MR and TR
§ 1.0 – Terminology
o 1.0(e): Informed Consent: an agreement to a proposed course of conduct after the lawyer has communicated adequate info about the material risks and available alternatives
o 1.0(h): Reasonable: when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.
o 1.0(k): Screened: isolation of a lawyer from participation in a matter through the imposition of procedures intended to safeguard information that the isolated lawyer is obligated to protect under these Rules or other laws.
§ Applies to rules 1.11, 1.12, and 1.18 ( MR p. 21)
o 1.0(m): Tribunal
§ 1.1 – Competence: requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation
o COMMENT 3: In an emergency, a lawyer may give advice in a matter which the lawyer does not have the competence and skill ordinarily required under 1.1
§ 8.4 and 8.5
o 8.4 – Misconduct
§ COMMENT 2: When a lawyer is in involved in illegal conduct, he is professionally answerable only for offenses that indicate a lack of those characteristics relevant to the practice of law (e.g. offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice). When there is a pattern of repeated offenses, even minor ones, they can fall into this category.
· CN: you do not have to intend to violate a rule in order for it to be misconduct, you must only have done so in order to commit misconduct
§ TR 8.04: serious crime is defined as including barratry
· CN: Under the TR, you cannot intentionally mislead clients as to sanctions you have received (e.g. you cannot tell your clients that you are going on a 3 month vacation when you’ve actually been suspended for 3 months)
o 8.5 – (a) Disciplinary Authority and (b) Choice of Law
§ (a) Disciplinary Authority: a lawyer is subject to the disciplinary authority of the jurisdiction in which he is licensed. Additionally, you’re subject to disciplinary action in the jurisdiction in which the conduct occurred.
· CN: The norm is to be disciplined in the jurisdiction where you are licensed.
§ (b) Choice of Law:
· (1) the rules of the jurisdiction in which the court sits, and
· (2) the rules of the jurisdiction in which the conduct occurred or the jurisdiction where the predominant effect of the lawyers actions are felt
§ TX 8.05: if you solicit business in another state in a manner that violates the TX rules on solicitation of legal services, but try to avoid the TX rules by distributing the solicitation in another state, TX can still sanction you when you receive business in TX as a result of the solicitation.
§ 3 Representation Periods (make sure you make a proper analysis here on the exam)
§ 1.18: Duties to Prospective Clients
§ Advance Waiver: client’s agreement that anything said in the Prospective Client period will not be bound by the rules of confidentiality
· This does not apply to mandated rights (which includes all Ends decisions from the Ends/Means test in MR 1.2)
§ Engagement Letter: when you decide to accept a client, you have to send them an engagement letter stating the scope of your representation, your fees, etc.
§ 1.18, COMMENT 7: When a lawyer receives disqualifying info from a Perspective Client, that info is imputed (MR 1.10) to all members of his firm, UNLESS the lawyer obtains informed consent (MR 1.0), in writing, from both the affected client (the current client) and the prospective client.
§ Lawyer must be careful during the Pre-Representation Stage
· A lawyer can unintentionally take on a client if it is reasonable for the client to believe that you’re their lawyer.
· Togstad: lawyer didn’t tell perspective client of the SOL and was held liable.
§ You now owe the client all of the applicable duties in the rules
§ Money does not have to exchange hands in order for their to be a valid Attorney-Client Relationship
§ Always define the scope and duration of your duty to a Client
o Post Representation
§ 1.9: Duties to Former Clients
§ Look for lingering conflicts between Former clients and Prospective or Present Clients
§ IMPORTANT: Merely completing the work you agreed to perform for your client does not terminate your duty to the client. The client remains a Present Client until the lawyer takes affirmative steps towards terminating the relationship (e.g. This is your last bill, Follow-up letter stating their business together has concluded, etc)
§ 1.2: Scope of Representation AND Allocation of Authority b/w Client and Lawyer
o Ends/Means Tests:
§ This gives the attorney guidance on the aspects they can make decisions on
· Mandated Rights: right to settle, costs that will be incurred by the client, etc.
