Professional Responsibility SPRING 2015
Ethical Problems in the Practice of Law by Lerman and Schrag, Concise Third Edition.
Review of Previous Classes
I) Lawyer Client Relationship
A. Formation – contractual relationship
1. Be careful that an implied contractual relationship isn’t formed.
a. Make sure that you don’t actually give legal advice.
b. If you do, make sure you tell people that they should still talk to a lawyer.
c. A fee isn’t required — (pro bono representation is possible)
2. Client can’t think they are getting legal advice, and they can’t rely on it.
B. If a client gets a contract with a firm, then the whole firm is representing the client.
1. Doesn’t matter how near or far. Attorney client relationship imputed with every attorney in the firm.
2. Wrecks havoc with conflicts.
C. Contract should be in writing (engagement letter) — PA rules require it to be in writing, unless it’s a repeat client.
1. So everything is clear and explicit.
2. Just because it’s not in writing, doesn’t mean a court won’t find that there is a contract. (worst of both worlds, get it in writing)
3. Things to clarify (Fees, Scope of representation, who the client is)
a. After work is finished — make sure to send a confirmation terminating your relationship (unless you expect them to continue doing work with you)
D. Fees & Fee arrangements
a. Costs have to be clear (they come out of the amount recovered, not just lawyer’s cut)
· Usually contingency AFTER costs.
· Can potentially have client paying ALL costs out of their recovery.
a. Retainer – terms should be spelled out in the engagement letter
3. Flat Fee
E. Mental Capacity
1. Don’t need the same mental capacity to enter into an atty client relationship as you do in a regular contract.
2. Need almost no mental capacity to enter into an attorney client relationship.
3. Rule 1.14 — take extra steps to explain things to people that don’t have full mental capacity.
II) Who makes decisions
A. When should you consult your client?
B. Attorney client relationship is an agency relationship.
1. Agent acts on behalf of the principal
2. Principal runs the show
3. Agent does what it takes to accomplish the objectives of the principal
III) “Capture the essence of the ethical obligations” — Four C’s and a D:
A. Competence – R 1.1
B. Communication – R 1.4
C. Confidentiality – R 1.6
D. (no) Conflict of Interest – R 1.7 & 1.9
E. Diligence – R 1.3
I) Exceptions to the duty to protect confidences
A. Rule 1.6 – Confidentiality of Information (pg 113) – Lawyer has a duty to protect client’s confidence if it relates to the representation of the client or unless an exception applies. *source of info doesn’t matter* — Some states have shall for some of these instead of may.
1. Can reveal information if client gives informed consent
2. Can disclose if its impliedly authorized in order to carry out representation
3. MAY Reveal if (1.6(b)): (pg 116, 137)
a. To prevent reasonably certain death or bodily harm
b. To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to financial interests or property of another
· AND has used / is using the lawyer’s services in furtherance of the crime/fraud
c. 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
d. to get legal advice to establish whether complying with rules or not.
e. To defend on behalf of the lawyer (controversy with client or law) – responding to allegations
f. To comply with other law or court order
g. To detect and resolve conflicts of interest
· can’t reveal if would compromise the attorney client privilege or otherwise prejudice the client
4. Only allowed to reveal if used lawyers’ services.
a. ** If the criminal or fraudulent conduct is past, the client didn’t use the lawyer’s services to assist in that conduct, and the client has hired the lawyer for representation relating to the conduct, the lawyer may not reveal the information.
b. ** If the lawyer hears that a client may do something to property, he can’t reveal it unless the person used his services to do so.
5. Only time can reveal if didn’t use lawyers services is to prevent reasonably certain death or substantial bodily harm. (can’t warn of fraud if lawyer’s services not being used)
6. Goal of exceptions is to balance the attorney client confidential relationship (Factors:
a. To encourage frank communication between clients and lawyers
b. To prevent harm to the public
c. To protect the “integrity of the profession” by allowing lawyers to blow the whistle if their own work is being used to commit crimes or frauds.
B. Rule 1.2(d) – (pg 132) addresses the non-bodily harm issues – “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”
1. If a lawyer finds out that he was doing work that was proper, but then turns out to be illegal, he must withdraw.
2. Fraud is defined as “deliberate deception” – but the term is defined differently in different contexts.
a. Ethics codes – Rule 1.0(d) – “ conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive”
· Doesn’t include negligent misrepresentation or negligent failure to apprise another of relevant info.
· Not necessary for anyone to have relied on the misrepresentation or failure to inform
b. Torts – for purpose of civil liability have to prove that someone:
· Made a misrepresentation of a fact, an intention, or a law
· With the intention of inducing the other person to act or refrain from acting in reliance on the misrepresentation, and
· That the Plaintiff suffered financial loss
· As a result of the misrepresentation
c. Criminal – some statutes for fraud specifically (mail fraud, wire fraud)
· State law differs
· Doesn’t require a showing of harm to find an act fraudulent
d. Contracts – can be voidable if one party was induced to sign by a fraudulent (intentional) misrepresentation. Can be voided for a material misrepresentation even if it was not intentional.
· Can be a false
er to reveal confidences to the extent necessary for the lawyer to obtain advice about complying with the rules of professional conduct.
1. Obtaining ethical guidance is not a shield against liability, but having proof that the lawyer sought advice will show that the lawyer took the problem seriously and tried to find the best solution.
F. Revealing Confidences to comply – Rule 1.6(b)(6) – permits a lawyer to disclose confidential information to comply with a court order or with other law. Court order trumps obligation to protect confidences. (for example – laws requiring disclosure of child abuse in some states)
II) Attorney Client Privilege – a more limited protection for clients not to divulge what they say to their lawyers (and vice versa) provided the attorney and client communicate in confidence outside of the presence of third parties for the purpose of delivery of legal services to the client.
A. Difference between Confidentiality and Atty/Client Privilege – Confidentiality is imposed by the ethical rules, violation of which can result in discipline. Privilege is evidence law, which governs what kinds of evidence can be admitted in court.
1. Court may force lawyer to reveal confidences pursuant to 1.6(b)(6) but shouldn’t if it is covered by attorney-client privilege.
2. Can the Claim of Privilege be overcome?
a. Pretty close to absolute.
b. 6th amendment right of a criminal defendant to confront adverse witnesses can come into conflict with certain privileges, such as the marital privilege and the privilege against self-incrimination.
c. Supreme court has expressly declined to decide whether 6th amendment can trump atty/client privilege.
3. Privilege only covers communications between lawyer and client in which the client is seeking legal advice or other legal services.
a. Interview with a witness wouldn’t be covered because not client.
B. Elements of Attorney Client Privilege
1. Communication – only protects disclosure of the communication itself, not against disclosure of the underlying facts that were communicated. Communication is privileged, but the underlying facts are not.
2. Privileged Persons – agents of attorney, translators, parents of minors, all covered. Communications with a prospective client are also covered.
3. Communication in Confidence – client must reasonably believe that the communication is confidential. Communications when strangers are present are not privileged.
4. Communication for the purpose of seeking legal assistance – communication not regarding legal assistance is not privileged (business advice). If only part of the communication is seeking legal advice, only part of it is covered.