Professional Responsibility Outline
Professor Moscato
Fall 2014
· Definitions
o 1.0 Comment 5: “fraud”: has a “purpose to deceive”; does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information.
o 1.0 Comment 6: “informed consent”: disclosure of the facts and circumstances giving rise to the situation; explanation the material advantages and disadvantages of the proposed course of conduct; discussion of the client's or other person's options and alternatives.
o 1.0 Comment 2: “firm”: whether two or more lawyers constitute a firm can depend on the specific facts: if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm. The terms of any formal agreement, whether they have mutual access to information concerning the clients are relevant.
· Competence
o Rules:
· MR. 1.1: legal knowledge, skill, thoroughness, preparation reasonably necessary for the representation (“experience” not required)
· CA Rule 3-110: (even lower bar) shall not intentionally, recklessly or repeatedly fail to perform with competence
· MR. 1.4(b) (communication): shall explain the matter to the extent reasonably necessary to permit the client to make informed decision.
· Smith v. Lewis: must know those plain and elementary principles of law; discover those additional rules of law; make an informed decision (based on the status of the law in that area) as to a course of conduct based upon an intelligent assessment of the problem (i.e., make any credible argument)
· MR. 1.1 Comment 1: factors: complexity, specialized nature, preparation and study
§ Expertise may be required in some circumstances (reasonable practitioner standard)
§ Feasibility of associate or consult with experienced lawyer
· Fees
o Can you bill your client for time “getting up to speed”?
· MR. 1.5(a): fees must be reasonable (customarily charged; experience, reputation, ability of the lawyer; time and skill required)
· CA Rule 4-200: fees must not be “illegal or unconscionable” (considering similar factors)
o Can you accept referral fees?
· Not allowed under MR 1.5(e); allowed under CA Rule 2-200 if client has consented in writing after full disclosure.
· When is the duty of competence triggered?
o Prospective client
· MR 1.18(a): a person who consults with a lawyer about the possibility of forming ACR is a prospective client
· MR 1.18 Comment 2: whether a communication constitutes a consultation depends on circumstances:
§ “consultation” occurs if specific requests or invites the submission of information w/o clear and reasonably understandable warnings, and a person provides information in response
§ “consultation” does not occur when a person unilaterally communicates with the lawyer w/o reasonable expectation that the lawyer is willing to discuss the possibility of forming ACR.
o Inferred ACR?
· ACR when a person seeking legal advice consults with an attorney and secures that advice; absence of an agreement with respect to fee does not prevent the relationship from arising. Perkins v. West Coast Lumber Co. (CA)
· ACR may be inferred from conduct (prospect client seeking advice/assistance? Atty expressly or impliedly agree to give advice/assistance?). Kurtenbach v. TeKippe (Iowa)
· Contract law principles – detrimental reliance, implied agreement ? Togstad v. Vesely et al. (Minn.) (“I don't think you have a case, but I'll talk to my partner.”)(Evaluation on the merits = clear cut legal advice);
· Miller v. Metzinger (CA)(Defendant Metzinger who undertook to obtain medical records necessary to an evaluation of the wrongful death claim breached his duty when he failed to advice plaintiffs of the necessity to act promptly in contacting new counsel).
· Summary: (1) if you suggested some steps, you have a duty to follow up with those steps; (2) put yourself in client's shoes – does client believe I am giving him legal advice? Has confidential information been shared? (3) provide explicit disclaimer.
o What is the effect of ACR – what duties flow?
· Competence/diligence (MR 1.1 & 1.3)
· Candid communication (MR 1.4)
· Confidentiality (MR 1.6)
· Loyalty/avoid conflicts (MR 1.7)
· Creates a framework for decision-making authority: client determines the objectives; lawyer determines the means in consultation with the client (MR 1.2/MR 1.4)
· Client may have contractual duties to the lawyer (fees, MR 1.5)
· Communication
o MR 1.2(a): shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursed . . . [and] shall abide by a client's decision whether to settle a matter.
o MR 1.4: (a) a lawyer shall . . . (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; . . . (b) a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
o MR 1.6 Comment 16: the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure.
o MR 1.2(d): shall not counsel or assist a client in crime/fraud, but may discuss the legal consequences .
o MR 1.4(a)(5): shall consult with client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules.
· Confidentiality
o MR 1.6(a): shall not reveal information UNLESS client gives informed consent, impliedly authorized in order to carry out the representation, or permitted by paragraph (b).
o CA B&P Code § 6068: duty to maintain inviolate the confidence and at every peril to himself to preserve the secrets.
o CA Rule 3-100(A): shall not reveal information without the informed consent of the client, or as provided in paragraph (B).
o Exceptions:
· Risk of death/bodily harm
§ MR 1.6(b)(1): may reveal if reasonably certain death/bodily harm (not required; no language about “imminent”)
§ CA B&P Code § 6068(e)(2): may reveal to prevent a criminal act that may result death/bodily harm
§ CA Rule 3-100(B): same language.
§ CA
in violation of the Rules of Professional Conduct or other law; (b) may withdraw if . . . (2) client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal/fraudulent ; (3) the client used the lawyer's services to perpetrate a crime/fraud.
o MR 3.3 (candor toward the tribunal): (a) shall not knowingly . . . (3) offer evidence that the lawyer knows to be false. If comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure . . . (b) if lawyer knows that a person intends to engage, is engaging or has engaged in crime/fraud related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure . . .
· Duty of loyalty
o Between concurrent clients
· MR 1.7(a): Except as provided by par. (b), shall not concurrently represent multiple clients:
1. Where rep. of one client will be “directly adverse” to the rep. another client (actual conflict)
2. “Significant risk” that rep. of one client will be “materially limited” by the lawyer's responsibility to others (potential conflict)
· CA Rule 3-310(C): without the informed written consent of each client, shall not concurrently represent multiple clients:
1. In the same matter if “potential conflict”;
2. In the same matter if “actual conflict”; or
3. Whose interest in the first matter is adverse to the client in the second matter
· Exceptions: Client can CONSENT to waive conflict
§ MR 1.7(b): can concurrently represent both if:
Reasonably believes that he can provide competent and diligent representation to each client;
Not prohibited by law;
Does not involve the assertion of a claim by one client against another client in the same litigation or proceeding before a tribunal; AND
Each client gives informed consent, confirmed in writing.
§ CA Rule 3-310(C): only explicitly says “without the informed written consent of each,” but see comment: “There are some matters in which the conflicts are such that written consent may not suffice.”
· “One client against another client” per 1.7(b)(3)?
§ Comment 17: requires examination of context of the proceeding.
· Can represent multiple parties in a mediation (not a proceeding before a tribunal), BUT may be precluded by paragraph 1.7(b)(1) (competent & diligent representation)
§ Klemm v. Superior Ct.: CA (and many other states) permit lawyer to represent both sides in an uncontested divorce, i.e., where both H & W are in full agreement on all issues.