· Criminal Δs: right to a jury trial, to testify, and to enter a plea
· How those Ends will be accomplished
§ Preamble, COMMENT 20, p. 13 – The Rules are to provide guidance
o Violation of a rule does not give:
A. rise to a COA against the lawyer,
B. create a presumption that a legal duty has been breached, OR
C. warrant disqualification of the lawyer.
o The rules are designed to provide guidance to lawyers and to provide structure for regulating conduct. They are not a basis for civil liability
o COMMENT 15: Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.
o POINT: the Rules tend to set the standard of care Lawyers are expected to meet
§ HOW DO YOU DETERMINE NEGLIGENCE?
o Prudent Lawyer Standard: the degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in that jurisdiction.
§ MR 1.1: Competence: Competent representation requires the legal knowledge, skill, and thoroughness reasonably necessary for the representation.
o POINT: you do not have to be an expert in order to be Competent (UNLESS, you hold yourself out as an expert)
o Generally, in determining Competence, a lawyer is held to the Prudent Lawyer Standard.
o Fiduciaries: held to a higher standard due to the unique position of trust
§ If the lawyer breaches a duty as a fiduciary, resulting in a potential COA against themselves, they have a duty to inform the client of this (this also deals with MR 1.4 (Communication), which says that a client has a right to know all of their legal rights).
o EXCEPTION TO BEING COMPETENT: emergencies (COMMENT 3)
§ Sarbanes Oxley: if you have a client who breaches a federal law, you have to turn them into the SEC
o MR 1.6(b)(2 and 3): Updated – a lawyer may reveal otherwise confidential info in order to prevent the client from committing a crime which is reasonably certain to result in substantial financial injury to another
§ MR 1.3: Diligence: a lawyer shall act with reasonable diligence and promptness in representing a client
o COMMENT 2: a lawyer has a duty to not take on more work then they can competently handle
o COMMENT 5: you must have a backup plan to implement in the instance that you cannot complete your client’s work (because of death, disability, etc).
o After your representation has concluded, send up a follow-up letter ending your representation
§ MR 1.4: Communication (duty to inform and advise)
o If the attorney does not provide info to the client which he is required to provide (e.g. the terms of a settlement agreement before accepting the settlement), the lawyer may face disciplinary actions AND have to forfeit his fee
o COMMENT 7: A lawyer may be justified in delaying transmission of info when the client would be likely to react imprudently.
§ Ex: A lawyer might w/hold a psychiatric diagnosis of a client when the examining psychiatrist indicates disclosure would harm the client
§ A lawyer may not w/hold info to serve his own interest or the interest of another party
§ A court order under 3.4(c) may specify that the info is not to be disclosed to the client
§ MR 1.6: Confidentiality of Information
o 1.6(a): A lawyer shall not reveal info relating to the representation of a client UNLESS the client gives informed consent
o 1.6(b)(1): to prevent reasonably certain death or SBI;
o 1.6(b)(2) [2003 Update]: Crime – Fraud Exception: to prevent the client from committing a crime reasonably certain to result in substantial injury to the financial interest or property of another AND in furtherance of which the client has used the lawyer’s services
o 1.6(b)(3) [2003 Update]: Crime – Fraud Exception: to prevent, mitigate or rectify substantial injury to the financial interest or property of another that has resulted or is likely to result from the client’s commission of a crime in furtherance of which the client has used the lawyer’s services
o 1.6(b)(4): to secure legal advice about the lawyer’s compliance with the rules
o 1.6(b)(5): in a suit between the lawyer and the client
o 1.6(b)(6): to comply with other laws or a court order.
TR 1.05: similar to MR, but more extensive.
§ KEY DIFFERENCES BETWEEN MR AND TR:
· Under the MR exceptions for revealing confidential info, it says you may reveal the info. This does not require the attorney to reveal it
· Reasonably certain death or SBI:
§ Info reasonably certain to result in death or SBI does not have to pertain to a future act. It can be of a past act.
