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

Intro to Prof. Resp. and Elements of Attorney Client Relationship  7/6/11 3:18 PM
 
I. Intro to Professional Responsibility:
·         What is the Legal Profession and Legal Responsibility? (733-49)
o   Early America: Few Lawyers “Era Without Lawyers”
o   19th Century: Industry developed therefore law developed
§  Development led to more laws and more types of law
§  “necessary evil”
o   20th Century: Growth of large firms
§  355,242 practicing lawyers 1970
§  over 1 million today
o   Legal Education has not changed in 100’s of years
§  Socratic Method from mid to late 1800’s
o   Diversity of legal profession recent vintage 
§  EXCLUSIONARY BEHAVIOR ROOTED IN ECONOMIC SELF INTEREST
§  THINK ABOUT CURRENT LAWYERS NOT WANTING TO HAVE NON-LAWYERS OFFER LEGAL ADVICE
ú  EXCLUSIVE AND FOR ECONOMIC REASONS!
o   Women (Bradwell v. State): Denied application because gender
o   Legal profession today:
§  74% private 8% Government 8% public
·         Self Regulating Profession/Reporting Misconduct
o   20-25, 36-43, 96-100, 104-114, 128-137, 142-144
§  Legal Profession is self regulated
§  Who regulates lawyers?
ú  Malpractice insurance, legislatures, fed courts, lawyer discipline agencies, state bar association
·         Rule 8.3: Reporting Misconduct by other lawyers
o   Duty triggered by a lawyer’s knowledge
·         Rule 5.1/5.2/5.3:
·         Problem 2-1: Class:
o   5.2 rule (subordinate lawyers) triggering
·         Contents
·         Preamble
·         Scope
II. Attorney Client Relationship: Rules 1.3; 1.2; 1.1 ; 1.4; 1.6; 1.16 R§14
·         Policy behind relationship encourage open communication
o   Stage 1: Establishing the Attorney Client Relationship:
§  Fiduciary Relationshipà Abundant good faith
§  When does this relationship begin?
ú  pg. 269: Togstad Case: (See page 271)
ú  Facts: (Case within a Case)
·         Believed was being represented and therefore was.
·         Legal Malpractice case and Medical Malpractice
·         Was legal malpractice cause of damages?
·         Must also have medical malpractice
o   (1) Do not have to necessarily meet client to have this privilege.
o   (2) Don’t need to pay money.
o   (3) Don’t need to sign retainer.
ú  TEST for Establishing Attorney Client Privilege: Reasonable belief part of client (no meeting of minds) pg. 177 Restatement §14
ú  IF  a client reasonably believes that the client is represented by an attorney, the client is represented by an attorney!
ú  Can avoid the attorney client relationship by:
·         1) Putting it in writing; forces clarity
·         2) SOL:
·         3) Consult another attorney
·         4) Instruct Staff
o   Stage 2: Scope of Attorney Client Relationship
§  Understand the scope of representation.
§  Know the exact matter that you are representing your client on.  Is it a will, a divorce, DUI etc.?
§  If a client thinks you are representing him/her on a matter then you are!
§  Lawyer must clarify the scope! BE CLEAR
o   Stage 3: Termination of Attorney Client Relationship
§  When is the relationship terminated?
§  Does the client reasonably believe that the attorney client relationship is terminated? Rule 1.3
§  (Comment 3)
ú  Tell client who is handling the appeal
§  ALWAYS HAVE A TERMINATION LETTER!
§  Be definitive in your language
§  No longer representing  you on the estate case. I welcome working with you in the future.
o   Rule 1.1: Competance: (Comment 2: no special training necessary;  competent rep. can be provided by studying)
§  Legal Knowledge skills
§  Thoroughness of preparedness
o   Rule 1.4: Communication: #1 Failure to Communicate; Not return phone calls, emails etc.
 
III.  Secrecy and Confide

ose.
o   Does B(1) apply? Yes
o   Does exception apply? Yes but it is discretionary.
o   Assuming B (1) applies, will you or wont you disclose?
·         2)  Attorney Client Privilege: Evidence Based Rule: (Rule of evidence that applies in adversarial proceedings, discovery, testimony, trial, deposition)   
o   The Privilege protects information resulting from a client communicating confidentiality with counsel about legal advice/ pursuing legal advice.
o   Remember client’s intentions are relevant for privilege.
§  5 C’s: R§ 68; R§ 72: ACP: R§ 87 Work Product Immunity!
ú  Client
ú  Communicating
ú  Confidentially
ú  Counsel (with)
ú  Counsel (to obtain)
§  ACP protects communication BUT NOT UNDERLYING FACTS
§  IF third party is in the room,  there is no waiver of confidentiality it is a necessary interpreter!
§  Exceptions
ú  If someone else in room for consult (young child or spouse, there is no attorney client privilege!)
ú  Talk of future crime:  There is no privilege if a client seeks assistance with a crime or fraud.
·         Distinction between a request for advice that would help a client to commit a crime or to avoid apprehension, and a request for advice about whether a certain act is permitted under the law. (38 states hold this privilege)
·         (Book Example: Crime Fraud exception not applying because client seeking advice from lawyer about threatened eviction, no evidence asked lawyer to assist w/ crime!)
·         Past acts of communication about crimes is privileged