Professional Responsibility – Harrison
Fall 2010
1. Lawyer’s Role to Client
a. Relationship stems from contract principles
b. Agent
i. Lawyer acts on behalf of client through express and implied powers thereby binding them
c. Fiduciary
i. Must place client’s interests above lawyer’s own
ii. Relationship based on trust and confidence
iii. Client depends on attorney’s knowledge and integrity
iv. Has a higher position over client because client has divulged confidential information to them
1. Makes client vulnerable to overreaching by lawyer
d. Duty of loyalty and diligence
i. Loyalty – required to pursue client’s unfettered objectives to the best of lawyer’s ability
1. Watch for divided loyalty, which may impede this ability
ii. Diligence – obligation to pursue client’s interests without undue delay
1. Act with dedication and zeal
2. Pursue matter to completion
3. Terminate relationship or clear any doubts as to whether relationship attorney-client relationship exists
e. Duty to render candid advice
f. Lawyer may give advice beyond the law- moral, economic, social or political advice when relevant
2. Communicating with Client – MR 1.4
a. MR1.4(a) Lawyer must:
i. promptly inform the client of any decision or circumstance the require the client’s informed consent;
ii. reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
iii. keep the client reasonably informed about the status of the matter;
iv. promptly comply with reasonable requests for information; AND
v. consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law – i.e. something illegal
b. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
c. Lawyer may delay or withhold information from client if client would react rashly
3. Admission to Practice – MR 8.1
a. Bar admission and disciplinary matters governed by MR 8.1
i. MR 8.1 An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
1. knowingly make a false statement of material fact; OR
2. fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, OR knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, these obligations do not apply to information protected by the duty of confidentiality – MR 1.6
ii. Admission to Practice – Character and Fitness test – Good Moral character
1. Applicants honesty and integrity are scrutinized
2. All aspects of an applicant’s past conduct are subject to review
1. Even unpaid parking tickets can be a reason to deny admittance
iii. No (US) citizenship or (state) residency requirement exists – unconstitutional
b. NY –Appellate Division has vested power to regulate practice of law and admittance to bar
c. Federal Court – must be independently entitled to practice before a federal court
i. No reciprocity exists in state courts – not automatic to be admitted to federal court
ii. Must be admitted to the federal bar
1. Must be introduced to the court by a current member of the federal bar
d. Pro Hoc Vice – admitted to temporarily practice in another state for a legal matter
i. Must have an association with the attorney you are partnered with
1. Limited number of times lawyer can use this
4. Professional Misconduct – MR 8.3, MR 5.2
a. Reporting Misconduct by Another Attorney
i. Legal profession is self-regulated
ii. Must maintain the public trust in legal system and attorneys themselves
iii. Lawyers are uniquely situated to detect misconduct b/c they deal with other attorneys directly
b. Reporting Professional Misconduct MR 8.3(a):
i. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority
1. Violations which MUST be reported:
1. Substantial question of attorney’s honesty, trustworthiness or fitness as lawyer
2. Known misconduct
i. “Know” – actual knowledge of the fact in question. May be inferred from circumstances under reasonable lawyer standard – strong suspicion does not rise to actual knowledge
2. Violations which MAY be reported:
1. Suspected misconduct
ii. No duty to investigate, BUT – duty of some inquiry
iii. A lawyer is subject to discipline for failing to report a disciplinary violation committed by another lawyer/judge
1. BUT, does not apply to information protected by duty of confidentiality
c. Lawyer should create a clear and dated record of steps taken to inquire about suspicions felt. Should also record suspicions themselves
d. Lawyer has an obligation to report as an officer of the court, under an obligation to the client and in lawyer’s own personal interest
e. Law Firms and Associations – MR 5.2 Responsibilities of A Subordinate Lawyer
i. A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person
ii. A lawyer is subject to discipline for a violation committed by a second lawyer if:
1. The first lawyer ordered it or knowingly ratified it; OR
2. The first lawyer is a partner or manager and has direct supervisory responsibility over the second lawyer and learns of the misconduct at a time when it can be remedied but fails to take reasonable remedial action
iii. A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
1. If a supervisory lawyer orders a subordinate lawyer to commit a clear ethics violation, the subordinate lawyer will be subject to discipline if he carries it out
5. Competence – MR 1.1
a. Competence MR. 1.1:
i. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
b. Mostly a function of time and effort
i. Requisite Skill:
1. Complexity and specialized nature of the matter
2. Lawyer’s general experience
3. Lawyer’s training and experience in the field of question
4. Preparation and study the lawyer can give to the matter – lawyer may accept matter he is unfamiliar with if requisite competence can be achieved by reasonable preparation
ii. Most matters do not require specialized skills
c. Enforced through disciplinary, malpractice actions and 6th amendment ineffectiveness of counsel claims
i. Disciplinary actions can range from warnings to disbarment where circumstances surrounding action are irrelevant
ii. Malpractice action:
1. Negligence – MOST COMMON
2. Intentional tort – fraud/misrepresentation/misuse of funds
3. Breach of K – express or implied K by lawyer to use skill and due care
4. Breach of fiduciary duties – loyalty/honesty/confidentiality
iii. Elements in Malpractice Action:
1. Duty of due care to client (and any 3rd parties intended to benefit from representation, i.e. – beneficiaries)
1. Duty – competency and diligence normally exercised by la
i. Lawyer may charge more – extra compensation to offset possible loss
g. Appland – Non-refundable special retainers are void because they hamper the client’s right to fire the lawyer for any reason
i. However, a lawyer need not return a true retainer fee (money paid solely to insure the lawyer’s availability)
h. Regulation of Fees – MR 1.5(a); reasonability of fee
i. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include:
1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. *the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the services; AND
8. whether the fee is fixed or contingent.
i. What cannot be charged under fees?
i. Payment of fact witnesses
ii. Overhead expenses associated with staffing, equipping, running of attorney’s office
1. This is what fee goes to pay
1. HOWEVER, copies; travel expenses; overtime for secretary; legal research fees are all legitimate expenses
j. Commingling Funds – EXTREMELY SERIOUS
i. Money a lawyer receives on behalf of a client must be placed in a client trust fund account
1. Advances in expenses and legal fees not yet earned must be put into a trust account – withdrawals as fees are earned is acceptable
1. Account is separate from lawyers own business and personal accounts!
i. CANNOT commingle funds with personal funds – is a per se offense
k. How to receive payment:
i. Deposit in trust account
ii. Payment of proceeds cut to the client
iii. Deposit of lawyer’s portion placed in lawyer’s separate business account
l. If law permits, attorney may use an attorney’s lien to secure payment of fee
m. Financial assistance to Client in Litigation
i. Advancing litigation expenses – may advance expenses on client’s behalf and repayment may be contingent on the outcome of the case
ii. Paying costs and expenses for indigent client without any provision of repayment is acceptable
iii. Other financial help is prohibited
n. Compensation from third person
i. A lawyer must not accept compensation from a third person for representing a client unless:
1. The client gives informed, written consent;
2. The third person does not interfere with the lawyer’s judgment in represent the client; AND
3. The arrangement does not compromise the clients confidential information
