Rothman – Professional Responsibility – Spring 2017
What is a lawyer?
An advocate – one who fights for/represents the best interests of another; they are more skilled, learned or practiced in the matter than those who they represent
Outward and inward roles:
Outward role – representations to the public, the court
Inward role – offer direction and strategy to client
The Model Rules:
Rule 1.0 – The Definitions Section:
This is important to understand and cross reference
Comments exist after each (may cite comments on final exam)
Preamble sections may provide support and be cited on the exam
Preamble ¶20 – The violation of a rule itself does not create misconduct (a cause of action) à BUT it may be evidentiary of a cause of action
Informed Consent – 1.0 Definition Section (1.0(e))
Important principle; very detailed, nuanced
Requires not only explanation of what you’re considering, but also the benefits and harms that could result
What are the alternatives?
“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.”
Hypo: Boss gives memo assignment, and says it should take 2-3 hours. You spend 16 hours figuring it out and doing it. What do you bill?
Answer: Explain to partner that it will take way more than 2-3 hours, and ask what to do about billable hours. Firm should grant you the 16 hours per agreement with the firm.
If Boss wants to discount the time to the client, that’s his prerogative, but the firm should recognize the entirety of the hours billed
If Boss asks you to discount your hours, then he’s a slave driver violating the associate agreement within the firm
Related Hypo: The very next day, a different lawyer gives another assignment that takes 12 hours a day for 3 days. You’re exhausted from lack of sleep. Do you discount the time?
Answer: **First, ask how much time you should spend.
When people discount their time, they end up stealing to compensate à this is where trouble arises
Remember that you’re an associate – you’re cheaper than higher-ups
Communicate with the partner to apprise them of your situation
Sidenote about associates: As an associate, you are an individual attorney with your license at stake, who merely associates with a firm
Theft from client results in disbarment à Death Penalty
Billing for work you didn’t do it theft by deception
Zealous Advocacy: Putting your heart and creativity into a partisan position à doing everything you can as thoughtfully and creatively as you can, so that your team can succeed – Preamble ¶ 20, Rule 1.3, Comment 1
You may not sabotage the opposing team, however
Lawyers have a fiduciary duty to the client and they have an even higher fiduciary duty to the court
Ex. You must sell out client and offer evidence to the court, unsolicited, in the interest of justice (NJ only)
Levels of responsibility:
Rule 1.1 – Competence
Must be competent, at a minimum
“Zealous advocacy” is not a rule à it only exists in a comment
Most of the rules are geared towards limiting that zealous advocacy
Original rules developed by Cravath
Were rather exclusionary à only the wealthy class could become lawyers
After WWII, GIs could attend law school à the rules attempted to insulate the traditional lawyering class
Civil Rights Movement helped sculpt the rules as well
Rule 1.4 – Communication: Rothman’s most important rule
Often undervalued by lawyers, resulting in most ethical conflicts
Clients complain when they feel like they’re not being talked to
Internal Rule of Thumb: Get back to clients with ~60 minutes (but never give them your personal cell phone!)
Hypo: Florist slips and breaks wrist. She can’t work during the highest earning time of the year. She loses business because of the injury. She contacts Rothman to sue property manager, and Rothman refers her to Johnny. Johnny says,
“This will be about a $75K reward. I usually don’t take these cases.” However, Johnny says he will do it for a contingent fee of 33% after disbursements from reward/settlement. Florist does not speak English well.
Rule 1.4 may not apply yet
Rule 1.5 applies à Contingency agreements must be in writing
Rule 1.18 – you have duties to a prospective client
But you need not go around the table to help them negotiate a fee
Florist signs on with Johnny, and the case is commenced. The Defense won’t settle. Discovery lasts two years, and trial is looming. Johnny wants to settle. Florist won’t do well in front of a jury because English poorly, and they won’t like her. On the eve of the trial, the defense offers to settle for $50K. Johnny counter-offers $100K. Insurance company counters with $67K, final offer. Florist accepts the settlement of $67K. $67K check gets deposited in Johnny’s trust account.
Depositions cost $10K
Filing fees cost $1.5K
Experts cost $20K
Johnny gets 33% — $23K
Total: $54.5K taken out
Florist receives only $11K
This is half of what Johnny receives – Florist is mad
Rothman conclusion to this hypo: The rules do not go far enough.
Personal injuries lawyers don’t have repeat customers
They have contingent fee structures, but don’t explain disbursements à clients are misled by advertisements boasting large settlements, but those are unusual
Therefore, clients are disappointed
Rothman: Best way to practice here: Johnny can tell florist the harsh reality of reward costs after fees and disbursements à Be honest and drill home the fact that they will be disappointed with their take-home reward.
