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Legal Profession
St. Louis University School of Law
Baxter, Teri Dobbins

 
Chapter 1: Where Do Ethics Come From?
I.        Legislature does NOT have predominant role in enforcing these (oddly) – the Courts do
II.     There have been recent challenges to this profession being self-regulating (b/c of big scandals)
A.     So Cong stepped in with Acts like Sarbanes-Oxley Act (dealing with SEC) – where Cong imposed rules saying lawyers haven’t done enough
III.   Rules v. Ethics
A.     Ethics – what you believe what is the right thing to do – the ethical thing to do is largely related to individual beliefs and morals (Subjective)
B.     Rules – Practical – what constrains your actual conduct regardless of what you believe (Objective)
C.     May need to follow Rules despite personal Ethics
 
Part I: The Client-Lawyer Relationship
Chapter 2: Defining the Client-Lawyer Relationship
Is There a Client Here?
I.        Prospective Clients
A.     Rule 1.18 – Duties to Prospective Clients
1.      Rationale:
a)      Encourages people to seek legal counsel
b)      Protects the potential client if the lawyer decides to work on the other side of the litigation.
c)      We want prospective clients to be able to divulge enough information for the lawyer to determine if he will take the case or not or if he has a conflict of interest. 
d)      Need to protect people’s perceptions as well.
B.     Togstad – Attorney failed to get back to potential client after initial meeting, SOL ran and attorney was subject to malpractice liability.
C.     Burden is on the attorney to clear up ambiguities about whether the relationship has been created.
1.      Rule 4.3 – Dealing with Unrepresented Person
2.      Perez v. Kirk & Carrigan
a)      An agreement may be implied from the conduct of the parties.
b)      Wrongfully represented that a privileged statement would be kept confidential – P believed there was a relationship.
Elements of the Lawyer-Client Relationship
I.        Competence
A.     Rule 1.1 – Competence
1.      Legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
B.     You can become competent through research and by association with someone who is competent.
C.     Burden is on the attorney to tell client he is not competent to handle a case.
D.     Consequences of Incompetence:
1.      Civil or criminal liability
2.      Malpractice – ineffective assistance of counsel
3.      Discipline (rare absent egregious error or pattern of neglect)
II.     Confidentiality
A.     If information is learned IN THE COURSE OF REPRESENTATION, it is confidential.
1.      See Comment 3 – all matters relating to the representation are confidential, whatever the source.
B.     Rule 1.6 Confidentiality of Information
1.      May not reveal information relating to the representation unless client gives informed consent, disclosure is impliedly authorized, or disclosure is permitted in paragraph (b)
2.      Paragraph (b) contains a list of permissive exceptions.
C.     Rules 1.8 and 1.9(c) only forbid use of a client’s or former client’s confidences to the client’s disadvantage
1.      Even that limit is lifted under 1.9(c) if a former client’s confidential info has become “generally known”
D.     Confidentiality to Prospective Clients
1.      Perez – Either a wrongful disclosure of a privileged statement or wrongful representation that an unprivileged statement would be kept confidential – either way, attorney was liable.
2.      Duty can attach even if no retention fee is paid.
3.      Duty applies to preliminary discussions
E.      Privilege vs. Confidentiality
1.      Privilege – protected by law of evidence
a)      Can’t be compelled unless there is an exception to the privilege
2.      Confidential – protected by ethics rules
a)      May be compelled by court or discovery request
3.      Almost all info is confidential, but only a small portion is privileged.
F.      Entity Clients – Confidentiality and Privilege
1.      Rule 1.13(f) – duty to explain to employee/constituent that the entity is the client, not the individual.
2.      Privileged Communications in Relation to Entity Clients:
a)      Control Group Test
(1)   Only those who have the power to make decisions have the privilege.
(2)   Criticized:
(a)    In the corporate context, employees beyond the control group who will possess the i

Rules and Code allow lawyer to reveal in order to collect fees from a client.
3.      Waiver
a)      Client may waive the privilege explicitly or implicitly.
b)      Inferred when client puts the confidential info at issue in litigation.
c)      No waiver if the purpose of revealing CI is to enable the lawyer to render professional legal services to the client.
4.      Crime-Fraud Exception
a)      Not privileged if the client has consulted a lawyer in order to further a crime or fraud.
b)      Rule 1.6(b)(3) recognizes crime and fraud (Code only recognizes crime).
5.      Future Crimes or Fraud
a)      Rule 1.6(b)(1) – may reveal to prevent death or substantial bodily harm, whoever the actor and even if no crime is involved.
b)      Rule 1.6(b)(3) – may reveal to prevent, mitigate, or rectify financial injury reasonably certain to result from client’s crime or fraud
6.      Noisy Withdrawal
a)      May have an obligation to withdraw and disclaim work done for the client to third parties.
b)      Found in Rule 1.2 (comment 10) and Rule 4.1 (comment 3)
7.      Identity and Fees
a)      Generally not privileged
b)      Three rarely invoked exceptions:
(1)   Legal advice exception – when there is a strong probability that disclosure would implicate the client in the very criminal activity for which legal advice is sought
(2)   Last link exception – would incriminate client by providing the last link necessary for evidentiary chain
(3)   Confidential communications exception – protects client if by revealing the info, the attorney would necessarily disclose confidential communications
8.      Public Policy
a)      Disclosure in the interest of public policy (rarely used, not likely to be successful).