LEGAL PROFESSION – Brown, Fall 2009
Introduction to the Legal Profession OVERVIEW – PAGES 1-17
The legal profession is one of the last remaining self-regulated professions. “Self-regulation helps maintain independence from government domination.”
For example, in the wake of Enron, there was a lot of discussion of the SEC creating rules to govern law practice in the corporate arena. The ABA heard this, and reacted quickly, adopting new rules (Ethics Commission, 2000). Commentators say that the profession is currently suffering from a lack of professionalism – “a group pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means of livelihood. “
Remember ethics rules apply to all attorneys, whatever practice or setting.
Ethical rules vary place to place.
Policies behind the ethics rules:
Client comes first
Legal profession deserves autonomy
Bad clients are not owed protection.
Prevent “tempted attys” from acting badly.
Clients should be helped when their atty is incompetent.
Rules exist to protect attorneys, insulate them.
THE ATTORNEY-CLIENT RELATIONSHIP
“An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” Lord Chancellor Broughham
Lawyers do also have obligations to courts, adversaries, the public, partners, and associates. But a main obligation is the duty an attorney owes to his client.
The attorney-client privilege protects communications between an attorney and his client. It is closely related with the duty of confidentiality, but what it covers is more narrow than confidentiality. [The A/C privilege is the legal concept that protects communication between a client and his or her attorney. The privilege acts to keep those communications confidential.]
DEFINING THE ATTORNEY-CLIENT RELATIONSHIP
Who is a “client?” (determined by case law, not the rules)
Usually, A/C relationship is formed by agreement (which may be implied).
An A/C relationship is formed when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and (2) the lawyers fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provides the services.
May be formed by an intermediary between the firm and the client, if firm knew that advice would be relayed
Money does not have to change hands! (Though if it has, good evidence of relationship.) [Atty cannot be paid by A to represent B, because who is client? A or B?] CTS consider what the “client” might reasonably have believed under the circumstances.
Can occur thru a website
Can occur thru 900# “lawyer help line”
When certain potentially misunderstood situations occur, attorneys required to clarify (MR 1.13(f), MR 4.3)
When relationship has ended, attorney should notify client
Not all clients are “people” – maybe corporations, class
NO CLIENT where fugitive defendant is appointed legal counsel acts without defendant’s consent
What do Lawyers owe Clients?
Competence (may be a basis for malpractice liability)
Lawyers are required to provide clients with “competent” representation, defined as “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
Incompetence may be the result of inexperience, ignorance, or a lack of time.
Lawyers that hold themselves out as specialists will often be subject to a higher standard of care.
An error does not necessarily equal incompetence. The lawyer’s performance is weight against the skills of other lawyers in the jxn.
Confidentiality & Attorney Client Privilege (confidentiality rules differ a lot from state to state)
Ethical rules create a category of confidential information from the client or from others that, absent exception, an atty may never reveal unless doing so benefits the client. Misuse of such info can be a crime (think “insider” trading) . (“ETHICALLY PROTECTED”) Evidence law creates A/C privilege when acts as a shield for communications between a client and the client’s atty. (Or their agents). (“PRIVILEGED”) A subpoena can reach confidential information but not privileged information.
Why have such rules? Client candor, protect client autonomy, respect confidences just because it is right to do so… but where’s the line? When should there be less protection for client and protection for others from bodily/financial harm?
DEFINED: A/C privilege: (1) a communication [underlying facts are not protected], (2) made between privileged persons [included agents of either client or attorney], (3) in confidence [must be alone!], (4) for the purpose of obtaining or providing legal assistance.
“The Innocent Lifer” Alton Logan – man wrongly imprisoned for 26 years; real killer’s attys knew their client was the killed but could not tell because their client’s confession was protected by confidentiality rules
HYPO PAGE 30 / PAGE 31
You have to be careful what you say when you approach a potential new client. In Perez, a truck driver hit a school bus. His employer’s attorneys visited him, telling him that they were “his attorneys too.” They later turned in the driver’s statement to the DA. The court held that an A/C relationship had been formed because the statement was obtained after the driver was told that it would be kept confidential.
A/C privilege and the duty of confidentiality protect information from a potential client, even if the client is not retained.
Exceptions to Privilege or Ethical Duty
In several circumstances, attorneys may be permitted (or even required) to reveal information that clients wish to protect.
TIME TO KILL CLIP
Self-defense to legal claims against attorney – an attorney may reveal confidential information to the extent the lawyer reasonably believes necessary to defend himself against criminal or civil charges. Atty does not have to wait until the action is filed if she is aware of the pendency of the action.
Collection of fees – when necessary to collect fees in an action
Waiver – may be implicit or explicit. Waiver will be inferred when client puts confidential communication in issue in a litigation. If a client reveals all or part of a confidential communication, privilege may be waived.
i. Eighth circuit (Arkansas, North and South Dakota, Iowa, Minnesota, Missouri, Nebraska) recognizes “partial waiver” and allows a disclosure to waive the privilege only as to what was disclosed. Majority of jxns, however, recognize subject matter waiver – disclosure waives privilege as to all information of the same subject matter as the disclosure.
ii. A lawyer’s communication with his staff or experts does not waive the privilege. (Similarly, agents of clients may discuss the advice in order to implement it.) ATTYS MAY WAIVE BY ACCIDENTIALLY PRODUCING PRIVILEGED OR CONFIDENTIAL INFORMATION.
iii. DOJ: Current rule: no company is obligated or can be asked to waive privilege or work-product protections, though they may choose to do so in the course of investigations. But since prosecutors can still “give credit for” waivers, there is still a lot of pressure to waive.
