Emily Hughes – Professional Responsibility – Summer 2011
a. Background of ethics rules
a. Each Jurisdiction in the U.S. imposes on lawyers a set of rules which governs the lawyers conduct.
1. Compliance with the rule is a requirement of continued admission in the practice.
b. The American Bar Association (ABA) has created a model set of rules as a starting reference point
1. The goal is to create an effective and uniform set of rule among the states
c. MRPE has a 2 Level format
1. Level 1 are the “Rules” themselves
2. Level 2 is the “Comment” Section of the Rules
b. Spaulding v. Zimmerman
a. Facts: In the course of settlement negotiations, defense counsel elected not to share with minor plaintiff information regarding a potentially life-threatening heart condition that their doctors had found in discovery when Plaintiff’s doctor did not. After learning of this condition two years later, Plaintiff moved to vacate the settlement, arguing that he would not have agreed to the same settlement if he had been made aware of this condition.
b. Issue: Can the prior settlement order be vacated on the grounds that Defendant knew of Plaintiff’s condition when Plaintiff did not?
c. Holding: Yes
d. Rule: Duty to disclose this information?
1. Defendant’s counsel had no specific ethical obligation to disclose Plaintiff’s life-threatening condition but should have since Plaintiff probably would not have agreed to the same settlement had he known of the info.
e. Note: Plaintiff was a minor at the time of the settlement.
1. Had he been an adult, it is more likely that he would have been bound by it, although he would have had grounds for a claim against both his doctor and his lawyer for malpractice.
II. Competence and Diligence
a. Rule 1.1 Competence
a. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
b. Rule 1.3 Diligence
a. A lawyer shall act with reasonable diligence and promptness in representing a client.
c. Rule 1.4 Communication
a. (a) A lawyer shall:
1. (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
2. (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
3. (3) keep the client reasonably informed about the status of the matter;
4. (4) promptly comply with reasonable requests for information; and
5. (5) Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
b. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
d. Oklahoma Bar Assoc. v. Allford
a. Facts: In 1992, Allford was paid to represent client Mackey in the probate of his parents’ estate. The probate was still not complete in 2004 when Mackey filed a grievance with the Bar. The Bar started an investigation and asked Allford to respond to Mackey’s allegation. Allford wrote back that she was taking care of the matter and that she would keep the Bar posted, but the Bar subpoenaed Allford and she did not show up. Allford then asked the Sheriff’s department to falsify the date of service of the subpoena to show she received it the day of the deposition which they did. In a hearing with the Prof. Resp. Tribunal (PRT) she deflected blame and did not take full responsibility
b. Holding: 6 month suspension
1. Allford violated rule 1.1, 1.2, 1.3, 1.4, 4.1(a), and 8.4(a-d).
2. She had not been dilatory in pursuing a probate matter.
c. Lessons Learned: Be competent and diligent; be honest; Do not lie; Take responsibility and remorse; do not ignore.
d. Can probably be sued for malpractice
e. In re Docking – Competency
a. Facts: Docking was retained to defend 3 Korean nationals for aggravated kidnapping (felony A). His clients plead guilty to kidnapping (Felony B) and are sentenced to 10 years. The clients argued denied effective assistance of counsel because they did not understand the conditions of the plea.
b. Holding: The Judge found that Docking did not have the experience or competence to represent these men.
c. He did not provide enough interpreters to his client; Did not seek to not have them deported
d. Attorney’s should not handle cases where they knew or should have known they were not competent to handle
e. To mitigate his conduct Docking offered testimony that he was under prepared and poorly equipped to handle because only one year out of law school
f. The court ruled that the Koreans did not get a fair trial and they were let out of jail after 2 1/2 years and charges were not refiled against them
g. Could have found a mentor attorney
h. They could have cut a deal to testify against the others
i. To be successful in a malpractice claim they have to show they were actually innocent.
f. Iowa Ethics Committee v. Miller
a. Facts: Miller neglected two estates for client Hoff for 6 years and refused to respond to letters from the Ethics Committee. His client filed a complaint with committee. Later Miller admitted he had no idea how to settle an estate and he is an alcoholic (not an excuse). He also failed to cooperate with investigation.
b. Holding: Indefinite suspension for at least 3 months
c. 1.1 Competence: He has no idea how to handle a probate case
d. 1.3 Diligence: Did not figure out how to properly handle the case
e. 1.4(a)(4) Communication: Did not communicate with client
f. A lawyer should not always bill a client for the time it takes them to become competent.
1. Taking time to learn general knowledge should not be billed
2. Only case specific or unique areas of law should be billed
a. Malpractice is a negligence claim against an attorney
a. Need a duty, a breach, proximate causation, damages (or harm)
b. Errors can arise from…
a. Administrative errors, organization
b. Substantive errors
c. Damages: what client would have obtained had the lawyer preserved his claim adequately
d. Lopez v. Clifford Law Office
a. Facts: Lopez came to attorney Clifford and asked if he would represent him in the wrongful death action of his daughter less than a month after she drowned in a pool. Clifford refused to take the case and sent Lopez a letter stating that he had a 2 year statute of limitations 6 months later. (The statute of limitations was actually 1 year and Lopez missed the time limit). Lopez also was rejected by a 2nd attorney Loran who did not give or correct the SOL error. He waits a month and doesn’t take case.
b. **If 2nd lawyer gave correct SOL and/or took the case, original law firm may be off the hook**
c. The Court dismissed the malpractice claims because the trial ruled that the wrongful death claim was still viable when attorney-client relationship ended.
d. Holding: Lopez can be sued for malpractice
e. Rule: Elements of malpractice
1. The existence of an attorney-client relationship (reasonable reliance by client)
2. A negligent act or omission constituting a breach of duty
3. Proximate cause between duty and damages
f. Here: Negligence was a miscommunication with the client because by stating the two year SOL, Clifford undermined the client’s sense of urgency.
g. Have to prove client could bring suit, win it, and receive damages
h. Can someone collect punitive damages in addition?
1. Depends on jurisdiction – most say no
e. The Standard of Care
a. Definition: The lawyer must exercise the care, skill and diligence commonly possessed and exercised by lawyers in the statewide jurisdiction.
it with his partner. Miller then never called or contacted Togstad again. Togstad alleges that she reasonably relied on Millers “legal advice” that she did not have a case.
2. Holding: Togstad and Miller entered in an attorney-client relationship and Miller committed legal malpractice and an attorney client relationship existed.
3. Lawyer manifests consent or fails to manifest lack of consent (Miller)
a. Talking about a prospective clients case is manifesting consent and the client reasonably relies
4. Defendant acted negligently or in breach of contract
a. Miller did not do any research on med malpractice and did not inform her of her SOL
5. Miller’s acts were the proximate cause of the plaintiff’s damages
a. But for defendant’s conduct the plaintiffs would have been successful in the prosecution of her claim.
6. Miller should have sent a letter of non-engagement (declination letter)
a. Put in writing that you are not taking the case
c. Terminating a Client Relationship
1. Rule 1.16 Declining Or Terminating Representation
a. (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
i. (1) the representation will result in violation of the rules of professional conduct or other law;
ii. (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
iii. (3) The lawyer is discharged.
b. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
i. (1) withdrawal can be accomplished without material adverse effect on the interests of the client;
ii. (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
iii. (3) the client has used the lawyer’s services to perpetrate a crime or fraud;
iv. (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
v. (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
vi. (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
vii. (7) Other good cause for withdrawal exists.
c. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
d. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.