Professional Responsibility Spring 2012 Dean Raful
Professional Responsibility Outline
PROBLEM 4: UNDERTAKING REPRESENTATION
Fundamentals of the Lawyer-Client Relationship
Undertaking to Represent the Client
Before you agree to represent the client→ Is he a stranger?
Ø This involves a duty.
Ø The moment the client walks in the door you owe him a duty of confidentiality.
Ø Nowhere does it say in the model rules that you must take anyone who walks in the door as your client.
Ø Decision to represent the client is up to the attorney.
Ø You can discriminate
When someone walks into your office for the first time that person may not be a client but from the moment he walks into your office you owe him duties:
Ø Give competent advice
Ø Keep information he gives you confidential (documents)
Ø Confidentiality of communication
Model Rule 6.2 à Accepting Appointments:
This rule states that a lawyer can refuse to represent a client for a variety of reasons:
Ø If representing the client would be in violation of other Rules of Professional Conduct.
Ø Representing the client is likely to result in an unreasonable financial burden on the lawyer; or
Ø The client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.
Comments:
1. A lawyer is not obligated to accept a client whose character or cause the lawyer regards as repugnant. The lawyer’s freedom to accept clients is however, qualified.
Ø There is a responsibility to assist in pro bono work.
Ø You can fulfill this by accepting indigent or unpopular clients.
Ø A lawyer may also be subject to appointment by the court.
2. You can decline an appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular. Good cause exists if:
Ø The lawyer could not handle the matter competently, or if undertaking representation would result in an improper conflict of interest→ when cause is so repugnant or the client is so repugnant that it is likely to impair the relationship.
Ø Or if it would be financially burdensome.
When you take a client→ it is NOT an endorsement.
Model Rule 1.2 → Scope of representation:
Ø Rule 1.2(b): A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. There is no implicit agreement or authorization with whatever they tell you.
Ø Comment 5: Representing the client does not constitute approval of the client’s views or activities.
What about client’s anger?
Ø A lawyer may not take a case merely to harass
Ø If a client is just harassing someone you may not take the case
Ø There must be a justiciable claim
Ø It is okay to have the moral dialogue with your client and tell him that some of his claims are mean and harassing and will hurt his case.
Model Rule 3.1 à Meritorious Claims and Contentions:
Ø Have to make sure the client’s claims aren’t frivolous, unwarranted, or meritless.
When does the client become your client?
Ø This is based on the client’s perception.
Ø When the client has a reasonable understanding that you are their attorney. This controls!
Ø Whether the client has a reasonable expectation that you are their attorney.
Ø Oral agreement, retaining a lawyer, signing an agreement, etc.
Cocktail Party Question:
You are at a party, your neighbor asks you for advice. The lawyer says let me look it up. It’s then reasonable to expect that that person is your client.
Ø The client’s reasonable perception that you are their lawyer.
Ø The client’s reasonable expectation will trump the lawyer’s understanding.
Ø Rule 1.2 places a limit on the scope of representation.
o The representation must be reasonable AND the client gives informed consent.
o Shoulda said “I will talk to you about it when you come to my office”.
What about the allocation of decision making authority?
Ø There are no rules saying you must listen to your client
Ø Means/Ends Test (Substance Procedure Test):
o Client tells you the ends and you decide the means. Not a very precise test.
o This has been the traditional role. The lawyer just carries out the job. He gets the job done.
o Rules under the Model Code and NY → utilized the Means Ends Test.
o Generally the traditional rule was the means/ends test.
o Client tells you what he wants and the attorney does it. The attorney figures out the procedure. But does the client really want you to be a jerk & overly aggressive with another.
o Justification:
§ The justification for this has been paternalism, autonomy of the attorney and the efficiency rule.
o Criticisms:
§ The criticisms are that the client may want to do things differently, it’s a fallacy to think we can separate the means from the ends, and why let the clients control the ends if we think they are too ignorant to control the means
Ø Under the Model Rules, which have been revised, we now have informed consent.
Ø Rule 1.2
(a) Subject to paragraphs (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 to be pursued. A lawyer may take such action on behalf of the client as impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. 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 and whether the client will testify.
This basically replaces the Means/Ends Test. Now the attorney must consult the client and is restricted in the action that the attorney can take. Thus, this is different from the traditional rule.
Regardless of which test you have there is an obligation to keep your client informed.
The client is always allowed to decide the following: to plead guilty or innocent, to waive a jury trial, and whether he will testify in a criminal matter. It is up to the lawyer to decide what witnesses will take the stand, what causes of action or defenses the client has and what objections to make.
