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Professional Responsibility
University of Baltimore School of Law
Melton, Leigh

Professional Responsibility Outline- Melton, Fall 2013

(1) INTRODUCTION TO LEGAL ETHICS

4.4(b): A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

· Rico v. Mitsubishi: Attorney cannot read document more closely than necessary to ascertain it is privileged. Once apparent that it is privileged, counsel must notify opposing counsel to try to resolve the situation.

o Absence of prominent notations of confidentiality does not make them any less privileged

o Court consider whether reasonably competent counsel, knowing the circumstances of the litigation, would have concluded that materials were privileged; how much review was reasonably necessary to draw that conclusion, and when the examination should have ended

(2) SOURCES AND APPLICATION OF LEGAL ETHICS RULES

American Bar Association: National, voluntary association of lawyers that plays a critical role in the creation of the law governing lawyers

· ABA does NOT license lawyers to practice law, nor does it impose discipline

Admission to Practice General Requirements

· Bachelor’s degree/J.D. degree

· Pass the bar exam

· Good moral character

o 8.1: Bar Admission and Disciplinary Matters: Applicant to the bar shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.

§ In re Debartolo: bar admissions refused to admit DeBartolo because he did not posses the minimum level character and fitness. DeBartolo’s sworn application contained inaccurate educational information and failed to include some of his residences. Also listed hundreds of parking tickets and represented himself as a police officer.

· Rule: Candidate did not demonstrate the good moral character and general fitness that are necessary to qualify for admission to the bar of the State.

· Federal courts: Each federal court maintains list of licensed lawyers separate from states in which they sit

· Admission pro hac vice: “for this turn only” (5.5: Multijurisdictional Practice of Law)

o When a lawyer who is licensed to practice in one state has occasional need to represent a client before another state court, the lawyer requests admission before that state’s courts “pro hac vice”. Lawyer files a motion with the particular court before which lawyer wants permission to appear

o Lawyers licensed in one jurisdiction commit unauthorized practice violations when they practice in another jurisdiction without obtaining permission from the second jurisdiction’s courts

Duty to Report Misconduct

· Among the main features of the legal profession’s claim to be self-governing is the requirement of reporting a fellow lawyer or judge’s serious misconduct to the appropriate professional authority.

· 8.4: Misconduct: Misconduct for a lawyer to:

o (a) Violate or attempt to violate the Rules, knowingly assist or induct another to do so;

o (b) Commit a criminal act that reflects adversely on the lawyer’s honesty or fitness as a lawyer;

o (c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

o (d) Engage in conduct that is prejudicial to the administration of justice;

o (e) State an ability to influence improperly a government agency by means that violate the Rules;

o (f) Knowingly assist a judge in conduct that is in violation of applicable rules of judicial conduct.

· 8.3: Reporting Professional Misconduct: Requires a lawyer to report misconduct “that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects…”

o Rule does not require a report of misconduct when lawyer has learned of misconduct through confidential communications that would be protected by ethical duty of confidentiality under Rule 1.6. Exceptions to the duties of confidentiality (ex. The future crime exception) continue to apply.

· 8.2: Judicial and Legal Officials: (a) Lawyer shall not make a statement that the lawyer knows to be false concerning the qualifications or integrity of a judge; (b) Lawyer who is a candidate for judicial office shall comply with applicable provisions of the Code of Judicial Conduct.

Three types of discipline:

· (1) Reprimand: mildest form, does not limit the attorney’s right to practice law

· (2) Suspension: more stringent level of punishment because attorney is prohibited from practicing law for certain term; may include requirement that attorney take and pass a legal ethics bar exam before being readmitting to active practice

o In re Holmay: Willfully and intentionally filing false notarized documents, forging signatures, or executing false certificates by an attorney will result in severe disciplinary action

· (3) Disbarment: Usually means permanent removal from practicing law, however in some states a disbarred attorney may subsequently petition for readmission; communication is the number one reason why attorneys are disbarred

8.5(a): Disciplinary Authority

A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides of offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(3) LAWYER-CLIENT RELATIONSHIP

Beginning Representation-> 1.18: Duties to Prospective Clients

· General Rule: Lawyers are not public utilities; a public utility has a duty to serve anyone who wants service and can pay for it; lawyer does not need to serve just anyone who walks into the office

· Lawyer-client relationship begins when client reasonably believes lawyer has undertaken to provide client with legal service. Relationship onset does not depend on existence of a written contract or a fee payment

· Restatement 14(1)(b): a person can become a client simply by asking attorney for legal help, or if the attorney does not decline to give help, and if the attorney knows or should know that person will reasonably rely on attorney to give help.

