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Professional Responsibility
University of Baltimore School of Law
Rubinson, Robert J.

Professional Responsibility
Summer 2012
      Reporting Misconduct
o   Rule 8.3 Reporting Professional Misconduct
§  Knowledge that another lawyer has committed a violation of Rules that raises a substantial question as to that lawyer’s honesty/trustworthiness/fitness as lawyer in other respects SHALL (must) inform the appropriate professional authority
§  You must know that the lawyer committed a violation – it is up to your interpretation of “knowing” the lawyer did something bad
§  You do not have to report misconduct if you are representing that lawyer in a misconduct case
Rule 5.1 Responsibilities of Partners, Managers, & Supervisory Lawyers
Supervising attorney shall make reasonable efforts to ensure the firm has effective measures to conform to the rules
o   Rule 5.2 Responsibilities of a Subordinate Lawyer
§  Lawyer is still bound even if he acted at the direction of another person
§  Subordinate lawyer does not violate rules if he acts in accordance with a supervisor’s reasonable resolution of an arguable Q of professional duty
·         A lawyer who is told to do something that the lawyer thinks is unethical has several options:
o   Accept the directs of the superior
o   Argue with the superior
o   Discuss the problem with another superior
o   Do more research or investigation to try to clarify the problem
o   Ask to be relieved from work on the matter, or
o   Resign or be fired from employment
Elements of the Attorney Client Relationship
      Scope, Competence, Communication & Fiduciary Duty
o   What are the risks of giving advice to someone?
§  You may have unintentionally formed an attorney-client relationship and you’re now on the hook for the best interest of the client
§  You might not have all the information
§  Particularly now, you don’t have a license to practice law
o   Timeline of the attorney client relationship
§  Establishing the attorney client relationship
·         Togstad v. Vesely, Otto, Miller, & Keefe
o   Court found an attorney client relationship for both husband and wife even without signed retainer, money exchange, or even meeting of one of the clients
·         Test employed to determine if an A/C relationship exists—reasonable belief of the potential client
o   Meeting of the minds is irrelevant
·         So what should you do if you choose not to represent someone?
o   Written statement—explicitly state that there is no relationship
o   What about statutes of limitations?
·         Ambiguities are typically counted against the lawyers—they have the responsibility to clearly inform the intent
§  Scope of the attorney client relationship
·         Being someone’s lawyer on a particular issue, does not necessarily mean that you are going to be a lawyer on other legal issues that they may have
·         The test here is again what the client perceives to be the scope of your relationship
·         Define substantive area
§  Termination of the attorney client relationship
·         Send a letter informing the client of termination of relationship or that any info was strictly advice
·         Make sure letter is clear and unambiguous
·         Suggest getting a second opinion
·         Include references to possibility of statute of limitations—no need to be specific unless limitation will end shortly
·         Rule 1.3 Diligence
o   A lawyer shall act with reasonable diligence and promptness in representing a client.
o   Comment 4
·         What about situations where you have a client who loses?
o   Appeal is still possible, so client may reasonably believe that you still represent him
o   Include letter that says the relationship is terminated, give into regarding time period to file appeal
o   Competence
§  Rule 1.1 Competence
o   Thoroughness and preparation—do the dirty work
§  Legal research
§  Fact investigation
o   Legal knowledge and skill
§  A lawyer need not have special training or experience (new lawyer is just as good as a seasoned one)
§  Suggest getting info from those that are experienced in the particular field
§  Rule 1.4 Communication
·         Idea is to keep lines of communication open with your client
o   Attorney will gain respect if they promptly respond to client questions
§  Pissed off clients are more likely to sue or stop paying fees
      When analyzing AC privilege and confidentiality, keep everything compartmentalized and separate
      Ethical Rule
o   Rule 1.6 Rule of Professional Conduct
o   Broad
o   Applies for life
      Confidentiality (rule of evidence)
o   Under Rule 1.6, a lawyer shall not reveal information relating to the representation of a client
o   Applies not only to matters communicated in confidence by the client but also to all info relating to the representation, whatever its source
o   Policy behind this—want clients to trust the lawyer and lawyers to maintain the law system
o   Lawyers can use hypotheticals so long as the client’s identity cannot reasonably be established
§  Limit the name of client, locations, etc—be vague
§  Lawyers can discuss at the watercooler in their firm’s office but probably shouldn’t at a public place
o   Applies to prospective clients too
o   Confidentiality never ends
o    1.6(a) Exceptions—lawyer shall not reveal info unless:
§  Informed consent—get it! In writing! And explain everything in detail including possible consequences or advantage
§  Implied authorization—notion that the rule a

ivilege will attach
§  Client
§  Communicating
·         Can be oral, electronic, writing, etc
·         Does not include attachments
§  Confidentially w/ (can’t CC anybody on your emails!—using an interpreter when it’s needed doesn’t negate confidentiality)—this is a big one!
·         If there is disclosure to a 3rd party, that technically waives privilege
§  With Counsel
§  To Obtain Counsel
o   Analysis:
§  Must have all 5 C’s
§  For Organizations:
·         Must have 5 C’s AND
o   Either of these tests, depending on jurisdiction:
§  Control Group Test; OR
·         Privilege only applies to officers who play a substantial role in deciding the organization’s legal response
§  Subject Matter Test
·         Extends privilege to any employee so long as subject matter relates to manner of representation
o   A/C only protects communications, NOT underlying facts
o   The privilege belongs to the client—if the client tells you to waive it, you have to do what they want
o   Usually if the attorney inadvertently waives the privilege and lacks the authority to waive, then it’s not waived but this varies based on jurisdiction
o   Exception—Crime Fraud Exception
§  Crucial that the client is the one seeking assistance to complete the crime or fraud
§  Attorney does not have to be aware of the client’s intent to commit crime/fraud
o   Must use 5 C’s to determine A/C privilege in private parties—don’t mush it together with
o   Organizations and the A/C Privilege
§  Upjohn
·         Interpreting federal common law, meaning that states can and do go separate ways when analyzing the same issue
·         Established Upjohn Test—subject matter test (see pg. 249)
o   Other option is the control group test
§  5 C’s need to be met + control group or subject matter test (depending on jurisdiction)
·         Control group test—privilege only applies to officers who play a substantial role in deciding the organizations’ legal response (high level employees)
·         Subject Matter test—extends privilege to any employee, so long as subject matter relates to the manner of representation
§  For an exam, if the group isn’t specified, analyze under both tests