Paternalism is still an issue with informed consent another criticism of informed consent is that clients will bargain away their rights
Comment 1: Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation within the limits imposed by law and the lawyer’s professional obligations.
ü With regard to the means by which the client’s objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation.
ü Only the client has the right to agree to settle a matter, not the lawyer.
You have to get used to the CYA letter (Cover Your Ass).
ü Memo to the client’s file regarding what you discussed with the client.
ü Need your own sort of system that explains your conversations with clients.
ü You may tell your client that you were going to do something that you never followed up with or carried out.
ü Contemporaneous memo to file.
PROBLEM 5: FEES
Model Rule 1.5 à Fees:
ü (a) The fees cannot be unreasonable.
ü The reasonableness of the fee includes considerations such as:
o The amt of work or labor required.
o The likelihood, that the acceptance of this employment will preclude other employment.
o The customary fee in that locality.
o The amt involved and the results obtained.
o Time limitations.
o Nature and length of professional relationship.
o Experience and reputation of the lawyer.
o Whether the fee is fixed or contingent.
ü (b) Says that you have to make sure that you communicate to the client the nature of the fee.
ü (c) You can charge a contingent fee unless it is forbidden. If you do have a contingency fee it shall be in writing and signed by the client.
ü (d) States the kind of fee arrangements which are not allowed:
o Include contingency fee in a domestic relations matter, where the fee is contingent upon securing a divorce, alimony etc.
o Contingency fee re: Criminal Matters.
ü (e) Deals with division of fees.
Fees:
Problem is that incentive in each kind of fee to do something unethical.
ü Hourly Fees: you have an incentive to be unethical.
ü Flat Fee: you have incentive to do the work as quickly as possible.
o Example: Setting up a corporation.
ü Contingency fee: 2 different incentives.
o Unethical → you may want to settle the matter and guarantee a fee.
o Fees are very difficult to deal with.
o Partners really want you to work as many hours as possible.
RULE: When it comes to fees you must make sure that your client knows about what you are doing. You need to tell your client you will not take any other cases while working on his case. The client must understand that there are opportunity costs for you in preparing a case and clearing your calendar.
ü This includes telling that that you are not going to be taking on any more clients because you are taking on their work. Give the client NOTICE. Get it in writing.
NY §1200.11: contingency fee must be in writing, but an hourly fee not required to be put in writing.
You can’t have a non-refundable retainer→ unless it is in writing and is signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement.
In NY the only way that you can make money is if you put time and wor
he client to the extent permitted by other law.
Once you have started appearing in front of the court, meaning filing a Notice that you are going to sue or file a motion, you MUST ask the court’s permission to withdraw.
Mandatory Withdrawal is when a lawyer knows a client is doing something illegal. Permissive withdrawal is when the client disregards an obligation, uses the lawyer’s services to perpetuate a crime.
There are times when you must withdraw and there are times when you may withdraw.
NY §1200.15: This is basically the same as the model rules. Also states that if it is really burdensome financially to keep representing the client it is OK to w/d.
Once you are in front of court to withdraw you MUST get the permission of the court. Need the judge’s permission.
If fired you need to tell the judge.
Under the model rules there is this other reason → other good cause.
MR 1.8(i) à Conflict of Interest: Current Clients: Specific Rules: → Security interest in property:
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) Acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) Contract with a client for a reasonable contingent fee in a civil case.
Collecting fees:
It is unethical to take a security interest in the matter that is the subject of the suit because it is a conflict of interest.
Ø Problem with a security interest: 2 kinds of liens:
o Retaining lien: if you don’t pay me what you own me I keep your stuff (C/L)
o Charging lien: when the client is paid you get this portion of it (statutory) – Ex. Client owes $10,000 and hasn’t paid. You can file a charging lien that informs the court that when the money is paid you get the money before the client.
You almost become a co-plaintiff in the matter.
Can’t take a security interest in the subject matter of the suit except if it is a contingent fee.
We do allow liens.
NY §1200.22: States the same thing that you cannot take a security interest in the disputed property.
When trying to get your fee you can disclose confidential information, but only enough to get your fee. (ex. Swiss bank account)
PROBLEM 7: THE DUTY OF CONFIDENTIALITY (RULE 1.6)
Model Rule 1.6 à Confidentiality of Information:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representations of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm.
(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 an 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 resulting form 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 eh lawyer based upon conduct in which the client was involved or to respond to allegation 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.
