Legal Ethics in the Practice of Law
Professor Langford
Spring 2011
Initial Reflections on Ethics, Morality, and Justice in an Adversary System
a. The process of professional responsibility investigation
i. The Bar gets a complaint against a lawyer
ii. The Bar processes a complaint and assigns it to an investigator
iii. The Bar sends an “O” letter to the lawyer starting the formal process
iv. The lawyer has to respond to that letter – the Bar gives 21 day before filing formal charges
v. Early neutral evaluations (ENE) in front of two judges
vi. If the case is not settles at ENE stage, the prosecutor files formal charges
vii. Prosecutor has to prove fault w/ clear and convincing evidence
viii. If convicted, a lawyer can appeal and the appeal committee can increase penalties
ix. If convicted, a lawyer gets disbarred for 5 yrs
b. Discipline by the Bar is very harsh because have to pay for Bar’s costs before returning to practice
c. Charges of legal malpractice are not the same as charges of ethical violations
i. In a legal malpractice suit, have to prove the EE: duty, breach, proximate case, damages
ii. In an ethical disciplinary matter, all that has to be shown is that an attorney violated the rule regardless of lack of harm to the client or not being the proximate cause of the harm
d. Rules of Professional Conduct:
i. California Lawyers are only governed by California Rules of Professional Conduct
ii. California does not accept ABA model rules
iii. CA Rule 1-100 C pg. 469-70
1. The Rules are intended to establish standards for purposes of discipline
2. If a member engaged in a conduct contrary to these Rules, that doesn’t automatically give rise to a cause of action – the rules are evidence of legal malpractice, but not a per se proof of it.
Chapter II – Undertaking a Case
1. Problem 1 – Hanging out your Shingle
a. Facts:
1. Arthur Hunnicut – 8 yrs of practice in small business incorporation. A client wants to hire Arthur for a PI RR case. Arthur has two friends – Fred and Mary – experienced in PI, one doesn’t pay referral fees.
2. Prof: first thing you do is talk to the client and find out when the accident happened b/c the statute of limitations is running. Call up an expert in the field and tell what happened and ask what they think. Things told to a consultant are not privileged. Even if he knows that Fred and Mary are better personal injury attorneys, that alone would not make it unethical for Arthur to take the case. There is always a better lawyer somewhere out there.
3. Prof re referral: b/c both Fred and Mary are top-notch, probably can refer the case to either one. But if refer to someone is not good but pays a referral fee, then there is a problem in breaching a fiduciary duty to a client (certain duties come into play even before you become a client’s lawyer).
b. Relevant Rules:
1. ABA Model Rule 1.1 pg. 9 – Competence
a. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
b. Legal Knowledge and skill – relevant factors include:
i. Complexity and specialized nature of the matter
ii. The lawyer’s general experience
iii. The lawyer’s training and experience in the field in question
iv. The preparation and study the lawyer is able to give the matter
v. Whether it is feasible to refer the matter to, or associate or consult with a lawyer of established competence
vi. A newly admitted lawyer can be as competent as a practitioner with long experience
vii. A lawyer can provide adequate representation in a wholly novel field through necessary study and reasonable preparation;
c. Thoroughness and Preparation are determined in part by what is at stake
3. ABA Model Rule 1.3 pg. 12 – Diligence
a. A lawyer shall act with reasonable diligence and promptness in representing a client
b. A lawyer can exercise professional discretion
c. Procrastination is widely resented – duty to act with reasonable promptness
4. CA Rule 3-310 pg. 488 Failing to Act Competently
a. A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence
b. Competence means:
i. Diligence;
ii. Learning and skill;
iii. Mental, emotional, and physical ability reasonably necessary for the performance of such service
c. If a lawyer doesn’t have sufficient skill and learning when the legal services are undertaken, the member may still perform such services competently by
i. Associating with or consulting another competent attorney, or
ii. By acquiring sufficient skill and learning before performance is required.
d. There is a duty to supervise the work of subordinate attorneys and non-attorney EEs.
i. Can’t blame secretary or paralegal for mistakes
e. In an emergency, a lawyer may give advice or assistance reasonably necessary in the circumstances where referral is impractical.
i. Prof: in an emergency, just do the best you can.
