Ratner_Pro-Resp_Spring_2014
Sources of Law: MR, Cts inherent authority, procedure, evidence, CL (K, torts, agency), Criminal, Civ stats
What is a lawyer: MR Preamble
– Person who advocates, has certain legal status, admitted to the bar
– 3 Hats: 1. Representative of Client 2. Officer of the Court 3. Citizen having special responsibility for the equality of justice
– Certain Values: Competent, prompt, diligent, maintains comm with C, keeps info confidential
What is a Good Lawyer:
– Spaulding: D finds aneurism but doesn’t disclose it in settlement, settlement is vacated b/c in taking the settlement to the Judge, D had a duty to disclose as an officer of the ct (despite not having a duty to disclose in discovery
Difference Between Personal Morality and Professional Ethics: Role Differentiation – in the role of lawyer there are ethical requirements / justifications which personally may not be justified
Who is a Lawyer Practicing Law?
– Eben: Former drug addict/murderer fails to disclose on BAR –
o Good Moral Character: Burden to show GMC is on person seeking admission, once admitted, burden shifts to authorities to show not GMC
o GMC: Legal doctrine from state law (CA via statute), very influenced by agency
§ “Honesty, fairness, candor, trustworthiness, observance of fiduciary duty, respect for obedience of law, respect for judicial process, not committing acts/crimes of moral turpitude”
§ Purpose of GMC requirement: Protects reputation of profession
o Analysis: Look for signs of BMC (moral turpitude, deceitful and depraved), if BMC then there must be rehab showing GMC to cancel out BMC
– Legal Zoom: What is the practice of law? -> An expansive definition of the practice of law[p1]
o Once an act = practice of law, the service must meet all legal stds/ethics rules (Venn)
– MR 5.5: Unauthorized Practice of Law: only applies to attys, rule is not just prohibition, it is constructive, creates opportunities to practice in other JX (b1, c, d)
– MR 5.5(c): Enables “temporary” out of state, multi-jx practice (MJP)
o A may provide “legal services” (defined in CL) on a “temporary basis” – See Comm 5:
§ Cmt 6: “Temporary” = no single definition and temporary may even be over an extended period of time.
o (c)(1): Temporary practice allowed in association with atty in jx who “actively participates in the matter”
§ “Actively Participates” is not defined, so it depends on how a rsbl atty would define
o (c)(2): Temporary practice ok if “in or reasonably related to” a pleading or “potential” proceeding in JX
§ MR 1.0: Defines “reasonably” as what a prudent of competent atty would think
§ “Potential” = contacted about considering taking on case
§ To understand if proceeding might be held in another jx requires civ pro considerations (of removal / venue)
o (c)(3):[p2] 3 Prongs: 1. ADR 2. Services arise out of or rsbly related to atty’s practice in their jx 3. The jx in which the atty is admitted and the services don’t require pro hac vice admission
§ Cmt 14: Rsbly related factors
o (c)(4): Authorizes long term MJD practice – really aimed at gen counsel
Choice of Law: Anytime 1+ jx’s law potentially provide the substantive rule of law – arises when deciding which JX’s ethics rules gover an atty’s conduct (If JX has adopted 8.5 then this is the rule for COL), and when a Ct is regulating an atty’s conduct (disqual / sanctions) (COL may be 8.5m local rule, Ct discretion)
8.5: 2 Sections (ALWAYS DO BOTH AND PAY ATTENTION TO SAFE HARBOR)
– 8.5(a): JX of Disciplinary Authority: If atty admitted to bar in jx, that bar has authority to discipline the atty for conduct in or out of jx
o Does not tell you what ethics rules will be applied for discipline outside of JX (B does)
– 8.5(b): Decision Tree for COL when conduct is outside of JX:
o (b)(1): Conduct in connection w/ tribunal = rules of tribunal jx apply
o (b)(2): Any other (non-tribunal) = rules of jx where conduct occurred OR where “predominant effect”t occurred (but safe harbor via b2 cmt 5)
§ Cmt 3: Principles/Rationale: Regulatory interest of jx, interest of atty’s understanding of what rules govern their conduct
§ Cmt 5: Predominant Effect test: Obj rsbl std: If rsbl atty would rsbly believe the predominant effect would occur in x JX
· Safe Harbor: As long as there was rsbl belief predom effect was in jx then effect was in that jx
MRT + Apple: What happens when a ct is directly regulating an atty’s conduct (sanctions/disqual) – Judge may or may not apply 8.5 or they may just apply their own rule – Rough and rdy rule: Location of the ct is usually outcome determinative and judge is going to apply the law of the state where the ct sits
A-C Relationship:
– When does relationship start:
o Ex-Ante: Before the work is done – via express agreement, and oral or written K that defines the scope of rep and fees
o Ex-Post: After the work: Determined by the trier of fact as having existed despite lack of express agreement
§ A-C didn’t know their was a relationship, it evolved over time or accidentally,
– Togstad:
– When the A-C relationship begins is determined by K or Tort principles, as to the advice the client was given
– Rationale is to be protective of client (fiduciary model)
– 3 principles for determining A-C relationship:
