I. The Law as a Profession
A. Sources of Authority
– why require professional responsibility?
o 1) cynical view: politics, response to Watergate
o 2) an accreditation function: similar to ABA requirement of bar, law school, etc.
§ justified by informational asymmetry: protection for consumers to legal services, who aren’t well positioned to evaluate their quality.
– Sources of authority:
o 1) Constitution – 6th Amendment requires “effective counsel” in criminal cases
§ sometimes interacts with model rules
o 2) Inherent Powers – courts hold that regulation of admission and conduct of lawyers belongs to the courts, not the legislature
o 3) Ethics Rules – ABA rules, especially, often very influential on courts.
§ pre–1983: The Model Code (MC)
· divided in canons, ethical considerations (aspirational), and Disciplinary Rules (DR)
§ 1983: The Model Rules of Professional Conduct (MR)
· 45 states have adopted, with variations.
B. Views on the Law as a Profession: Brougham, Pound, Freidson
– what makes the law a “profession”? What sort of profession is it?
– Lord Brougham view: zealous advocacy. “An advocate, in the discharge of his duty, knows but one person in the world…”
o Conceives of lawyer as zealous advocate of his client, pursuing client’s ends relentlessly, regardless of consequences to others or country.
o context: pursued case even though angering the monarchy.
o “zealous representation within bounds of law” codified in:
§ MC Canon 7
§ MR Preamble
– Roscoe Pound view: public interest, learned, high-minded. Profession is “a group pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood.”
– Eliot Freidson: descriptive economic view. “Occupation whose members have special privileges, such as exclusive licensing, that are justified by the following assumptions:
o 1) practice requires substantial intellectual training and use of complex judgments;
o 2) clients cannot adequately evaluate quality of services and so must trust those they consult;
o 3) this trust presupposes that practitioner’s self-interest will be overbalanced by interests of the client and the public good;
o 4) the occupation is self-regulating.
o Rmk: one would think that information asymmetry/ trust issues would lead to regulation, but self–regulation seems a perverse result.
II. ATTORNEY-CLIENT RELATIONSHIP
· Essential Elements:
o (1) manifestation of client’s intent to lawyer that the lawyer provide legal services for client and
§ (a) manifestation to client of lawyer’s consent to do so or
§ (b) lawyer’s failure to manifest lack of consent, and lawyer knows or reasonably should know person reasonably relies on the lawyer to provide the services; or [depends upon relative sophistication of person]
o (2) a tribunal with power to do so appoints the lawyer to provide the services.
· Evidence of Formation: payment for services, meeting between atty and client
o Burden upon lawyer to clarify—“In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” MR 1.13(f).
o Unrepresented third-party: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that they lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. . . .” MR 4.3.
· Is there a relationship? examples—p296.
o Client determines objective, including whether to settle and, in a criminal case, whether to plea, waive jury, or testify.
§ limitation: Lawyer cannot make a frivolous argument. MR 3.1.
· But see 3.1 re: 6th Am. right to effective assistance of counsel.
§ If an atty negligently disregards client’s instructions, not related to strategy à may be liable for tort damages. See Olfe v. Gordon, p97 (atty went beyond express authority and agreed to a second mortgage for client).
o Attorney determines the means w/ consultation of the client.
§ Lawyer must promptly inform client of settlement or plea offer, unless client has previously indicated preference or authorized lawyer to decide. MR 1.4.
§ Ex of atty autonomy: If lawyer learns of mistake that opponent relies upon, lawyer is not obligated to inform the opponent, but may do so w/o client approval. (Ms. Niceperson, p87).
o Defined by retainer in civil cases, to protect client and attorney.
· MR 1.2(a) –
o Subject to (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 pursued.
o A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.
o A lawyer shall abide by client’s decision whether to settle a matter.
o 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 jury trial and whether the client will testify.
· Binding the Client (Agency, p68)
o Civil cases: Attorney binds the client within the scope of the retainer.
§ even if lawyer makes unreasonable mistake (e.g., misses statute of limitations), binds him. Client’s remedy is in malpractice.
o Criminal cases: Attorney binds client on tactical decisions, unless conduct constitutes IAC (ineffective assistance)
§ Ex: Taylor v. Illinois, U.S. (p69)– Attorney, in misguided strategy, sought to spring a witness on the prosecution by not revealing the witness’s identity. Plan backfired when the judge didn’t allow the witness to testify at all.
· Majority: Bound client b/c not IAC.
· Dissent: Misconduct, not a legitimate strategic error. Heightened concerns as counsel appointed.
§ Even procedural errors generally bind client unless D can prove “actual innocence” or error amounts to IAC (p75).
§ need for finality, unfair to other party
§ but binding client holds innocent responsible for another’s mistakes.
· Not entirely innocent b/c client usually chooses the attorney, particularly sophisticated clients. See S.E.C. v McNulty, p70 (attorney’s failure to respond to SEC complaint resulted in imputed default against client, who had shown no diligence to prevent the default’s occurrence).
o Basis for Agent’s Authority
§ Actual authority – expressed or implied by retainer
§ Inherent authority (in some jxns) – derives from policy of protecting persons harmed by, or dealing with, an agent rather than principal. Can be expressly negated.
§ Apparent authority – form of estoppel that could be created because the client has said or done something that has led the other party to conclude reasonably, though mistakenly, that the lawyer had actual authority. May be despite an express statement that there is no such
), 1.18(b) (prospective)
o (a) A lawyer shall not reveal information
§ relating to the representation of a client, . . .
· Use to the disadvantage: MR 1.8 (current clients), 1.9(c)(1) (former), 1.18(b) (prospective)
o … (b) A lawyer shall not use information relating to the representation of a client to the disadvantage of the client (except, for prospectives, if info is generally known)
§ unless informed consent,
· except as permitted or required by these Rules (e.g., to not counsel to engage in crime/fraud 1.2(d)/4.1(b), to correct falsity 3.3(c)/8.1/8.3)
· Policy (pp37-38)
o encourages full disclosure, enabling lawyer to perform better
§ (but both contentions are empirically unproven)
o respects client’s autonomy
§ but what about the protection of others?
§ Alternative rationales: increases the value of legal services b/c clients can reveal incriminating info w/o worry of it being used against them; protects lawyers from having to reveal information that might incriminate them.
o Disadvantage: withholds information from others and impedes the search for “the truth”
· Exceptions to Confidentiality
o 1.6(a) . . . unless
§ the client gives informed consent,
§ the disclosure is impliedly authorized in order to carry out the representation [e.g., when taking protective action for a client the lawyer reasonably believes has diminished capacity, per 1.14(c)], or
§ the disclosure is permitted by (b)
o 1.6(b) A lawyer may reveal information relating … to the extent the lawyer reasonably believes is necessary:
§ (1) to prevent reasonably certain death or substantial bodily harm;
· Example: Lawyer finds out client is HIV positive, isn’t telling his wife and having unprotected sex with her. May the lawyer divulge this information to his wife?
o HIV could qualify as “substantial bodily harm” that is reasonably certain. First encourage that client tell his wife.
§ (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
§ (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
§ (4) to secure legal advice about the lawyer’s compliance with these Rules;
§ (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
§ (6) to comply with other law or a court order. [essentially a requirement, despite the term “may.” See p60.]