· Attorney owes a non-client a duty of care in four situations:

o Prospective client

o Invited reliance: invites non-client to rely on work attorney does for a client, and if non-client relies

o Non-client is intended to benefit: if the attorney knows that one of the client’s primary reasons for getting the legal service is to benefit the non-client

o Breach of fiduciary duty by client

1.16: Declining or Terminating Representation

· Formal lawyer-client relationship ends when representation terminates

o Despite termination, many lawyers duties to clients continue, such as confidentiality and limited conflict avoidance duty

· Mandatory withdraw: Under some circumstances, lawyers are required to withdraw representation, thereby terminating the lawyer-client relationship. Failure to withdraw will subject the lawyer to discipline.

o Continued representation will violate the ethics rules: 1.16(a)(1)

o Continued representation will violate other law: 1.16(a)(1)

o Lawyer’s physical or mental health is impaired: 1.16(a)(2)

o Lawyer is discharged: 1.16(a)(3)

· Permissive withdraw: Sometimes, lawyers are permitted, but not required, to withdraw. This allows lawyers to withdraw without breaching a duty of continued representation to client: 1.16(b)

o No harm to client: 1.16(b)(1)

o Causes that will excuse some material harm to the client:

§ Lawyer’s reasonable belief that client is acting criminally or fraudulently: 1.16(b)(2)

§ Past use of service for crime or fraud: 1.16(b)(3)

§ Client actions that are repugnant or imprudent: 1.16(b)(4)

§ Client failure to meet obligations: 1.16(b)(5)

· Holmes v. YJA Realty Corp: Court held that an attorneys withdrawal from employment is permissible where a client makes representation unreasonable or deliberately breaches an agreement for legal services

§ Unreasonable financial burden: 1.16(b)(6)

§ Client unreasonably difficult to work with: 1.16(b)(6)

§ Other good cause: 1.16(b)(7)

· Even when lawyer has good cause to withdraw, court may order lawyer to continue representation. 1.16(c)

o Ruskin v. Rodgers: Defendant contended that the trial court erred in denying the motion for substitution of attorneys during the course of the trial and that an individual has an absolute right to replace his attorney at any time with or without cause. Court held that defendant could not charge attorneys during a trial because it was too disruptive. To allow defendant to substitute attorneys at this point would have been extremely disruptive and caused delay

o Kriegsman v. Kriegsman: Plaintiff was on welfare and did not have funds to pay additional fees incurred so firm contended that they were entitled to be relieved from further representation. Court held that firm did not have cause to abandon case and should continue to represent plaintiff through completion of trial. Attorney has obligations and duties to a client once representation is undertaken which do not evaporate because case becomes more complicated or the retainer not as profitable as first imagined

· Procedural requirements for withdrawal:

o Clients must be given reasonable notice before withdrawal is effected: 1.16(d)

o Court approval: When litigation is pending, a lawyer must obtain the court’s permission to withdraw from representation: 1.16(d)

· Duties upon termination of the lawyer-client relationship: In general, a lawyer is obligation to take reasonable measures to minimize the harm to the client upon termination of representation. Any fees that have been paid to the lawyer but not yet earned must be refunded to the client upon withdrawal

· Fee liability upon termination: Although a client may discharge a lawyer without cause, the client will continue to have an obligation to pay fees to the lawyer that have already been earned

o When a fee is a fixed amount for a particular service or based on hours of service, the fee upon discharge will be calculated as value of services rendered. This theory is called quantum meruit.

o Rosenberg v. Levin: Court held that a lawyer discharged without cause is entitled to reasonable value of his services, but recovery is limited to maximum fee set in contract entered into for those services. Court needs to consider the totality of circumstances surrounding the professional relationship between the attorney and client; factors such as time, recovery sought, skill demanded, results obtained, and the contract itself.

Other Issues:

· 3.1: Meritorious Claims and Contentions

o 3.1 prohibits an attorney from taking a frivolous legal position that has no basis in existing law and cannot be supported by a good faith argument for extending, modifying, or reversing existing law

§ Objective standard- reasonable attorney pursuing the claim

§ Subjective standard- if a particular attorney knew claim was frivolous (some courts still use)

· 6.1: Voluntary Pro Bono Service

o Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono legal services per year.

