I. Sources of Ethics Rules
A. Who Makes The Rules
1. Constitution
2. State bar associations proposes, interprets, and enforces rules
3. Statutes
4. Procedural and evidentiary rules
5. Common law (agency, tort, contract, fiduciary duty)
6. State constitutions
7. Inherent power of courts
B. Courts And Ethics
1. Codes of Conduct adopted by courts are by far the most important source of rules governing Ls.
· ABA is just a private organization, so they don’t have any real power to create enforceable rules.
· On state level, it is Courts, and not Legislature, that is responsible for governing Ls. (This is a point of contention between Courts and Legislatures often.)
o They are usually state-specific and regulated on a state level
o Typically modeled after the Model Rules
o Some states have integrated bars – which means that to practice in the state, you have to submit yourself to their jurisdiction and their rules.
2. The Inherent PowersDoctrine has largely left regulation of legal ethics to Courts.
3. Conflicts among JXs – not always clear answer. Not very important for this class, but just keep in mind that some JXs diverge greatly
C. Rules vs. Ethics
1. Concepts are related, but not the same
2. Ethics: what you believe is the right thing to do. Answer is largely related to the individual. What you think ethics requires is subjective.
3. Rules: practical, what constrain your actual conduct regardless of what you believe.
· If you disagree with the rules, you must decide if your personal beliefs may constrict you from following the rule.
II. Defining C-L Relationship
A. Determining if there is a C
1. QUESTION OF LAW – The focus is on what a C might reasonably believe under the circumstances
· Courts will usually find a relationship if a C could have reasonably believed there was one
o In some cases, Rules expressly require that Ls clarify possible misimpression (rules 1.13(f) & 4.3)
w When a L considers a representation to have ended, he must inform C that he no longer is a C if there is a reasonable chance that C may believe the representation si continuing
· If there is an ambiguity, it must be resolved by L
· Rationale: Laypeople will not always know where the line between protected and unprotected disclosure is drawn. We can’t expect Cs to know, so we place the burden on L.
2. NO FORMALISM NECESSARY
3. MONETARY PAYMENT – Payment serves as good evidence of a relationship, but money need not change hands to create relationship
· Ex: A L may be paid by one person to represent another, in which case the second person is L’s C.
4. ENTITIES
· The C is not the employee, it’s the entity (rule 1.13)
· The L needs to make it clear to the employee that he represents the corp, not the individual. If he doesn’t, that’s a big conflict because he may have to use info to benefit of corporation, even if it’s to the detriment of the employee.
B. Elements Of The C-L Relationship
1. COMPETENCE – L shall provide competent representation to C. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
· Relevant factors (CMT 1 to 1.1)
o The relative complexity and specialized nature of the matter
o L’s general experience,
o L’s training and experience in the field in question
w L need not necessarily have special training or prior experience to handle legal problems of a type with which L is unfamiliar (CMT 2 to 1.1)
w Ls that hold themselves out as specialists will be held to a higher standard of care.
o The preparation and study L is able to give the matter
w Required attention and preparation are determined in part by what is at stake (CMT 5 to 1.1)
Ø Major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence
w L may accept representation where the requisite level of competence can be achieved by reasonable preparation (CMT 4 to 1.1)
w An agreement between L and C regarding the scope of the representation may limit the matters for which L is responsible (rule 1.2(c))
o Whether it is feasible to refer the matter to, or associate or consult with, a L of established competence in the field
· Thoroughness – L must give adequate inquiry and analysis of the factual and legal elements
· Emergencies – In an emergency, a L may give advice or assistance in a matter in which L does not have the skill ordinarily required , but must limit assistance to that reasonably necessary in the circumstances (CMT 3 to 1.1)
· Duty to maintain competence – L has a duty to maintain his competence by keeping abreast of changes in the law an
idential.
o A-C privilege lives on even if no retention ensues from the communications. (Hooser v. Superior Court)
w Rules of evidence protect communications between L and C by denying courts the power to force C or L to reveal the communications.
w Think of two concentric circles. The inside circle contains all privileged info. The outer circle (includes the inner circle) contains all ethically protected info and much more. Courts can order Ls (under threat of contempt) to reveal info in the outer circle.
· Privileged vs. Ethically Protected Info – the two are related, but different
o Privileged info – info protected under the rules of evidence. It prevents a court from using subpoena and contempt to compel the revelation of confidential communications between L and C.
o Confidential info – info protected by the rules of ethics
w Ethical rules define a category of info about C, which may or may not have been gained from C, that L may not ordinarily reveal except to benefit C.
w Prohibits voluntary revelation of info relating to the representation of C.
o The ethical duty is broader than the evidentiary privilege. Ethical precept exists without regard to the nature/source of info or the fact that others share the knowledge (Brennan’s Inc v. Brennan’s Restaurants)
w Much info that is ethically protected will not be within ACP because the source of the info was not C or its agents. But virtually all info privileged under evidence will also be ethically protected.
· Rule 1.6(b) Exceptions: a L may reveal info relating to the representation of a C to the extent L reasonably believes necessary:
o Permits disclosure only to the extent L reasonably believes the disclosure is necessary to accomplish one of the purposes specified (CMT 14 to 1.6)
w Where practicable, L should first seek to persuade C to take suitable action to obviate the need for disclosure.
