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Professional Responsibility
University of Iowa School of Law
Hughes, Emily



FALL 2012

General Principles and Consequences of Violating Disciplinary Rules:

Spaulding v Zimmerman (1962): Failure to Disclose Injury to Other Party

– P alleges that D should have revealed the injury to him before the settlement; thus, the court has the discretion to put aside the settlement because he was a minor when it was made

– D alleges that they should not be required to turn over adverse information

– P’s attorney had no obligation to disclose to other side D’s injury

o Attorney was wrong because he allowed his client to settle w/out informed consent

– Had he been an adult at time of settlement, it is more likely that P would have been bound by it,

o although he would have had grounds for a claim against both his doctor and his lawyer for malpractice

State of Oklahoma Bar Ass’n v. Allford (2006): Falsifying Data

– D asked two deputies to falsify the date of service of the complaint against her so she could get more time

o At the disciplinary hearing, D lied about asking to falsify the date of service

– Court held that the Bar’s recommendation of a private reprimand was inadequate considering the conduct in this case because D failed to acknowledge the Bar’s authority to oversee her practice and she never accepted responsibility for her actions

o Had an attitude of annoyance over the whole proceeding

o Attempted to avoid it by completing the probate

o No honesty or integrity

Duty of Competence

Model Rule 1.1: Competency

– A lawyer shall provide competent representation to a client.

– Competence representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation

Relevant Factors of Competency:

– complexity and specialized nature of the matter,

– lawyer’s experience

– lawyer’s training and experience in the field in question

– preparation or study lawyer can give to the matter

– One possible consequence of incompetence is civil liability (MALPRACTICE)

Model Rule 1.3: Diligence

– A lawyer shall act with reasonable diligence and promptness in representing a client

Model Rule 1.4: Communication

– A lawyer shall

o promptly inform a client of any decision which requires informed consent

o Reasonably consult with client about the means for which objectives are to be accomplished

o Keep client informed about status of matter

o Promptly comply with reasonable requests for information

o Consult with Client about relevant limitations on lawyers conduct when client expect assistance that is not in compliance with law or Model Rules

– Explain a matter to the client when necessary to make informed decisions regarding representation

In re Docking (1994): Incompetency Issues

– TC found that D did not have the experience or competence to represent clients in felonies. He failed to property investigate. Erroneously advised clients on the law, and failed to request that clients not be deported.

– Court holds that D be disciplined for violating rules because he was not competent in the case

o If you don’t know what you are doing ASK FOR HELP; get a mentor

§ Make sure you understand the law

§ May need to hold off on billing client to get up to speed

o Docking failed to inform clients of pitfalls in joint representation

Committee on Prof. Ethics and Conduct of the IA State Bar Ass’n v. Miller (2005)

– D was a lawyer designated as an attorney for an estate. Title problems arose on some land and D made no effort to cure them. In addition, he failed to meet deadlines for filings and testified he was an alcoholic who had only been sober for 9 months

– Court holds that D was not competent to handle the estate matter

o In addition, D failed to cooperate with the legal ethics investigation because he did not respond to the committee’s letters


– Elements

o Duty, breach of duty, proximate causation, and damages

Lopez v. Clifford Law Offices, PC (2005): Failure To Advise of SOL

– D informed P that he would be unable to continue representing him and incorrectly advised P of when the statute of limitations would run

– Court holds that P’s reliance on D’s parting advice was not unreasonable and gave the impression that P had more time to file a claim

o Incorrect advice was the negligent conduct

o Proximate cause is here too and there is no superseding cause

Barcelo v. Elliot (1996): 3rd party beneficiary; will and trust

– Lawyer negligently drafted a will and agreement for a client which was to benefit Ps.

o P argues they were owed a duty of care under tort theory, or may recover under a third-party beneficiary contract theory

– Court holds that D owes no duty to beneficiaries under a will or trust (minority rule)

o Inevitable problems with disappointed heirs attempting to prove that D failed to implement T’s intentions

o May effect how lawyers deal with their clients, like forcing them to properly execute a will before they are ready

§ Bright-line privity rule is easier to deal with

Mazon v. Krafchick (2006): attorney v attorney malpractice suit

– Dispute arose when the “innocent” attorney sued his co-counsel to recover his expected contingency fee.

