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Ethical Lawyering
SUNY Buffalo Law School
Milles, James G.

Ethics – Professor Jim Milles – Fall 2010

Student Conduct

Converse

Denied admission to bar, conduct – threatening letters, nude picture, complained

NY requires affidavit that applicant possesses good moral character

ABA FORMAL OPINION 4-433
Knowing of another lawyer’s misconduct, must report conduct if it substantially raises question of lawyer’s honesty, trustworthiness, fitness as a lawyer

Cognitive Dissonance

UFO’s – some people went to be saved – never saw UFO – believe even more

Two conflicting ideas – 1 wins

Aronson experiment

Psychology class on sex

Group 1 read in front of professor about sexually explicit things
Group 2 read sexual words from dictionary

Then listen to identical discussion prepared in advance to be boring – sex characteristics of birds

Group 2 found it dull
Group 1 found it exciting and sharp

Voluntary painful experience to get to something the more inclined to do it

Two students on test – 1 cheats – future likely be more or less stringent on punishing cheating

Appoint Attorney

Bothwell – not familiar with type of law

Not require attorney but may appoint one
Appoint attorney – ensure fair/just adjudicative process in individual cases and maintain integrity and viability of judicial system
Appoint counsel

Factual complexity of case
Ability of P to investigate the facts
Existence of conflicting testimony
P’s ability to represent him claims
Complexity of legal issue

Marketability

Court will not require lawyer where it will be a lot of time and money in an area not highly litigated

Rule 6.1 – professional conduct – voluntary pro bono public service
Rule 6.2 – accepting appointments – cant prove less care than a paying client
Fiduciary Duties

Control

Client

Plead, settle

Lawyer

Refuse to assists an unlawful client act

Joint

Negotiate
Raise questions and discuss fully

Machado

Lawyer did tax lien but not bankruptcy because not money leftover in account – lawyer closed practice/left –

Only spoke with Kendra and not actual client (was not agent)

DePape

Thought he was working for hospital and hospital would inform doctor, trying to get in from Canada

Lawyer was to initiate all conversations

Communication
Confidence
Confidentiality
Conflict of interest resolution

Competence

Lawyer Client Relationship

Togstad

Factors

For relationship

Length of meeting
Lawyer take notes / ask questions
Client – get “qualified, quality legal opinion” of her case

Non-Relationship

Others attending meeting
Client bring records?
Discussion of fee agreement
No bill for interview

Ambiguous factors

Whether lawyer told client his firm has little experience in the particular area
Whether he said he was going to speak with his partner

Avoid Problems

Send nonengagement letter
Clarify relationship in writing

Engagement letter – scope and basis for undertaking client

Malpractice

Duty – when there is an attorney client relationship

Implied – client reasonably relied on attorney advice
Duty only to those disclosed in relationship if scope was limited

Negligence OR breach of K

Need expert testimony
Common knowledge exception

Error not related to advanced skill, knowledge, or judgment

Fiduciary duty
Missing statutory deadlines
Failed to research applicable law or investigate relevant facts

Actual Proximate Causation
Damages

May include emotional harm (dePape)

Ineffective Assistance of Counsel

ngaged in action that is a violation of a legal obligation to the organization or a violation of law that reasonably might be imputed to the organization and is likely to result in substantial injury to the organization – lawyer shall proceed in best interest of the organization
Rule 1.13(c) – disclosure may be made outside organization if:

Highest authority insists or fails in timely/appropriate manner an action that is clearly violation of law AND
Lawyers certain to result in substantial injury to organization

EXPRESS OR IMPLIED AUTHORITY/WAIVER

In Re Pressly

Attorney told opposing attorney why client was seeking supervised visitation after she asked him not to – could have said attny-client privilege and said nothing

Citgo – less harm by inadvertent disclosure of four documents; disclose 4, keep from subject matter waiver allowing opposing party to get more information

Alldread test

Reasonableness of precautions taken to prevent disclosure
Amount of time taken to remedy the error
Scope of discovery
Extent of disclosure
Overriding issue of fairness

CONFIDENTIALITY EXCEPTIONS

PHYSICAL HARM

Rule 1.6(b)

May reveal info relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm

Hawkins – lawyer was warned by client psychiatrist/relatives that he was danger to himself and others – client jumped off bridge

No duty to warn – not reasonably certain; info from 3rd party; not mandated but permitted; danger to himself and those that knew disclosing to court would go directly against client interest

More reasonable if direct harm toward 3rd party (I’m going to kill my wife)