“To comply with the law” – despite Rule 1.6(b)’s use of the word “may,’ this exception seems to be mandatory.
Crime-fraud exception – communications are not privileged (thou may be ethically protected) when client has consulted the lawyer in order to further a crime or fraud (including legal misconduct outside the traditional definition of “fraud”), regardless of whether the crime or fraud is accomplished and even though the attorney is unaware of the client’s purpose and does nothing to advance it.
i. Trial court may review the allegedly privileged information in camera when deciding if the opponent of the privilege has met the burden of proving the crime-fraud exception.
ii. Crime-fraud exception will likely only apply when the communication seeks assistance in the future criminal conduct. Purcell (client said “I’m going to burn this down. Atty told police, subpoenaed. Atty refused to testify, citing A/C privilege. Privilege stood.)
Future crimes or frauds – confidentiality rules may allow (or even require) lawyers to reveal client’s criminal conduct, but rules vary widely from jxn to jxn.
i. Code allowed permissive disclosure of client’s intent to commit any crime.
ii. Rule 1.6 permits disclosure to prevent death/substantial bodily injury
iii. Some states require disclosure to prevent serious violence or substantial financial harm
Noisy withdrawal – (not technically an exception) a lawyer, when withdrawing for reasons of criminal activity of his client, may be allowed (or even required) to alert other that she retracts her representations – atty does not say why, but the withdrawal is supposed to put parties dealing with the client on notice
Identity and fees – the client’s identity and the source and/or amount of legal fees are not usually privileged because they are not consider “communications.”
i. May be a “special circumstance” situation where client identity/fees are privileged:
1. Legal advice exception – when disclosure would implicate the client in criminal activity for which legal advice was sought
2. Last link exception – when disclosure would provide the last link in a chain of incriminating evidence against client
3. Confidential communication exception – if disclosure would require disclosure of confidential communications
Public policy?? – A/C privilege may give way to other values in certain situations. Potentially, need, relevance and materiality, and lack of less intrusive source
i. But perhaps these cases are rare – SuCo wouldn’t allow permit posthumous disclosure from client’s atty when client committed suicide (Vincent Foster, Whitewater scandal)
Lack of actual professio
as apparent here.
McNulty – Defendant had a default judgment entered against him. He challenged an order of the court denying his motion to vacate the default judgment, arguing that his attorney’s neglect should not be imputed to him. CT: Normally, the conduct of an attorney is imputed to his client – allowing otherwise would be inconsistent with the idea of representative litigation. TCT properly found that the Defendant had made no showing of diligence that would warrant relieving him of the default judgment. [So, perhaps if the (sophisticated) client had been more diligent in making sure the attorney was doing his job, CT would have granted relief from default judgment.] Binding the Client
Hiring an atty means the client is delegating authority to speak and act to the atty. If atty acts improperly or negligently, the client may still be bound. Client may possibly recover damages. Rule 1.2(a) gives the client the unqualified right to decide whether to settle a civil matter or enter a plea in a criminal matter. Clients may delegate their authority to their attorneys to settle civil matters.
Some courts have held that atty has “inherent agency power” to settle in some circumstances.
If lawyer settles without actual or inherent authority, may still have apparent authority b/c client has done something that has led the other party to conclude reasonably, though mistakenly, that the lawyer has actual authority to settle. [Consider: when a lawyer without actual authority settles, who takes the risk? If jxn recognizes apparent or inherent authority, the client will be bound. If apparent/inherent authority is not sufficient, then the risk falls on the opposing party because the settlement may not recognized.] Vicarious admissions – lawyer’s statements may be the vicarious admissions of a client (per evidence law); Client may try to disown the statements, unlike judicial admissions, which bind the client.
i. McKeon – whether a lawyer’ prior trial statement may be used vicariously against a client at a new trial was dependent on the following balancing test: (1) the prior statement must involve an assertion of fact inconsistent with similar assertions in a subsequent trial, (2) the inconsistency should be clear and of a quality which obviates any need for the trier of fact to explore other events at the prior trial, (3) some participatory role of the client must be evident, and (4) the court must determine that the adversary’s proposed interference from the inconsistency is fair and that there is no innocent explanation for it.
Procedural defaults – attorney’s failure to raise criminal defendant’s constitutional rights usually prevents the defendant from asserting those rights collaterally, unless the error equals ineffective counsel, where the client would not be bound.
Confidentiality rules in Agency – ethics rules are more focused, but agency law also prohibits the lawyer’s use of client’s confidential information
Fiduciary Duties – Attorney’s fiduciary duty to their client arises after the formation of A/C relationship. Because of this fiduciary relationship, atty must place the client’s interests about their own. When an attorney’s interests (or 3rd person’s interests) create a significant risk to the attorney’s fiduciary obligations, the attorney has a conflict of interest. Atty must give up the matter unless obtain client’s informed consent.
i. Rationales: client has began to depend on atty’s integrity, atty must have acquired information about the client, many clients are not in financial position to change attys
Loyalty and Diligence – Duty of loyalty requires atty to pursue and be free to pursue the client’s objectives unfettered by conflicting responsibilities or interests. This duty survives the termination of the A/C relationship. Requirement of diligence is an obligation to pursue client’s interests without undue delay. “A lawyer must at with commitment and dedication to the interests of the client and zeal in advocacy upon the client’s behalf. A lawyer is not bound to press for every advantage that might be realized for his client.”