Advise them to settle without litigation
This will establish your reputation and may help you in the future
Law of Agency:
Hypo: Consignment shop: seller and owner negotiate terms of an item: a dresser
Rule 1.1 – Competence:
Duty of care to the client (Rule 1.1)
Ex. Cannot paint the dresser yellow
You have a duty of care to protect the client’s stuff – you are responsible for the treatment of the items by others
Duty of loyalty – duty against self-dealing
Rule 1.7(a)(2); Rule 8.4 (Catchall)
Duty of Communication: Rule 1.4
You are bound by the actions of agents
Rule 1.3 – Diligence – Expectation of promptness in representing a client
Rule 1.5 – Fee must be reasonable
Rule 1.6 – Confidentiality of Information
*Rule 1.2 – Scope of Representation and Allocation of Authority Between Client and Lawyer:
The lawyer and client must act as a single unit
Duty to disclose any and all settlement offers
Rule 1.2 and Rule 1.4 are integrally related
Callback to Dresser Hypo: Sell the dresser but don’t let Grandma find out is the goal. How do you do this?
Important to communicate all offers to client before continuing negotiation process
1.2(c) – Lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent
Ex. If you are representing someone for a corporate issue, and then the same client has a divorce
Does the client still believe that you are his lawyer?
Rothman: It is important to narrowly craft engagement agreements
Comment 6: Client may have limited objectives for representation and limited means
May exclude specific means that may be too costly or the lawyer regards as imprudent or repugnant
1.2(d) – May not counsel a client to engage in fraudulent or criminal activity, knowingly
But, he may discuss the legal consequences of a proposed course of conduct à make a good faith effort to determine validity à is activity fraudulent or not?
Hypo: Associate at a firm working a slip & fall case. Plaintiff keeps calling. Associate puts off the call. (Plaintiffs call often because they are not billed for it, because they are on a contingency). Finally, Associate takes the call and realizes the statute of limitations has expired, and he forgot to file the co
ll the cops?
Answer: The law allows you to protect the interests of your client. Should not call the cops, even if humanitarian causes compel you to. Calling the cops could result in a violation à Your duty is to be a lawyer.
Hypo: Man convicted of murder – life sentence. Layers tipped off that their client (different man) is the murderer. Lawyers go get confession from second man. They now have evidence that the first man is in prison wrongfully. 26 years go by, the confessor dies. Lawyers disclose info at this point. First man is released.
Answer: The death does not matter. Confidentiality extends forever à Their client gave permission to disclose after his death, however.
The lawyers properly kept the information confidential, since it pertained to their client
Hypo: Want to set a sympathetic view of client for a plea bargain. He says he has AIDS, but not to tell his girlfriend.
Recall: Rule 1.6(b) – may reveal information if lawyer believes reasonably necessary to prevent reasonably certain death or substantial bodily harm
Here, there is reasonable certainty of substantial bodily harm – AIDS – so can disclose.
Consistent with existing law
If word has meaning in one place, has the same meaning elsewhere too
Ex. “Reasonably certain” is in Rule 1.6(b)(1) à Reasonably certain of death and reasonably certain of substantial bodily harm
Rule 1.6(b)(6) – Disclosure allowed if lawyer reasonably believes necessary to 1.6(b)(6) comply with other law or court order
But, 1.6(b)(7) – do not need to disclose if attorney-client privilege
Communication between a client and attorney
Intended to be confidential
In the scope of that relationship
Agency – your secretary is included in the privilege, because she is an agent of the attorney
Upjohn case à Upjohn rule:
Most stats don’t follow Upjohn, but instead follow Samaritan case
If you are seeking advice, communication is privileged
If you are a decision-maker in the litigation, even if you don’t initiate communication, the communication is privileged
Communications extended by lawyer to a witness are not privileged
Email is privileged if you designate it so à BUT, you can’t CC: someone else
Hypo: Big, dirty guy gets public defender. He definitely is guilty, but the cops did a bad job. You decide to defend him because there is a “higher duty of justice”
Even if your client confesses, you can defend him because there is a higher duty of justice
Side note: What happens when your client confesses to you, but pleads guilty and takes the stand? (Rule 3.3)
Rule 1.6(b)(7) – Attorney-Client Privilege is respected
Rule 1.7 – Conflicts of Interest:
Hypo: Husband and wife hire you to draft a reciprocal will. If both die at the same time, estate goes to “fruit of my loins.” Husband was also involved in a secret paternity suit. He fathered a child outside of the marriage, and does not want the wife to know. Same firm was dealing with paternity suit. When writing the will, what does the firm do? Does firm have a duty to tell the wife about the husband’s affair and child?
Rule 1.4 – Duty to Disclose vs. Rule 1.6 – Duty of Confidentiality