§ MR do not require that the act be criminal or fraudulent (therefore a lawyer could reveal that a person with AIDS is going around boning everyone).
§ Additionally, the rule says that the lawyer may reveal this info, but they are not required to reveal it.
§ A Lawyer shall revel confidential info if it is clearly established that the client is likely to commit a criminal or fraudulent act that is likely to result in death or SBI
· Therefore, the attorney is required to reveal the info if it is likely to result in death or SBI injury in the future from the commission o
MR 1.2 and 1.4 (TR 1.02 and 1.03)
o MR 1.2 Scope of Representation and Allocation of Authority
§ (a) The lawyer shall abide by the client’s decisions concerning the objectives of representation (i.e. ends) and consult with him as to the means (1.4(a)(2)).
§ (b) Lawyers representation doesn’t constitute an endorsement of the client’s views
§ (c) Lawyer may limit the objectives of representation if the client gives informed consent
· MR: the consent must be in writing
· TR: does not require the consent to be in writing
§ (d) Lawyer cannot counsel client in engaging in action Lawyer knows is a crime/fraud, but Lawyer may advise client of the consequences of the clients good faith legal actions
· Lawyer can not violate laws in order to comply with client’s wishes
o NOTE: distinguishing between ends and means is always easily definable and will likely require analysis on the exam
§ MR 1.14: Client with Diminished Capacity
o (a) when a client has a diminished capacity (minority, mental impairment, etc.), the lawyer should still attempt to maintain as normal of an attorney-client relationship as reasonably possible (i.e. don’t take advantage or treat them differently because of their handicap)
o (b) when the attorney believes that the client is at risk of harm and cannot adequately act in their own best interest, the lawyer may take reasonably necessary action (e.g. consulting with others, seeking appointment of a guardian for the individual, etc)
o (c) Information exchanged between the atty-client is protected by 1.6, BUT, when taking protective action pursuant to 1.14(b), the atty has the right to breach 1.6 to the extent reasonably necessary.
o COMMENTS 9 AND 10: Emergency Legal Assistance to an individual with Seriously Diminished Capacity: in such a situation, the atty can take actions on behalf of the individual, even though no atty-client relationship was previously established.
§ MR 2.1: Adviser: an atty shall exercise independent professional judgment and render candid advice. In rendering advice, an atty may refer not only to law, but to other consideration such as moral, economic, social and political factors, that may be relevant to the client’s situation.
o A atty’s may act as an Adviser to his client when asked to do so; but there is no duty to until then.
o COMMENT 1: a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable by the client.
o COMMENT 4: A lawyer can recommend consultation with a professional in another field when appropriate.
§ Therefore, you can refer a client to seek advice from a spiritual leader (priest, rabbi, etc.), an accountant, a psychiatrist, etc.
o COMMENT 5: a lawyer is not expected to give advice and act as an advisor until asked to do so by the client. However, when a client proposes a course of action which the atty knows is likely to result in substantial adverse legal consequences or litigation, the lawyer has a duty under MR 1.4 to offer advice (if the client’s course of action is related to the representation).
§ However, a lawyer ordinarily has no duty (i.e. they are not required) to initiate investigations into the client’s affairs or to give advice that the client has indicated is unwanted.
§ Ex: If a young client comes in and asks for an Estate Plan or Will, there is no duty to ask the client if they are contemplating suicide.
§ ABA OPINION 86-1815: when you notice a term missing from an agreement which both sides agreed to have in the agreement, you have an affirmative duty to notify the other side of the missing term.
§ ABA OPINION 92-368 and MR 4.4(b): when you get a correspondence from the opposing side (fax, email, letter, etc), which you know was mistakenly sent to you, you have an affirmative duty to not read it and to send it back.
Terminating the Relationship (MR 1.16, 1.17)
§ MR 1.16: Declining or Terminating Representation
o (a): a lawyer shall decline representation or withdrawal from representation if:
§ (1) representation will result in the violation of a MR or other law