5. CA Rule 3-500 pg. 494 Communication
a. A member shall keep a client reasonably informed about significant developments relating to the representation, including promptly complying with reasonable requests for information
b. A lawyer will not be disciplined for failing to communicate insignificant or irrelevant information
c. Prof: offer of settlement v. Notice about filing a motion to compel
d. Prof: that includes telling the client if a lawyer screwed up
i. It’s OK to try to correct the mistake for about a week, but if can’t – have to tell the client and take it off the bill.
6. CA Rule 2-200 pg. 480 – Financial Arrangements Among Lawyers (Referral Fee)
a. A member shall not divide a fee for legal services with a lawyer who is not a member of the same law firm, unless:
i. The client has consented in writing after a full disclosure in writing has been made that a division of fees has been made and the terms of the division; and
ii. The total fee charged by all lawyers is not increased because of the division and is not unconscionable.
iii. Prof: the amount can’t be increased because the fee is divided
iv. The agreement MUS
iv. CA Bar doesn’t require unwilling attorneys to render their services
c. Readings:
i. Mallard v. US District Court pg. 73-76
1. A bankruptcy attorney Mallard refused to take on a pro bono civil rights case
2. SCOTUS said an attorney could refuse per language of the statute
3. Prof: if a judge asks you to take a case, you never refuse.
ii. Demjanjuk – Ivan the Terrible of Treblinka pg. 62
iii. KKK pg. 63 – a suit to obtain KKK membership list – the lawyer appointed by the ACLU defended because of privacy of information issue even though found client repugnant
3. Problem 3 – Getting a Client and Getting Paid
a. Facts:
i. Alice Tennant talks to Olive Martini at the cocktail reception about water spots on the ceiling. Alice tells her to come to the office and make sure she isn’t underinsured. Olive never comes to the office to discuss the lease issues.
ii. Purchase of a marina. Attorney will be paid with 10% stock and contingency fee of everything she saves of purchase price.
1. Prof: 10% is too much for 60 hours of work. Problem: the agreement doesn’t make the scope of services clear. It is appropriate to negotiate for stock, but transaction has to be fair to the client.
b. The existence of attorney-client relationship
i. A-C relationship is usually the trigger for fiduciary duty
ii. A lawyer can find himself representing a client without even knowing it
1. Reasonable expectations and reliance of the putative client are important.
a. A-C relationship could result from client talking to secretary
2. A lawyer is more likely to get in trouble with a client who is unsofisticated
iii. Neither a retainer nor a formal fee agreement are required to establish A-C relationship
1. A-C relationship may be inferred from the lawyer’s conduct
2. Most jxns use K law concepts – detrimental reliance, reasonable belief, express and implied agreement
3. Togstad case pg. 103 – a lawyer told client she had no case, would discuss it with his partner and never got back to her, C/S A-C relationship arose.
iv. Kurtenbach Test pg. 81
1. Did the client seek advice from the lawyer?
2. Was it within the lawyer's area of competence?
3. Did the lawyer, either directly or implicitly, agree to give the requested advice?
c. Prospective clients
i. ABA Model Rule 1.18 pg. 55 – Duties to Prospective Clients
1. A prospective client is a person who discusses with a lawyer the possibility fo forming an A-C relationship with respect to a matter
2. Even when no A-C relationship ensures, a lawyer shall not reveal or use information learned in the consultation
a. There is a duty to keep the communication confidential even if the person never becomes a client
ii. Websites and online marketing
1. On-line advertising is protected commercial speech
2. Not clear at what point a website visitor becomes a client
3. Can have a disclaimer that there is no A-C relationship, but may not protect
4. Unbundling of legal services pg. 84 – legal services that cover part of client’s legal needs
