Professional Responsibility Outline
Chapter 1 Where Do Ethics Rules Come From?
Code of Ethics
Inherent Powers Doctrine
Ethics codes are instituted by the States. The Model Code was the first code regulating lawyers. It’s divided into Ethical Consideration and Disciplinary Rules and takes the form of 9 cannons. In 1983 the ABA came up with Model Rules which many state governments are now adopting. The Model Rules take a restatement format. The American Law Institute (ALI), produced a Restatement of the law governing lawyers.
Ethics 2000 Committee (E2K)-
How could we change the rule in our State?
We could lobby the ethics committee in our state, and they in turn could make recommendation to the State Supreme Court. Or,
We could write the Supreme ourselves.
The Client Lawyer Relationship
A relationship exists with potential, current and former clients. Although most client lawyer relationships are still formed with face to face meetings followed by a written or oral retainer agreement they can be formed in other ways too. Money need not change hands to create a client lawyer relationship but the fact of a payment is good evidence of such a relationship. Rule 1.8(f) states that a lawyer can accept money from a person to represent another. But the person that gives the money is not the client. Courts are alert to what a person claiming to be a client might reasonably have believed under the circumstances, especially if the client has given confidential information on the assumption that the layer is performing a legal service for the benefit of the client. In questions of possible confusion it’s the lawyers duty to clarify the relationship.
Lawyers are governed by rules not only when there is a client lawyer relationship but also where there is a professional relationship.
Chapter 2. Defining the Client Lawyer Relationship
B.
1. Competence MR 1.1
Elements of the Client-Lawyer Relationship
The Model Rules require lawyers to provide clients with “competent” representation, defined to require “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” A mistake does not necessarily equal incompetence. Even great lawyers can make errors of judgment.
2. Confidentiality MR 1.6 G28
Rule 1.6 states that a lawyer may not reveal information “relating to the representation unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation.
Under the model rules a lawyer “may” reveal info if the lawyer reasonably believes necessary to prevent “reasonably certain death or substantial bodily harm, to prevent the client from committing a crime or fraud and is reasonably certain to result to financial injury or property of another, or to prevent, mitigate or rectify substantial injury to the financial interests or property of another.” (Under NJ law you must disclose)
The lawyer also can reveal info to secure legal advice about his compliance to the rules, or to establish a claim or defense on behalf of the lawyer in a controversy between him and his client.
There is significant debate over whether clients should be told that all of their information will be kept confidential. Whether they should be given a Miranda type warranting does not seem to be the solution. A lawyer should probably stop a client as soon as he sees a problem (ethically, legally or morally) or before the representation begins give a general warning that there are exceptional circumstances. Or “I cannot be implicated in any criminal conduct.”
Privileged and Ethically Protected Information
G 28
Privilege protects communications between a lawyer and a client and denies courts the power to force the client or lawyer to reveal the communications. This is a law of evidence. Ethically protected information are secrets that may not be revealed under the Model Rules of Ethics but must be revealed to the Court if ordered to do so. Secrets are usually information given the lawyer by third parties or the client’s agent. The privilege, however, may be lost for any information the client gives the lawyer in the presence of third persons unless the client claims otherwise. (i.e. that this info is confidential)
All privileged information is ethically protected but not all ethically protected information is privileged.
Reasons for Confidentiality
G31
Assurance of confidentiality will encourage the client to trust his lawyer and be forthcoming with information the lawyer may need to represent him. This will allow the lawyer to do a better job. Also, lawyers should respect the client’s confidences because it is the right thing to do. The lawyer is in a position of power and the client is vulnerable.
Perez v. Kirk and Carrigan
Analysis under Model Rules
Under 1.
tate confidentially rules.
G34- Perez drives a truck for Coca Cola. Runs a stop sign and smashes into school bus causing the bus to plunge into water. 19 students die. Coca Cola’s lawyers tell Perez they are there to help him and that any information told will be kept confidential. Perez gave them his statement which was later turned over to D.A. on threat of subpoena. Perez is suing defendants for breach of fiduciary duty for good faith and fair dealing. His damages are based on a theory of emotional distress. Court held that defendant breached fiduciary duty either by wrongfully disclosing a privilege statement or by wrongfully representing that the unprivileged statement would be kept confidential. An agreement to form an attorney client relationship may be implied from the conduct of the parties. The relationship does not depend on upon payment of a fee, but may exist as result of rendering services gratuitously. They represented to Perez that they were going to help him. Defendants claim that privilege was lost because third parties were present at the time the statement was given. This doesn’t matter because the statement was taken on the understanding that it would be kept confidential. A committee formed by the ABA to study the Modal Rules and recommend Amendments.- Courts and Layers assume the inherent power of judicial rule making because they feel they are better equipped to regulate their own profession. This power derives from the Constitution. The doctrine is used in support for invalidating legislative efforts to make judicial rules. – The main source of rules governing the behavior of lawyers are articulated by the American Bar Association. The ABA is a private organization with no right to impose its rules on any one. In order for these codes to actually govern a lawyer’s behavior, some institute of government must adopt it. This authority is mostly within a States Supreme court power.
