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Professional Responsibility
Rutgers University, Newark School of Law
Rothman, Andrew James

PROFESSIONAL RESPONSIBILITY ROTHMAN SPRING 2015

HOW DO YOU BILL YOUR TIME?

HYPO: You are a new associate at a big law firm. Superior asks you to do an assignment that he believes should take 4 hours. It takes you 14 hours. How much time do you bill?

RULE

Model Rule Body

IS THERE A CLIENT HERE? (pg 24)

· Attorney-client relationship is formed when:

1. A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; AND

2. The lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.

· Money need not change hands.

o BUT payment is pretty good evidence of a relationship.

· It is of no moment that lawyer and client do not get along, or that they disagree on strategy.

· Analytica, Inc. v. NPD Research, Inc. (pg 26): A company wanted to give an employee stock as a reward for good service. The company gave financial information to a law firm that the employee hired for tax advice on the transaction. When the firm later sued the company for antitrust violations, it was in a position to use the company’s own financial information against it. The firm was disqualified.

· Atty-client relationship can arise via a law firm’s website.

o Barton v. US District Ct: Lawyer who gives advice over the phone on a 900 telephone # (where the caller is charged a fee depending on the length of the call) forms a client-lawyer relationship with the caller.

· Certain situations conducive to misunderstanding expressly require that lawyers clarify a possible misinterpretation:

o RULE 1.13(f): Organization as a Client

o RULE 4.3: Dealing with Unrepresented Person

§ In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.

§ When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

§ The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

WHEN CAN ATTY-CLIENT RELATIONSHIP NOT BE FORMED? (pg 27)

· US v. Weinstein: District ct judge, on his own initiative, appointed counsel to represent 23 fugitive Ds who had been indicted under the selective service (draft) laws. The judge ordered the gov’t to produce the files of these Ds so that appointed counsel could determine whether motions might be made to dismiss the indictments. 2nd circuit told the judge to vacate his order, concluding that he had no power to create a client-lawyer relationship for a fugitive D. Any action taken by the lawyer “without the D’s knowledge or consent could not bind the fugitive D.”

· Cooper v. Salomon Bros, Inc.: An atty was denied compensation for work that benefitted the D where the D never requested the work and no atty-client relationship was shown.

· Lynch v. Deaconess Medical Center: Held that a hospital was not the client of a lawyer simply bc it benefitted from the atty’s work for a client of a lawyer simply bc it benefitted from the atty’s work for a client who owed the hospital money.

· People v. Gionis: Confiding about your legal probs to a friend who happens to be a lawyer will not by itself create an atty-client relationship.

WHAT DO LAWYERS OWE CLIENTS? (pg 28)

1. Competence

a. 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.

b. Some states are more specific: New Hampshire – at a minimum, lawyer should “gather sufficient facts, formulate the material issues raised, develop a strategy, in collaboration w the client and undertake actions in a timely and effective manner.”

c. How is the duty enforced: Typically need egregious error or a pattern of neglect.

2. Confidentiality

a. Perez v. Kirk & Carrigan: (conflict arising from the situation of corporate counsel)

i. Facts: Coke truck driver hits bus and kills children. Coke’s lawyers get his interview and then hand info over to DA for indictment. P sues for breach of fiduciary duty, negligent and intentional infliction of emotional distress, Texas Deceptive Trade Practices Act, conspiracy to violate the Texas Insurance Code.

ii. Rule: there can be an implied agreement of AC relationship, and here, you can imply AC relationship from lawyer’s actions (despite unnecessary third parties being present in the room) RULE 1.13(f) (Organization of Client); RULE 4.3 (P is unrepresented party)

b. Difference bt Privilege and Ethical Duties:

i. RULE 1.6: Confidentiality of Information

ii. RULE 1.8(b): Conflict of Interest, current clients: A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

iii. RULE 1.9(c): Duties to Former Clients: Can’t use info to the disadvantage of the former client, and can’t reveal info relating to the representation of the former client.

iv. Privilege: Communications bt privileged persons in confidence for the purpose of obtaining or providing legal assistance.

v. Work Product Immunity: Material prepared by a lawyer for a client in reasonable anticipation of litigation. (FRCP § 26(b)(3)).

c. Client Consent:

i. Privilege: Waiver (implied by disclosure to any non-privileged 3rd person).

ii. RULE 1.6(a): Confidentiality of Information: 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).

iii. RU

nsent” denotes the 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 alternatives to the proposed course of conduct.

o Case Law: When a person expresses desire for lawyer service and the lawyer fails to express he will represent.

· RULE 1.18: Duties to Prospective Client

o Obliges you to confidentiality for what you are told by a prospective client.

o Informed consent required in many circumstances.

§ NOT during the negotiation for initial agreement. Here, you are contracting parties and don’t owe a duty to each other.

o ROTHMAN THINKS rule to prospective client should be to have informed consent to client during arrangement negotiation – BEFORE signing agreement.

HYPO: Atty is a Japanese and English speaking partner at a big firm. Firm does work for a Japanese chemical company in Japan. Jap Chem company develops a product, creates an American company and manufactures in NJ. Chemist wants to leave and start his own company. Atty is wanted to represent bc they think a CT company is selling their product and infringed on their patent. (Suggest filing a complaint and not serve – that window of time is best to settle bc w no service, they don’t have to report to shareholders). Corporate attys translates to Japanese. Patent atty drafts complaint, gets translated, sends to Japan. He’s told if he needs info to call the jr chemist. Other side agrees to cease and desist. Chemist says OK. Patent atty writes a letter, no damage claim. Meanwhile, corporate atty is with the President of the company saying they will get a damage claim.

· RULE 1.6: Confidentiality of Information

· RULE 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer

o Didn’t talk to the right person

· When you think you can settle:

o FIRST get authority from the client (in writing)

o Client has the ultimate authority to settle (or in criminal, accept a plea)

o Otherwise its removal of client’s right to decide (bad)

· Lesson: Know who the client is!

· Now he wants you to write a memo about why it’s a good idea to settle (even though you already settled)

o BAD – falsehood

· MOST IMPORTANT – RULE 1.2 – Act on client’s behalf and choose means of result. Client has ultimate authority.

· RULE 1.4: Communications – REALLY communicate.

o Language barrier here, should have hired