– P claims he should be able to sue D because otherwise, a ban would undermine public confidence in the legal system because co-counsel are not liable to each other

– Court holds that there is no duty to protect prospective fees and thus, no duties exist between co-counsel that would allow recovery for lost or reduced prospective fees

o Would create potential impermissible conflicts

o Client’s interest is paramount in every case

o Co-counsel might develop a self-interest in preserving the claim for the prospective fee, even when the client’s interest demands otherwise

o Provides a clear message to each counsel that they are entirely responsible for diligently representing the client

§ Promote due diligence in seeking to work with co-counsel

Ang v. Martin (2005): malpractice in criminal cases

– D attorney did a bad job and almost had them sign a guilty plea, telling them that the female would be raped in prison

o Defendants allege they should not have to prove they were actually innocent in fact to prevail in malpractice

– Court holds that defendants are required to prove by a preponderance of the evidence that they were actually innocent of the underlying charges to prevail in a malpractice suit against a criminal attorney

o If they are not innocent, their own bad acts, and not the attorneys, created the harm

o Cannot meet the proximate cause burden unless they are innocent

o Also will prohibit criminals from benefitting from their own bad acts, maintain respect for the CJS, remove the chilling effect on the defense bar, and prevent suits from guilty defendants would could have gotten a better deal

Ineffective Assistance of Counsel

objectives of the representation and shall consult with the client as to the means by which they are to be pursued

– A lawyer shall abide by a client’s decision to settle a matter

– Lawyer shall abide by client’s decision as to the plea to be entered, whether to waive jury trial, and whether the client will testify

– Representation does not constitute endorsement of the client’s activities

– Lawyer may limit scope of representation if client gives informed consent

o Unbundling provision

o Comment [7]: must be reasonable under the circumstances

– Lawyer shall not counsel a client to engage in or assist in conduct lawyer knows is criminal or fraudulent but may discuss the legal consequences of that conduct with the client

2 types of Clients

1) Intentional Clients

2) Accidental Clients; think you are their attorney, but you do not

a. No lawyer wants to have an accidental client

Togstad v. Vesely, Otto, Miller & Keefe (1980): Accidental Client

– D told her that he did not think she had a case, but he would discuss it. He then sent her a letter that they had come to a conclusion that there wasn’t a case. No fees, no billing, end of business

o T did not consult another attorney for another year and claims she did not do so because D gave her legal advice that she did not have a case (SOL ran)

– Court holds that T sought and received legal advice from D under circumstances which made it reasonably foreseeable to D that T would be injured if the advice were negligently given

– Ways to avoid an accidental client

o Follow up letter suggesting to find another attorney

§ Most malpractice insurers require this

o Obligation to advise about SOL

o Clients sending emails to law websites could form a unilateral contract and could form an accidental client

§ Depends if it promises a follow up or claims that you would love to be their attorney

DeVaux v. American Home Assurance (1983): Vicarious Liability to Employee Negligence

– P wrote a letter to D asking for legal assistance in regard to a possible tort claim. D did not discover the letter, however, before the SOL ran. His secretary misfiled the letter and D never returned P’s calls over the years. P then sued D for malpractice.

o P argues that secretary had actual authority to take the actions she did and her knowledge of P’s request of assistance can be imputed to the attorney

§ If she was an agent, D had constructive knowledge of her knowledge

– Court holds that it is a question for the jury whether the attorney allowed his secretary to act as she did and whether he knew what she was doing

o An attorney who places his lay employees in a position which may deceive prospective clients as to his ability to represent them may be liable for malpractice and negligence of those employees