Legal Profession Outline
Lawyer owes responsibility/duty to:
– Clients (primary)
o Duty of confidentiality (see below)
o Duty of competence
§ MR 1.1- Lawyer shall provide competent representation to client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
§ Look at complexity of issue, lawyer’s general experience, lawyers training in the field in question.
§ Lawyer need not have special training in a particular area
§ Lawyer must not accept case if he cannot obtain the necessary competence through reasonable preparation
o Duty of diligence
§ MR 1.3- Lawyer shall act with reasonable diligence and promptness in representing a client.
§ Unreasonable delay can affect case and annoy client
o Avoid conflicts of interests (see below)
o Communicate with client (see below)
– Duty of Candor to the Court (this protects the public’s interest)
– Duty to adversary (not to lie, etc.)
– Duty to the public (not to commit fraud)
Types of Discipline
– Private reprimand (lightest)
– Public reprimand
– Disbarment (heaviest)
Duty of Confidentiality
– Must be professional relationship
– Three types/prongs
o Ethical Duty (MR 1.6, 1.18)
§ MR 1.6
· 1.6(a)- Lawyer shall not reveal info relating to representation of client UNLESS (1) client gives informed consent, or (2) disclosure is impliedly authorized in order to carry out representation or (3) disclosure is permitted by 1.6(b)
· 1.6(b)- Lawyer may reveal info relating to representation of client to the extent the lawyer reasonably believes necessary
o To prevent reasonably certain death or substantial bodily harm
o To prevent the client from committing crime or fraud reasonably certain to result in substantial injury to financial interests or property of another
§ 1.2(d)- When lawyer discovers criminal or fraudulent action of client, he must withdraw from the case AND disaffirm any documents or opinion (noisy withdrawl)
o To prevent, mitigate or rectify substantial injury to financial interests or property of another
o To secure legal advice about the lawyer’s compliance with these Rules
o To establish claim or defense in controversy between lawyer and client (to collect lawyer’s fee, etc.)
o To comply with other law or court order
· Cannot reveal past crimes, just current one
· Ethical confidentiality not waived if client tells others; only way to reveal through the rule’s requirements
· Rule against disclosure promotes full and frank communication
§ Can disclose info to associates if client knows about this and agrees OR it is included in the representation agreement
§ MR 1.18
· 1.18(b)- Lawyer who has discussions with prospective client shall not use or reveal information learned in the consultation.
§ Prohibition against revealing information extends even to client’s identity. Cannot reveal information that would let a third party be able to identify a potential client
§ Can be prospective attorney-client relationship even if no money exchanges hands.
o Attorney-Client Privilege (MR 1.13(f), MR 4.3, MR 4.2)
§ Protects communication between client and attorney
· Protects statements the client gives to the attorney for legal advice; protects statements of attorney to client as well
· Ordinarily does not protect identity
o Exception- MR 1.6: cannot reveal any information that would lead to identifying the client.
· Crime-Fraud: no privilege if the communication is about committing a crime or fraud. Person wanting the communication would have to show a reasonable basis for believing the communication was about committing a crime or fraud.
· Waiver: no privilege if the client waives the privilege
o If the client talks about the info, then the privilege is waived; if there are unneeded people in the room when the info is given, then the privilege is waived
§ Only protects communication, not the underlying facts
§ Types of tests for corporate communication
· Upjohn: lower level corporate workers statements is privileged if the statements concern matters within the scope of the employee’s corporate duties
o Applies to fed court only
· IL control group test: only employees who are in management can make privileged statements
o Problem is who is management?
· Arizona (middle of the road test): only employees whose actions give rise to liability OR if an employee initiates communication to an attorney, actions are protected
· Restatement §73: communication is privileged if it is between a client and his attorney AND it concerns a legal matter of interest to the organization
§ MR 1.13(f)- Corporations as Clients. When lawyer dealing with a corporation’s constituent parts and the corporation’s interests are adverse to the constituent’s interests, the lawyer shall explain the identity of the client
· Makes sure that the constituent knows the lawyer does not represent them and as a result, the communication is not protected
§ MR 4.3- Unrepresented Persons. When representing a client and dealing with a person who is not represented themselves, the lawyer must not tell the person they are d
§ Never waived
§ Balancing test: look at…
· reasonableness of the precautions taken to prevent inadvertent disclosure
· amount of time it took the producing party to recognize its error
· scope of the production
· extent of the inadvertent disclosure
· overriding interest of fairness and justice
§ Representing Multiple Clients
· Applies to pending as well as impending litigation
· Common interest rule: Generally, communications between one common lawyer and multiple client is privileged
o One party by himself can’t waive the privilege
· Joint defense privilege: if each of two clients have own counsel but they work together, the information is privileged
· If two common interest clients later decide to go after each other, information no longer privileged
o Fiduciary Duty
§ Attorney is an Agent for the Client
· So some Agency rules apply to attorney-client relationship as well
§ Fiduciary duty to not reveal confidences arises when there is a potential attorney-client relationship (see MR 1.18(b) above)
· Breach of such duty can lead to a civil case (Perez case)
§ If attorney uses confidential information for his own gain, it is a breach of fiduciary duty (trust)
Scope of Representation/ Allocation of Authority
– Agreements concerning the scope of representation are acceptable and enforceable
– Generally, clients are held responsible for the mistakes of their attorney (Taylor case)
o If the attorney makes serious mistakes, then the client not held responsible though (Cotto case)
– Judicial Admissions= statements made in court by the lawyer that are established as true for the purposes of trial
– Vicarious Admissions= statements made by attorney out of court than can be used against the client but are not binding against them
o Prior statement must include an assertion of fact inconsistent with similar assertions in a subsequent trial.
o The inconsistency must be clear.
o Lawyer’s statements must be the equivalent of testimonial statements
o Some participatory role of the client must be evident.