Part One: The Client-Lawyer Relationship
I. Chapter 1: Where Do “Ethics” Rules Come From?
The Illinois court system is charged w/ coming up w/ rules for attorneys. We are a self-regulating profession and the courts have refused to let the legislature or the executive make ethics rules for us. Other states have statutes that govern lawyers or a common law that governs the behavior of an attorney.
– We regulate in two ways:
1. We refuse to license some…Matt Hail.
2. Kicking them out or disciplining them once they get in.
In 1908 the cannons of professional conduct were first created. They were updated in 1970 by the Model Code and again in 1983 by the Model rules of professional conduct. The Model rules are newer, but we still have to know the Model code. Illinois has adopted some version of the Model Rules of Professional Conduct, but many states have not, therefore the MPRE will still have questions about the Model Code.
Practice in Federal Court – You can be admitted to practice in federal court so long are you can practice in any state court. Usually the federal court will adopt the rules for the state they are in, but they don’t have to.
The concept of being a professional. A profession was a vocation or an occupation that requires special training that is mostly put to use for others in the earlier 1900’s. This doesn’t mean that doctors and attorney’s shouldn’t earn money. There is supposed to be a big difference b/w the concept of professionalism and business.
– Professional Civility: Members of the bar are supposed to treat each other and the courts they work in with a high level of respect. Opposing counsel is supposed to be treated as an honored opponent, not the enemy.
II. Chapter 2: Defining the Client-Lawyer Relationship
A. Is there a client-lawyer relationship?
a. Money need not change hands to create a client-lawyer relationship.
b. There should be an offer to represent or a request to represent and an acception.
c. Lawyers are held to a higher standard than the prospective client. If the client reasonably believes that they were consulting a lawyer. A client-lawyer relationship can be formed when a person calls an 800 number and asks for advice or when a prospective client comes in and you refuse to take their case.
d. You can leave yourself open to a malpractice claim if you don’t make it clear that you are not representing the client. Hofstead case.
Four possible indications that there is a client-lawyer relationship.
1. Money need not change hands
2. Payment is pretty good evidence of a professional undertaking
3. A lawyer mat be paid by one person to represent another, in which case the 2nd person, not the 1st, is the lawyer’s client.
4. A lawyer who gives legal advice on a 900 number (where the caller is charged a fee depending on the length of the call) forms a client-lawyer relationship.
End client-lawyer relationship – When the lawyer thinks the relationship has ended or needs to end, the lawyer needs to contact the client and inform her that he is no longer representing her and no longer considers her a client. (more on this later)
Scope – If the lawyer is representing the client w/ one legal problem, the lawyer does not have to represent the client in other unrelated legal problems. However, it is the lawyer’s duty to define the scope of the representation. Also, the client does not have to be a person, they could be a trade organization, corporation, etc.
– Scope of representation is laid out in Rule 1.2.
Ways a relationship CANNOT be created:
– Judges cannot appoint a lawyer to represent a fugitive, thereby creating a client-lawyer relationship.
– A client-lawyer relationship is not created simply b/c a lawyer does some work that benefits the client.
– Finally a client-lawyer relationship is not created when a person tells her legal problems to a friend that happens to be a lawyer.
B. Elements of the Client-Lawyer Relationship
i. Rule 1.1 – A Lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
ii. Illinois Rule has two more prongs: (b) A lawyer shall not represent a client in a legal matter in which the lawyer knows or reasonably should know that the lawyer is not competent to provide representation, w/o the association of another lawyer who is competent to provide such representation. (c) After accepting employment on behalf of a client, a lawyer shall not thereafter delegate to another lawyer not in the lawyer’s firm the responsibility for performing or completing that employment, w/o the client’s consent.
iii. Lawyers that hold themselves out as specialists will often be subject to a higher standard of care.
iv. A mistake does not necessary equal incompetence. In malpractice, the lawyer’s performance is weighed against the skills of other lawyers in the jurisdiction.
v. Cmt 1 factors measuring incompetence are:
– Relative complexity
– Specialized nature of the matter
– The lawyer’s general experience
– The lawyer’s training and experience in that field
– The preparation and study the lawyer does
– Whether the matter can be referred or consulted w/ an experienced lawyer
vi. In an em
“I know there’s a gun” – The first issue is whether the attorney can notify the police of a loaded gun in the back seat of a squad car. It is not a crime to put a gun in the seat of a car, and even if it is it is a past crime. It seems to me that it is likely to result in death or serious bodily injury if someone else finds the gun, so the attorney should be able to tip off the police station. However, my understanding of the law leads me to believe that her ethical obligation lies with her client and she probably cannot legally tip off the police. She will just have to hope that the car is searched some time soon and the gun is retrieved before it is found by a bad guy. The second issue is whether the lawyer can come forward with information that undoubtly proves that the other guy being prosecuted for the convenience store robbery is innocent. I think that ethically the attorney cannot come forward with the information because her client does not want her to and the information came out in a confidential conversation between the attorney and the client. She will just have to hope that the justice system works properly.
– “She’s Going to Kill Herself” – This also seems to fall under the likelihood of death or serious bodily injury. Suicide is illegal, therefore, the attorney could also report the information because the client would be committing a crime by killing themselves. You could get a counselor on the line and try to get the client to talk to them.
ii. Entity Clients – Rule 1.13 and its comment make clear that a lawyer has the same ethical duties under rule 1.6 whether the client is a biological person or an entity like a corporation, a labor union, the gov’t, or a partnership.
Control Group Test (rejected in Upjohn)
– Those in positions of control of the entity and who make decisions on actions of the entity have their conversation and communications with entity counsel deemed confidential. Other entity employees do not.
– Variation added by AZ appellate Court and overturned by AZ S. Ct. in Samaritan v. Goodfarb: Some non-control group employees covered if communications with counsel covered by Work Product Doctrine.