Fall 2010 – Professor Lonnie “Squirrely” Brown
1) Recurrent Themes
i) Competence, Diligence, Confidentiality, Loyalty
ii) Client must fully trust lawyer.
iii) Lawyer’s duty as advisor to offer candid advice and keep client informed.
iv) Client autonomy; it is the client’s case.
v) Agency/fiduciary duties
vi) Always seek advice from someone smarter than you.
vii) Criminal Counsel can always go farther than prosecutors or civil counsel.
b) Questions to Remember
i) When is there an attorney-client relationship?
ii) Is information privileged? Confidential? Work Product?
iii) Is there a conflict? Impermissible or permissible?
iv) Was the conflict imputed?
v) Do you have a duty to the court? A third party?
a) Informed Consent
i) Adequate information; explanation of material risks; reasonable available alternatives
ii) Sometimes appropriate to advise client to seek advice of other counsel.
iii) Usually require affirmative response; silence not assent.
iv) Less disclosure needed for more sophisticated clients.
v) Several rules require consent be in writing (1.7, 1.9). Some require signature (e.g., 1.8)
vi) Consent to Future Representation: Retainer/Engagment Agreement
(1) Worldspan (N.D. Ga. 1998): advance agreement for consent to conflicts
(a) High Standard: need references to specific parties/matter à probably not possible
(2) Rule 1.7 cmt 22: consent to future representation likely okay if client has own lawyer, consent limited to unrelated conflicts
(a) ABA Formal Opinion: further authorizes this distinction
(b) Not the rule in Georgia!!!
(3) Duane Morris Engagement Letter (Ga 2006):
(a) Letter should be adaptable to client
(b) Specifically limits scope to singular subsidiaries, not parent corp or other subsidiaries
(i) Despite this, court granted injunction; based on Worldspan; however, vacated order once conflicted proceeding was over
(ii) Justice: “era of flourishing companies and multi-office law firms”
(c) States no duty to inform of adverse proceedings
(i) Brown: better to send written notice
i) Isolation of a lawyer from any participation in a matter through the timely imposition of procedures w/in a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under Rules/law.
3) Client Lawyer Relationship
a) 1.1: Competence
i) Okay to take a case w/out experience, but can’t charge client for time spent learning new law
b) 1.2: Scope of Representation & Allocation of Authority Between Client and Lawyer
i) Client has absolute right regarding settlement, plea, waiver of jury trial, criminal testimony.
(1) Lawyer has authority over means, procedure, tactic; subject to R1.4.
(2) Lawyer is agent of client; even blatant, willful misconduct is imputed. à remedy is malpractice, but client is stuck w/ conduct.
(a) Admissions of lawyer can be used against the client as evidence but do not vicariously bind client.
(3) But see Jones v. Barnes (US 1983): Ds do not have Const. right to raise every non-frivolous argument on appeal; emphasis on lawyer’s professional judgment.
ii) Representation of client is not an endorsement of his views.
(1) Not your job to judge client—neutral partisan
(2) Not concerned w/ truth; immorality allowed; See Spaulding v. Zimmerman: dr discovered aneurism did not disclose before settlement
(a) BUT, nondisclosure violated candor to the tribunal (settlement w/ minor had to be presented to ct)
(3) Unbridled discretion in client selection; after that, subject to client’s whims
iii) Lawyer may reasonably limit scope of representation w/ informed consent.
(1) Sometimes must advise on other “reasonably apparent issues,” even when scope is limited. See Nichols v. Keller (Cal App 1993).
(2) Use Retainer/Engagement Agreement
iv) Cannot counsel/assist w/ crime/fraud; may discuss legal consequences of proposed conduct.
(1) Confidentiality sometimes prevents disclosure, but attorney MUST withdraw if he learns that client is engaged in a crime or fraud.
(2) Noisy Withdrawal: withdraw and disaffirm an opinion, document, or affirmation given to the client’s victim; Sometimes mandatory to avoid “assisting” the client’s crime or fraud.
c) 1.3: Diligence
i) “reasonable diligence and promptness”; “zealous advocate”
(1) Does not mean must press every advantage; stay professional, dude. More incentive to press all advantages when criminal defendant. (But see Prosecutor held to higher standard.)