§ Courts reluctant to find lawyers bound to represent indigent clients without compensation

§ Pro bono work should be encouraged, but still voluntary

· 6.2: Accepting Appointments

o Bothwell v. Reuplic Tobacco Co.- Judge appointed attorney Metcalf for client. Metcalf contends that the Judge’s order appointing her as counsel is erroneous because a federal court has no statutory or inherent authority to force an attorney to take an ordinary civil case for no compensation.

§ Issue: Do federal courts possess the power to require an unwilling attorney to accept appointments?- YES, Federal courts can compel an attorney to accept appointment

§ Courts

o Peel v. Attorney Registration & Disciplinary Com’n: Lawyer who is certified as a specialist in trial advocacy by the National Board of Trial Advocacy, a private organization. Court held that a lawyer who is certified under those circumstances may call himself a certified specialist, provided that he identifies the organization that certified him and takes related steps to avoid misleading the public.

§ A lawyer may state that he is certified as a specialist only when the certifying organization has been accredited by the ABA or been approved by an appropriate state authority.

· Runners and cappers monitor accidents and other events likely to produce legal work and then direct potential clients to the lawyer for whom the runner or capper works.

o Lawyers who employ runners or cappers are subject to discipline. In many states, employment of runners or cappers is also a criminal violation.

o In general, lawyers may not give anything of value to anyone who refers a client to lawyer.

(5) ATTORNEY FEES AND FIDUCIARY DUTIES

1.5: Fees

· Lawyer’s fee must be reasonable. A range of factors may be considered in setting a reasonable fee.

o Zauderer v. Office of Disciplinary Counsel: a lawyer entering into an actual client relationship must make fair disclosure of the basis on which fees will be assessed

o Robert Wheeler, Inc. v. Scott: Attorney’s fees should be reasonable; reasonableness is determined by balancing twelve factors: (1) time and labor, (2) difficulty of issues, (3) skill required, (4) loss of opportunity, (5) customary fee, (6) fixed or contingency fee, (7) time limitations, (8) amount involved and results obtained, (9) experience, reputation, and ability, (10) undesirability of the case, (11) casual or regular employment, (12) awards in similar cases

· In general, a written contract setting the fee is preferred but not required.

· Contingent fees

o With a few exceptions and restrictions, a lawyer is permitted to charge a fee that is contingent on the outcome of the matter. Generally, cases that produce a res, a pool of recovery money from which the contingent fee may be paid, are appropriate for contingent fees.

§ Exceptions: criminal cases and family law

o When contingent fees are permitted, additional restrictions apply.

§ Writing and terms: While ordinarily a fee agreement need not be in writing, a contingent fee agreement MUST be in writing and signed by client. Agreement must explain way in which the fee will be calculated and the way in which deductions for expenses will be calculated.

§ Ending statement: Lawyer must provide an ending statement in writing to client explaining the outcome of the matter and providing the calculation of the fee and expenses.

· Fee Splitting

o Lawyers in the same firm routinely share fees with one another. However, when lawyers who are not members of a firm share fees or when lawyers seek to share fees with non-lawyers, special issues arise.

o Fee splitting practice is permitted if the total fee is reasonable, the client agrees to the arrangement, and either the fee is shared in proportion to the work done or the lawyers accept joint responsibility for the representation. The agreement must be confirmed in writing.

§ Fees may not be shared with non-lawyers except under quite limited circumstances

Fiduciary Duties

· Fiduciary owes to the beneficiary good faith, candor, and care in management of the beneficiary interests.

· Handling clients’ money: Lawyer fiduciary duties, beyond general care owed to client interests and confidences that the relationship implies, are usually the lawyer’s handling of clients’ money and property.

· 1.15: Safekeeping Property

o Client Trust Accounts

§ Rule 1.15 requires attorneys keep clients’ money and property separate it from their own, maintain adequate records, to notify clients promptly when money or property is received on their behalf, and to deliver promptly any money or property that belongs to clients

§ Attorney must never mix personal or law office funds with client’s funds in trust account

§ Typically, lawyer receives relatively small sums, to be held for relatively short periods, on behalf of many different clients. Lawyer typically lumps these sums together in a single trust account in a bank

§ What does into the client trust account?

· Fee for completed work- NO, covers work already done and belongs to lawyer

· Expense advance- YES, regarded as “client’s property” so must deposit it into client trust account

· Advance on attorney’s fees- YES, legal fees paid in advance must be put into the client trust account, to be withdrawn by the lawyer only as fees are earned

· Retainers- Maybe, depends on how the lawyer uses the retainer

o Client Security Fund: All 50 states have established client security funds, a source of money that can be used to reimburse clients of dishonest lawyers.