1. Facts: Is atty communicating? What would C expect in regards to if she is client?
2. Doctrinal: At what point A-C exists is determined by CL
a. Tort: A communicates legal advice (regardless of C asking for it), under circumstances that make it reasonably foreseeable that if such advice was rendered negligently, the advice could cause injury
b. K: A-C exists when A communicates legal advice, on C’s request, and C rsbly relies on the advice
3. Practical: If A starts talking and giving advice, if don’t want AC then refer out and get in writing
Normative Visions of A-C:
– Market: A&C are equal, C is pragmatic and engages w/law. Rules are default, can be K’d around
– Fiduciary: Unsophisticated C – structural inequality b/c A knows more, MR need to protect C
– Participatory: Agency relationship is optimistic that client can become active/sophisticated, MR encourages client by enabling client participation
– Regulatory: Relationship is unequal in favor of C, C is large corp w/ sophistication, rules encourage A to maintain and 1.3 to protect 3rd parties
Allocation of Authority: During the A-C relationship, what is the correct allocation of authority?
– 1.2: Client controls goals, lawyer decides “means” (subject to 1.4)
o What goals / means are depends on the context – the scope of goals is usually indicated in the fee agreement . . . unsophisticated C’s give more discretion to A and vice versa for sophisticated C’s
o 1.4: “Communication” – What and when A can / must tell C – speed, timing, content of comm
o “Prompt” communication: not about exact time, means that comm must be before A action
– 3 Types of Authority:
1. Actual: Express authority to do X 0 defined in K
2. Implied: Authority to take steps to achieve goal C requested
3. Apparent: From vantage of 3rd party – is it apparent that A had authority
– 1.2(c): “Scope of Representation” – A may limits goals/scope with C’s “informed consent”
o Informed Consent = Adequate infor and explanation of material risks + reasonably available alternatives of proposed course of conflict. . . defined in 1.0(e) + Cmt 6-7
§ In limited scope situation: need to explain risk & alternatives of limiting
§ Cmt 6-7: Reasonable Efforts: By atty to ensure the ability to make informed consent
o Limits can be A or C driven but must be “reasonable under the circumstances:” the limit in scope can’t be such that the scope limit hurts the client – must consider the nature of C’s problem, C’s ability to pay, how much A’s work will benefit C – highly contextual
Termination of A-C Relationship:
– Client can fire for almost any reason
– 1.16 (a): Requirements for Withdrawing: If C agrees to withdraw – just substitute counsel, if not, must file motion w/ CT
– When A-C must end:
1. Representation will result in violation in professional rules of
competence occurred in the case b/c he made a series of mistakes over a long period of time suggestive of a lack of skill, knowledge, and prepartation
o Repeatedly and willfully ignorant of probate law
o He had access to other lawyers who knew probate law but didn’t want to give up fees to them
· What does punishment say about the rules of ethics and the enforcement and the emphasis on competence?
· Signals that incompetence is not the worst sin – and the court may be sympathetic to young solo practitioners
· As to competence, CTs tend to rely on tort law of malpractice and public law is less relevant b/c clients tend to be in the best position to know of it and also have private law remedies via malpractice if the injury is that bad
· Repeat offenders for incompetence tend to get worse crime
-Note:
· Ethics rules are public law, bc they are set up not to provide compenstation or provide redress, but to protect the consuming public . . . This regime is layered on top of private tort law which gives compensation for injuries
· Client can pursue private law, Ethics regulations pursue themselves
· Q: Why have these two parallel bodies of law and how do they intersect?
Confidentiality:
1. AC Priv (Evidence) vs Ethical Duty (MR)
2. Scope Privilege / Ethical Duty
– A-C Priv: Narrower than MR Duty: Applies to info transmitted between C and A
o Elements: 1. A communication 2. Made by Privileged persons 3. In Confidence 4. For the purpose of obtaining or providing legal assistance for the clients (limited scope)
§ Excludes merleey converying facts for the purpose of hiding or damaging facts
§ Functions: Protects info in discovery: a defensive doctrine
§ Waiver: If waived to one party, waived too all parties
– Professional Duty of Confidentiality:
– 1.6(a): General Duty: A shall not disclose unless implied consent (1.0), implied authorization, or 1.6b exceptions
o Exceptions: Protect 3rd Parties 1.6b1-3 (permission not required), 4.1 mandatory to avoid assisting crime
§ Protect Attys: 1.6 b4-7
§ Protect Legal Process: 1.6b6 permissive disclosure to comply w/CT order
§ Protection Corporations: 1.13 b,c
o Exceptions: 1.6(b)
1. Death / bodily injury – Balla: In-house disclosed faulty dialysis machines: when is death/bodily injury “reasonably certain” / what is “substantial bodily harm”
2. Future Crime / Fraud: probability (rsbl certain – obj and subj std) + seriousness of injury (substantial injury) + nexus of work atty has done (See Cmt 2)
5. Atty Self-Defense: Meyeyhofer: Disclose to protection A in malpractice
– 1.18: Duty of Confidentiality to Prospective Clients
– 1.9(c): Duty of Confidentiality Former Clients
– 1.13(b): Mandatory: inter-organization disclosure: run up the corp totem pole
– 1.13(c): Permissive disclosure outside organization: 1.6 permits only if and to the extent that A rsbly believes necc to prevent substantially injury to the organization if 1. Highest authority fails/refuses to act; and 2. A rsbly belives that disclosure is necessary to prevent substantial injury to the organization
[p1]Get definition of the practice of law
[p2]Need to review