(2) Cannot procrastinate
(3) duty of promptness does not preclude lawyer from agreeing to reasonable request for postponement
(4) must consult with client about possibility of appeal before ending representation
d) 1.4: Communication
i) “promptly inform” “any decision or circumstance” which requires informed consent
(1) “Extraordinarily Important” “All other rules revolve around this one”
(2) Level of information may vary depending on issue, sophistication of client.
ii) reasonably consult w/ client about means
(1) When can’t consult client, must explain afterwards (ie., objecting during trial).
(a) Means are exclusively controlled by lawyer, but means and objective have much overlap.
(2) Duty to counsel client when client wants non-permitted action.
iii) Client must be “reasonably informed” about case.
(1) Most complaints to the Bar about failure to return phone calls.
e) 1.5: Fees
i) No unreasonable fees
(1) Factors (same as Model Code): time and labor required by skilled lawyer; fee customarily charged; experience, reputation, ability of lawyer; sophistication of client
(a) Fixed Fees
(i) Flat Fees: trendy, especially w/ predictable services
(ii) Hourly Billing: most common; encourages unethical problems
(iii) Blended Rates: clients want; bills same rate for hours for all lawyers
(iv) Proportional Fee: percentage of transaction
(v) Investment Interest: popular in 90s; encourages conflicts; must comply w/ 1.8(a)
(b) Contingent Fees: percentage based on contingency; sometimes set amount
(i) Must be in writing! Show calculation; written account at end
(ii) Risk of no recovery; enables poor clients to obtain lawyer; broadens access to justice; incentive to settle early
(iii) Forbidden: domestic relations matter, criminal defendant
(2) Model Code: “clearly excessive”
(3) Doesn’t matter if client consents; duty to not overcharge, period.
ii) Must communicate to client, preferably in writing
iii) Fee disputes generally arbitrated; protection of profession, confidentiality
iv) Sharing Fees
ons: the client (even prospective), the client’s lawyer, agents for either
(a) Multiple Client Representation: privilege still protected; confidences can be shared with all clients to the representation
(i) BUT no confidentiality in subsequent adverse matters
(ii) Eureka exception: not waived when att’y erred in not withdrawing b/c of CoI
(iii) Common Interest Rule: separate lawyers w/ same interests maintain privilege (often w/ white collar crime)
1. Writing is necessary b/c want to keep information privileged from other parties and limit representation to only your client
· In Confidence: must have reasonable belief that no one else will hear/read
o Eavesdropping doesn’t affect privilege
· For the Purpose of Obtaining or Providing Legal Assistance for the Client
i) Exception: client obtain assistance or used lawyer’s services to engage in or assist a crime or fraud
(1) Advice sought must relate to crime; look to nexus (See lawyer knew of planned arson unrelated to representation)
(2) Doesn’t apply when client did not carry out intended act
(3) Must show reasonable basis to believe; proof issue can be problematic
ii) Waiver: privilege is client’s to waive; client can inadvertently waive it, but an unauthorized intentional disclosure will not waive the privilege
(1) Subject Matter Waiver: (1) Partial (information)/Selective (people) (only 8th Cir., DOJ Waivers) (2) Full/Subject Matter
(a) Fairness Doctrine: using privileged information to gain an legal advantage = Subject Matter Waiver
(2) DOJ Waivers/”Compelled Voluntary Waiver”; authorizing waivers makes one cooperative, DOJ is lenient in prosecution
(a) Not waiving privilege cannot be held against you (in theory)
(b) Corporations pissed off; Corporate Counsel stuck in bad place
(3) Inadvertent Production: results in waiver in some jurisdictions
(a) TEST: (1) reasonable safeguards in place? (2) acted promptly to rectify? (3) consideration of fairness
(i) Looking for palpable negligence; discretionary application
(b) Fed. R. Ev. 502(b): (1) inadvertent (2) reasonable steps to prevent (3) reasonable steps to rectify
(i) 502(a): never subject matter waiver if inadvertent; limited to intentional disclosures
(c) Clawback Agreements: agreement to not waive privilege if inadvertently disclosed
(i) Fed. R. Civ. P. 26(b)(5)(B): clawback agreements further efficiency in discovery
(ii) Waiver can be invoked against a 3d party, esp if ct has signed off on agreement (Fed. R. Ev. 502(e)
(d) Email Disclaimers: retains privilege if unintended recipient gets email
(e) See general duty to protect client confidences, R 1.6
(f) See R 4.4 for duty to notify sender