PROFESSIONAL RESPONSIBILITY
Prof. Diane Mazur, Spring 2005
Remember, Lawyers are not charged with violation of the comments; they are charged with violation of the Rules.
What creates an attorney-client relationship? (Rules: Scope p.12)
Request for legal advice
Receipt of advice or agreement to provide it
Reliance
I. Rule 1.0 Terminology
A. Belief, or believes
B. Confirmed in writing
C. Firm or law firm
D. Fraud or fraudulent
E. Informed consent: Can the lawyer provide adequate information to allow the client to give consent (1.6)? May require waiver from another client in order to reveal 1.6 information necessary to allow client to make informed decision about representation.
F. Knowingly, known, knows: ACTUAL knowledge; may be inferred from circumstances.
G. Partner
H. Reasonable or reasonably
I. Reasonable belief or reasonably believes
J. Reasonably should know
K. Screened
L. Substantial
M. Tribunal
N. Writing or written
Comments:
1. confirmed in writing
2. firm – regarded as one if seen as one by the public
3. fraud – has purpose to deceive (not negligence) & no damage, reliance or misrepresentation necessary
4. informed consent – see 1.2(c), 1.6(a) & 1.7(b)
II. Lawyer’s Duties to Client
A. Competence (Rule 1.1) Rule 1.1 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comments:
a. Legal knowledge and skill
b. Thoroughness and Preparation
1. Legal Knowledge
2. Skill
3. Thoroughness
4. Preparation
a. Must not neglect a legal matter
b. Must not take on matter attorney knows he is not competent to handle
B. Diligence (Rule 1.3)
1. Shall act with reasonable diligence and promptness
a. No procrastination (e.g. overlooking Statutes of Limitations)
b. Act as zealous advocate
c. Carry matters through to conclusion
d. Terminate relationship (preferably in writing)
2. Must exhaust ALL measures for client? Comment: “A lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.” Does not require the lawyer to act with offensive tactics. It does not rule out consultation, but it sets out the idea a lawyer has professional discretion not to push the envelope.
C. Confidentiality (Rule 1.6)
1. Absent consent of client or when doing so is impliedly authorized to carry out representation, lawyer must not reveal information relating to representation of client.
2. Exceptions:
a. Prevent reasonably certain death or substantial bodily harm
b. (Enron) prevent client form committing a fraud or crime that is reasonably certain to result in substantial injury to the financial interests or property of another AND in furtherance of which the client has used or is using the lawyer’s services. (Key: prevent the fraud)
c. (Enron) prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud IN FURTHERANCE OF WHICH THE CLIENT HAS USED THE LAWYER’S SERVICES.(Key: prevent injury to victims)
d. Establish claim or defense for controversy between client and attorney
e. to secure legal advice about the lawyer’s compliance with these Rules
f. to comply with other law or a court order.
3. Continues after client-lawyer relationship is over
4. Physical evidence not privileged, but communication about its whereabouts is; so: Must turn over evidence in possession
5. HYPO: Client with HIV – The thought process needs to be: How likely is it that your disclosure is going to prevent this harm? How likely is it that the harm is going to occur? What is the nature of the harm that could occur, and under the rule, can it be disclosed?
a. Sometimes maintenance of attorney-client confidence is a more powerful duty than the power of disclosure.
b. Use your relationship, the value you have, to help situation. Talk to your client about why he thinks he has HIV and if he has been tested.
6. Re: Gun in car case – Approach prosecutor with terms in a hypothetical scenario. Because disclosing the knowledge of the gun will implicate your client in the convenience store robbery, maybe the prosecutor would strike a deal.
a. Present your client with the long-term possibilities, and that logically, his best option is to tell about the gun before someone finds it and even get hurt in the process
b. A lawyer’s mission is not to be a public enforcer of all that is good and right. A lawyer’s mission is to serve client by abiding by all that is good and right.
D. Safekeeping Property (Rule 1.15)
1. Client’s property held separately
a. Funds – separate trust account
(1) Interest
b. Records – kept for at least 5 years
2. Prompt delivery of funds due client to which client entitled
3. Amount in dispute kept separate until dispute resolved
· Outline of Rule:
a. “Lawyer shall hold property of clients or 3rd persons that is in lawyer’s possession in connection with a representation… in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with consent of client or 3rd person. Other property shall be identified… and appropriately safeguarded. Complete records … shall be kept by lawyer & … preserved for 5 years
d. Rule 1.2(d) – lawyer can’t assist (client) in conduct the lawyer knows to be fraudulent.
e. Rule 4.1(a) – Truthfulness in Statements to Others: Lawyer shall not knowingly make a false statement of material fact or law to a 3rd person.” Lawyer signing escrow agreement is a false statement, because it affirms the existence of the $10,000 he knows is not there.
E. Attorney as Witness (Rule 3.7)
1. Generally, cannot be advocate if likely to be necessary witness
2. Exceptions:
a. Testimony on uncontested issue
b. Testimony relates to nature and value of legal services rendered
c. Substantial hardship on client if disqualified
II. Client’s Rights
A. To Be Informed/communication (Rule 1.4) A lawyer SHALL:
1. Promptly inform client of any decision or circumstance with respect to which the client’s informed consent is required;
2. reasonably CONSULT with the client about the MEANS by which client’s objectives are to be accomplished.
3. keep the client reasonably informed about the status of the matter
4. Explain matter sufficiently to allow client to make informed decisions
5. Promptly comply with reasonable requests for information (including returning telephone calls).
6. relay settlement offers unless client has already indicated such an offer will be acceptable or unacceptable.
7. consult with client about limitations imposed by rules of professional conduct.
8. Special circumstances:
a. May delay information when client likely to react imprudently
b. Child or incompetent person (see 1.14)
c. Organization as client – communicate with appropriate officer (see 1.13)
9. Three concepts of circumstance that change the relative authority of lawyer client relationship:
a. “shall abide by”
b. “shall consult with”
c. “may take action as is impliedly authorized”
10. Lawyer must recognize what decisions the client is authorized to make and supply the client with the necessary information he needs to make a decision on an informed basis.
Nichols v. Keller: Lawyers hired to handle a workers comp claim also had a duty to advise client about his right to sue 3d party, and that clock was running on SoL. See also 1.2 (duty to consult about means; to limit scope if reasonable
