Professional_Responsibility_Fall2010_Professor_Mouzon.docx
I. Where do “Ethics” Rules Come From?
a. Professionalism:
i. Requires intellectual training and use of complex judgments;
ii. Clients can’t evaluate quality of service, must trust those they consult (paternalistic);
iii. Trust presumes self-interest of practitioner to subordinate to client’s interest and public good;
iv. Self-regulation to achieve competence, fidelity to client, and overcoming self-interest.
b. Ramifications:
i. Professional discipline, including disbarment;
ii. Rule 11 sanctions under FRCP;
iii. Disqualification from representation;
iv. Lawsuits (civil liability, malpractice) to clients and third parties;
v. Criminal liability;
vi. Loss of fees;
vii. Bad publicity.
II. Defining the Attorney-Client Relationship
a. Is There a Client Here?
i. Not always clear!
ii. Key Terms:
1. A person
2. To an attorney
3. Legal services (question of definition)
4. Attorney fails to manifest lack of consent
5. Attorney knows person relied.
iii. Exchange of money not important.
iv. Not important that formation of relationship occurs between attorney and third party.
1. NOTE: Person paying is NOT the client à attorney owes no duty of confidentiality and has no duty to disclose.
b. Formation of Attorney-Client Relationship
i. Explicit Agreement
1. Retainer à Addresses nature of representation, fees, confidentiality, termination, arbitration, liability, etc.
ii. Implicit Agreement
1. Manifested through conducts, words, education, etc.
a. Person manifests to lawyer intent that lawyer provide legal services;
b. Lawyer fails to manifest lack of consent to do so; and,
c. Lawyer knows or reasonably should know that person reasonably relies on lawyer to provide services.
d. Note: Requires sophistication on behalf of attorney.
2. See MRPC for requirement that agreement be put in writing within reasonable time after implicit agreement formed.
c. What do Lawyers Owe Clients?
i. Bases for Attorney Client Relationship:
1. Fiduciary Duty
2. Agency
3. Attorney-Client Privilege
4. MRPC 1.6 (Confidentiality)
5. Attorney Work-Product Doctrine
ii. Competence à Low bar!
1. See MRPC 1.1
2. “Reasonable lawyer” standard reflected in constitution relative to criminal proceedings.
iii. Confidentiality
1. Perez v. Kirk & Carrigan
a. Summary à After Perez’s truck accident claimed the lives of 21 kids, Kirk & Carrigan (attorneys for Perez’s employer) questioned him, telling Perez they were his attorneys, too. Gave a confidential statement to attorneys with understanding that it was confidential. Attorneys then disseminated statement to the district attorney’s office the confidential statements he made to them, which resulted in Perez’s indictment for manslaughter.
b. Big Idea à A lawyer may breach his fiduciary duty to his client either by wrongfully disclosing a privileged statement or by disclosing an unprivileged statement after wrongfully representing that it would be kept confidential.
2. Privileged vs. Ethically Protected Information
a. Attorney-Client Privilege
i. Narrow privilege.
1. Communication between lawyer and client only.
a. Where legal advice of any kind is sought;
b.
Privileged Information
From a professional legal adviser in his capacity as such;
c.
Communications relating to that purpose;
d. Made in confidence;
e. By lawyer or client;
f. Instantly protected;
g. From disclosure by client or legal adviser;
h. Except where protection waived
2. Protects only communications made in confidence.
ii. Stronger; may be asserted to withstand subpoenas and court orders.
iii. Comes from Rules of Evidence.
iv. Survives forever.
v. May be waived by client.
b. Ethically Protected – MRPC 1.6
i. Very broad protection.
ii. “Information relating to representation.”
iii. Information need not have come from client.
iv. Weaker than A/C privilege; cannot overcome a court order.
v. Governs all aspects of representation; preventative.
vi. Comes from MRPC.
vii. Survives forever.
viii. May be waived by client.
ix. Same confidentiality duties whether client is biological person or entity.
3. Entity Clients
a. Control Group Test à Privilege applies to corporate managers guiding and integrating operations; those responsible for acting upon legal advice. These individuals can be said to have identity analogous to corporation as a whole; person is in direct control of operations
also parties in civil litigation if they can show adversary’s purpose in obtaining legal assistance was to commit crime or fraud.
iv. Pattern of stonewalling or discovery abuse may be enough to trigger this exception.
iv. Agency à Attorney is agent for principle with authority to act and speak for client on subject of representation. Lawyer’s conduct attributable to client even if lawyer acts negligently or willfully misbehaves
1. Taylor v. Illinois
a. Summary à Taylor received criminal conviction after court refused to allow him to call a critical witness who he contended could prove self-defense because his defense lawyer had failed to provide prosecutor with name of witness. Taylor appealed, arguing he should not be held responsible for his lawyer’s misconduct. SCOTUS said lawyer has (and must have) full authority to manage conduct of trial. Would be impractical to require client’s approval for every element of case.
b. Big Idea à Client must accept consequences of lawyer’s tactical decisions and is responsible for consequences thereof.
i. NOTE: Dissent (Brennan) said there are other remedies; not fair to punish client.
2. S.E.C. v. McNulty
a. Summary à Shanklin contended that willful failure of his attorney (Rucker) to file an answer to a complaint filed against him by SEC should not have been imputed to him and that default judgment should be vacated. Shanklin had failed to contact Rucker for over a year about filing an answer. Said Rucker’s conduct had been egregious, more than merely or grossly negligent. Second Circuit said Shanklin had made no showing of diligence that would warrant relieving him of default judgment; hadn’t done anything to prevent entry of default judgment.
Ethically
Protected
Information
