PROFESSIONAL RESPONSIBILITY
CONNOR
SUMMER 2011
PART ONE: RULES OF PROFESSIONAL RESPONSIBILITY
I. Introduction
A. Sources of Law
i. American Bar Association (ABA)**
1. Derived code adopted by states
• Model Rules
• Some states choose to adopt the Model Code/Rules and/or their own rules
2. Restatement
• Written by the American Legal Institute (ALI)
• Derived code adopted by states as a supplement to the ABA (certain provisions)
3. Common law and statutory law that concern law practice **
4. Parochial court rules
• Rules that apply to the individual court(s)
B. Historical Progression
i. ABA circulated the Canons of Ethics
1. Aspirations rather than mandatory
ii. Model Code
1. Had mandatory disciplinary rules (DRs)
2. Also had ethical considerations (ECs)
iii. Model Rules
1. ALL mandatory rules (DRs)
2. Eliminated the ECs
II. The Attorney-Client Relationship
A. Formation and Termination
i. Formation
1. Two Conditionsà Reasonableness Test
1) Would a reasonable person in the client’s position believe that they retained the lawyer?
2) Would a reasonable person in the lawyer’s circumstances have believed that they were retained as the client’s lawyer?
à Objective Tests: Can find a relationship even if the attorney
subjectively does not believe there is one
ii. Cases
1. Togstad
• The client wins: the lawyer made a mistake by not communicating well
2. Perez
• Corporate Miranda Doctrine
– The entity representation rule requires lawyers to explain to constituents that the corporation itself is the entity, not individual officers, employees, or other people within the organization
• The company’s lawyers told the truck driver that they were his lawyer too
3. Quasi-Relationship
• When duties run from the lawyer to the client
iii. Duties/Professional Obligations (4Cs)
1. Competence
• Providing knowledgeable, skillful, thorough, & effective representation M.R. 1.1
2. Communication
• Informing the client of all facts the client would need to know in order to make informed decisions about the matter M.R. 1.4
• A duty of candor—a lawyer shall exercise independent professional judgment & render candid advice M.R. 2.1
3. Confidentiality
• Keeping absolutely secret all information learned in the course of representing the client, & not using this information in any way that would have an adverse effect on the client M.R. 1.6
• Statute of Limitations on confidentiality = FOREVER
4. Conflicts
• Refraining from representing other clients whose interests are opposed to the first client, & refraining from self-dealing M.R. 1.7, 1.8
iv. Termination
1. Mandatory Withdrawal/Termination (M.R. 1.16)—situations in which the lawyer MUST call it quits
• Fired
– If being used as a dilatory tactic (designed to delay the proceedings), then the court may not allow the client to fire counsel
– Lawyer still gets compensated for the work that is done
– Exceptions to getting the money
o Malpractice
o Fee became unreasonable
• Disability
– Puts pressure on an attorney
o E.g. attorney w/ bipolar disorder who allowed a few cases to lag & was sued for malpractice
• Violation
– Cannot engage in criminal or fraudulent activity
2. Permissive Withdrawal/Termination
• Can get out of the relationship for any reason as long as it does not adversely or materially affect the client
– Ex. If the client is engaged in immoral activity, albeit legal
• If pending litigation, might have to ask the judge if it is okay
– Inquiry is whether withdrawal will affect the client
3. TEST for whether relationship was terminatedà Reasonableness
• Would a reasonable person under the circumstances have believed the relationship was terminated?
4. “Hot Potato Rule”
• Representing a certain client will cause the lawyer to be conflicted out of a lot of work in the future
• CANNOT try to maximize wealth by prematurely getting rid of the client
B. Aspects of an Ongoing Relationship
i. Duty to Communicate
1. A lawyer has a duty to keep a client reasonably informed about the status of a matter, provide informati
he leeway to cut down on the gamesmanship that lawyers engage in/cutting down on bending of the rules
4. Anti-Contact Rule in Criminal Cases
• ABA has delegated to constitutional law the protections that are provided in these situations
• A lawyer may engage in otherwise forbidden ex parte contacts if the lawyer is authorized by law to do so
– Courts generally have permitted attorneys for law enforcement agencies to direct the use of informants to gather evidence from unindicted suspects
• Outside the scope of the 5A & 6A, the target of a criminal investigation in federal court can expect little in the way of protection from the anti-contact rule and the supervisory power of federal courts over the conduct of federal prosecutors
• McDade Amendment: an attorney for the federal government is subject to the rules of professional conduct governing lawyers in the state in which the lawyer’s activities occur
C. Attorney’s Fees and Transactions with Clients
i. Reasonableness of Fees
1. Basic Ruleà An attorney must charge a reasonable fee M.R. 1.5
• What is “reasonable” can vary under the circumstances
• Limits on what is reasonable can come from the Model Rules, judges, contracts
2. Contingency fees can be reasonable
3. Pro Bonoà Aspiration
4. ABA does not push for a lot of limits on fees b/c they want the profession to be lucrative
5. Factors under the reasonableness standard that go into the fee that a lawyer can charge: M.R. 1.5(a)
1) Nature of the matter
– The time & labor required, the novelty & difficulty of the questions involved, and the skills requisite to perform the legal service properly
2) Opportunity Costs
– The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer
