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Legal Profession
St. Louis University School of Law
Taylor, Aaron N.

Legal Profession Outline – Spring 2014 – Professor Taylor

v Lawyer’s Role: zealously represent client’s position…within the ethical rules

v Trust (i.e., secrecy + loyalty) = bedrock of attorney client relationship

RULE 1.2 and The Attorney-Client Relationship

Model Rule 1.2 Scope of Relationship and Allocation of Authority Between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive a jury trial and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

1.2(a)

v General Way to Classify Decisions that Have to be Made in Attorney-Client Relationship

· (1) Objectives

o The substance of the matter

o Client controls the objectives –the lawyer must adhere to the client’s objectives as long as they don’t require the lawyer to do anything illegal or unethical (even if the lawyer thinks the objectives are lacking)

· (2) Means

o The procedure

o Lawyer controls the means –lawyer must nonetheless consult with the client regarding the means, even though the lawyer controls the means

§ Communicate w/ the client (prudent lawyering)

v Two Specific Categories of Decisions that are Reserved to a Client

· In a civil case

o Lawyer must abide by a clients decision whether to accept or reject a settlement offer

· In a criminal case

o Lawyer must abide by a client’s decision whether to

§ Enter a plea

§ Waive a jury trial

§ Testify

· Note: you do have an ethical duty to tell your client what objectives/decisions are best and why

v Jones v. Barnes (1983)

· Facts: Respondent presented his appointed counsel w/ a list of claims on which to base his appeal

o His attorney found these to be untenable, and proceeded to argue the appeal on different grounds

o Respondent now claims ineffective assistance of counsel

· Held: the lawyer controls the means and it’s the lawyers place as the professional to raise the best arguments or make a strategic decision on how many arguments to make

Loyalty

v Attorney client relationship à bedrock is trust

o trust = secrecy + loyalty

v 3 people in the world:

· Clients

o Owe the most loyalty

· Former clients

o Owe some loyalty

· Never clients

o Only owe loyalty if confidential information is shared

v Clients, how can you tell?

· Client has a reasonable belief that you are their attorney

· Corporation is client

o You represent the corporation, not the employees of the corporation

· Trade organization is client

o Members of the trade organization are NOT your clients

o But you may owe members of the trade organization a duty of confidentiality if they provide you with confidential information

· Parent corporation is client

o Subsidiary is your client

§ Subsidiary is the alter ego of the parent corporation

§ Subsidiary provides confidential information to you – you owe a duty to protect that confidential information

v Client à Former Client

· Finish the work

· Passage of time (obvious that the case is over)

· Client can fire you

o File an ethical complaint against you

o Hire a new lawyer for the same matter

· You fire the client

o This has to be express

o Preferable write a letter ending the relationship

Secrecy

v Includes

· Attorney-client privilege

· Work-product doctrine

· Ethical duty of confidentiality

RULE 1.5 and Fees

Flat Fees

v Flat Fee = fee that a lawyer will charge to complete a given service whether it takes a long time or a short time.

· Permitted everywhere

· Must be reasonable and partially refundable

· Saves a lot of administrative time and low flat fees attract clients

· Can be difficult to determine the refund amount if the work is only partially completed

Contingent Fees

v Contingent Fee = lawyer does not charge any fee unless the client obtains some monetary recovery. If there is recovery, the lawyer takes a fee + costs of litigation out of the recovery.

· Biggest benefit: opens the courthouse to the poor who otherwise would not be able to afford a lawyer.

v Issue: How can lawyers protect themselves from losing money by taking contingent fee cases?

· Select quality cases

· Screen clients up front very carefully

· Find easy wins; work quickly and efficiently to cover losses

v Criticisms:

· Nuisance suits – encourages baseless suits because client doesn’t have to put any money up front

o But this defies logic because the attorney has to put their own money up front and this is the lawyer’s business

o Assume this criticism is true – would the hourly fee cure the problem? —No, because the unscrupulous lawyer would continue to bring these suits. From the client’s perspective, it may discourage cases because client won’t want to pay for the case. Could reduce the problem but not cure it.

o Would the flat fee cure the problem? Same issues as hourly fee.

o Is this a fair criticism?

· Unjust enrichment for the lawyer, 1/3 of settlement for easy case?

o Is there such thing as an easy case?

o Assume this criticism is true – would the hourly fee cure the problem? —No, same incentives.

o Would the flat fee cure the problem

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.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, that lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(2) A contingent fee for representing a defendant in a criminal case.

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) The total fee is reasonable.