cases:11
IV. Conflicts of Interest. 12
a. Current Clients. 12
b. Former Clients. 14
c. Potential Clients. 15
V. Limitations on Litigation Tactics. 15
a. False/Misleading Evidence. 15
b. Boundaries of Ethical Arguments. 16
c. Ethical Tactics. 17
d. Trial Publicity:18
VI. Negotiation and Transactional Matters. 19
a. Duty of Candor to third parties:19
b. Ethical tactics. 19
VII. Entity Representation. 20
a. Conflicts of interest. 20
b. Confidentiality Issues with regard to criminal or fraudulent client conduct under the model rules:22
VIII. Marketing Legal Services. 24
a. Model rules 7.1 through 7.5 regulate information about legal services.24
b. Marketing on the internet: 7.2a: lawyers may advertise their services through electronic communications subject to restrictions of 7.1 and 7.3. 24

The Lawyer-Client Relationship

Forming the Relationship (1.2a, c, 1.4, 1.5, 1.8, 1.15, 1.16, and 2.1 and comments)

i. Choosing Clients: a lawyer is permitted to accept legal work that requires knowledge of an area of law in which he has no experience if the lawyer compensates for the inexperience through study or affiliation with another lawyer. See Rule 1.1 Comment 2. (Competency)
ii. Togstad v. Vesely, Otto, Miller & Keefe: lawyer was held to have a professional relationship with a client for purposes of malpractice liability although he declined to accept her case
1. The basis of finding a relationship in this case was that she sought legal advice and he gave it to her, even though there was no retainer.
2. The attorney in this case acted wrongfully because it he failed to do adequate research to find out if the case is good or not (contact an expert, the doctors, etc..), he should have referred her to other counsel, and informed her of the statute of limitations.
3. Malpractice action needs:
a. prove that an attorney client relationship existed
b. D acted negligently or in breach of contract
c. Such acts were the proximate cause of P’s damages
d. But for the D, the P would have been successful in the prosecution of their MM claim.
iii. Engagement and Non Engagement Agreements
1. Engagement agreements need to include:
a. Scope of representation
i. A lawyer may not enter into an agreement with the client prospectively limiting the lawyer’s liability for malpractice. See Rule 1.8(h).
1. Thus it would be unethical and contractually unenforceable for an engagement agreement to disclaim liability for malpractice.
2. However, a provision in an engagement agreement to submit fee disputes and malpractice claims to arbitration will not be treated as violating Model Rule 1.8(h).
ii. A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. See Rule 1.2(c)
b. Allocation of Authority between lawyer and client
i. Subject to certain limitations, 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. See Rule 1.2(a)
ii. Matters for the client to make:
1. Whether to settle a matter;
2. In criminal cases, the plea to be entered
3. Whether to waive jury trial and
4. Whether the client will testify
iii. Although clients are entitled to make decisions regarding the objectives of representation, lawyers have a duty to counsel their clients regarding these matters. See Rule 2.1
c. Communication: Rule 1.4
i. Lawyer shall promptly inform client of any decision with respect to which client’s informed consent is required,
ii. Consult with client about means to which objectives will be accomplished
d. Informed Consent
i. See rule 1.0(e), and comment 6
e. Termination: Rule 1.16:
i. a: A lawyer must not represent the client if it
1. will result in the violation of the rules (ex: conflict of interest)
2. lawyer is discharged
3. lawyer is mentally or physically unable to represent the client
ii. b: withdrawal
1. done without any material adverse effects on the interests of the client,
iii. After termination, need to protect client’s interest still, see Rule 1.16(d) and comments

Lawyer’s Duty of Competence

i. Model Rule 1.1: lawyer shall provide competent representation to client
1. Req. legal knowledge, skill, thoroughness, and preparation reasonably necessary
2. Specialized training not necessarily required
3. Recourse: none for the person wronged! Lawyer may be sanctioned by authorities
ii. Criminal Cases: Ineffective representation of counsel
1. First, the defendant must show that counsel’s performance fell below an objective standard of “reasonably effective assistance” (Strickland v. Washington – derived from 5th/6th/14th Amendments)
a. In making this judgment a court should consider all facts and circumstances, including prevailing norms of the profession.
b. However, the court is to be highly deferential and should engage in a strong presumption that counsel’s conduct was reasonable.
2. Second, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the constitution.
a. Prejudice was defined by the court to mean: that 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
3. While these standards are difficult to establish, they are not impossible, particularly in capital cases.
4. Chronic exception: In a few limited types of cases, the courts will presume that the defendant has suffered prejudice.
a. When defense counsel has an actual conflict of interest that affects representation, prejudice is presumed.
b. Prejudice is also presumed in cases when defense counsel fails to follow the defendant’s instruction to file an appeal.
c. Representation so deficient that the trial did not constitute a true adversarial proceeding.
d. Structural defect like the trial court erroneously deprived the defendant of the counsel of his choice
e. Not allowing defendant to testify
iii. Civil Liability:
1. Malpractice Liability -Civil liability for incompetence – plaintiff must show two things:
a. Attorney’s conduct was negligent (reasonable standard)
b. Outcome would be different but for negligence
2. In criminal cases: many courts have erected substantive and procedural hurdles to such lawsuits.
a. Coscia v. McKenna & Cuneo the California supreme court held that a criminal defendant must prove that he was actually innocent of the crime of which he was charged to recover against his lawyer for malpractice. Also must obtain reversal of his conviction or other post conviction relief to satisfy the requirement of innocence. And finally the defendant