PROF. RESP. SPRING 2011 HUGHES
Lawyer Rules and Ordinary Morality
Spaulding v. Zimmerman- two families in auto accident- Attny has own medical work done and shows heart problem- never tells other side. They settle (w/o knowledge)-
RULE: should always ask other side to see all relevant. The other side doesn’t have a duty to inform the other side. But must give it if they ask.
1.0(e)- informed consent- should be reduced to writing.
-extends to former clients, concurrent client, prospective client.
SOURCE OF LAW
A. Rules- MPRE tests the model rules, Not the code.
1. Canons of Professional Ethics (adopted in 1908)
2. Code- goal to provide effective template for jurisdictions looking to adopt codes, create uniformity among states PR rules (adopted 1969)
i. Canon- brief broad statements
ii. Ethical consideration- principals to rely on in specific situations (model how to follow)
iii. Disciplinary rule- what to look at when u get in trouble
3. Rules- “Kutak commission created MPRE (approved in 1983).
B. Specialized Regulation of Particular Practice Areas
1. Sarbanes Oxley
2. Circular 230
3. Patent and Trademark Office Regulations
4. BK code
5. Rule 11 and other sanctions
6. Precatory Standards
C. Sources of Guidance
2. Ethics Opinions- ABA issues advisory opinions about specific issues or problems.
3. Restatement of the law governing Lawyers
CONSEQUENCES OF VIOLATING DISCIPLINARY RULES
A. Sanctions and Procedures-
ABA made “standards for imposing lawyer sanctions” recommending the punishment for the misconduct to promote uniformity.
a. Disbarment (most severe)- not always permanent, can seek reinstatement depending on jurisdiction
b. Suspension- removal for some period of time
c. Reprimand- public or private
d. Restitutionary sanction- ex. Returning money to client when improperly taken, cost of disciplinary proceeding
e. Other- can require lawyer to obtain malpractice insurance, or require lawyer to pay malpractice judgment to client (some disagree)
f. DO NOT IGNORE BAR LETTER
B. Getting into trouble in disciplinary proceeding
a. Oklahoma ex rel Oklahoma bar assn.. v. Allford- Attny failed to probate client’s estates and didn’t communicate w/ client. When client filed grievance w/ BAR, they sent letter. She never responded, and didn’t appear for deposition (asked sheriff clerk to falsify date of service of her subpoena).
i. HELD: suspended for 6 months. Failed to cooperate w/ bar’s investigation. Disrespected court’s authority to oversee her practice and investigate complaints against her.
DUTY OF COMPETENCE (FOR BOTH CLIENT AND ATTNY)
A. Ethical Rules Regarding Competence
a. MODEL RULE 1.1- Competence- lawyer will provide competent representation (legal knowledge, skill, and preparation necessary for representing).
b. In re Docking- young lawyer representing Korean nationals in major criminal case.
i. HELD: Didn’t provide w/ reasonable effective AOC. Disciplined censure.
ii. Concurrence: he did screw up but should not take this opinion to mean that a recent law grad is NOT competent to handle a major crim case.
iii. NOTE: if don’t know about how to handle something, ask another local attny.
c. MODEL RULE 1.3- Diligence- lawyer shall act with reasonable diligence and promptness in representing client.
d. Committee on Prof Ethics and Conduct of Iowa State Bar Assn. v. Miller- lawyer took on a estate probate case he didn’t know how to do. He didn’t respond to the 3 investigation letters by the ethics board.
i. HELD: ethical violations (1) handling legal matters he wasn’t competent to, (2) failed to cooperate w/ ethics investigation. Disciplined by indefinite suspension.
ii. NOTE: Be honest, complete disclosure and cooperative with the ethics board investigation.
e. MODEL RULE 1.4- Communications- lawyer will promptly tell client of any decision/circumstance and keep them informed, reasonably consult w/ client about how to accomplish their means, and explain what they need to know.
**Violations of Rule 1.1 usually come with violation of 1.3 and 1.4
DUTIES TO CLIENT
a. Elements of Claim (tort negligence claim)
i. Duty-took on client (establishing client/duty relationship)
ii. Breach- gave incorrect information and did not correct
iii. Causation- proximate cause (would have gotten but for)
iv. Damages- (most courts don’t give punitive damages- since its meant to deter attny from doing it again, can’t shoulder that on the attny)
*what claims are made? Losing filing, failing to file, failing to determine deadline, failing to apply law properly, inadequate discovery/investigation.
b. malpractice insurance- most claims are “claims made” insurance- during the time period the claim is brought against you.
c. Lopez v. Clifford Law- Man’s daughter drowned in pool. saw attny that gave him the wrong SOL- the new lawyer filed after SOL. ATTNY GAVE WRONG SOL.
i. Lawyer should know what client would have collected if they won their case FOR HIS OWN DEFENSE. HE has to show that the case was not win-able/ no damages or recovery available.
d. Standard of Care- to exercise the care, skill, and diligence commonly possessed and exercised by lawyers in the jurisdiction.
e. Who can claim malpractice?
i. Minority view (only the client)
ii. Majority view (other people associated w/ the case)
B. Ineffective Assistance of Counsel (IAC)
a. Who can claim (IAC) in criminal defense?
i. Minority view (must show innocence)
ii. Majority view (must show conviction was overturned)
b. Strickland v. Washington-
i. TO MAKE CLAIM- MUST SHOW-
1. Counsel’s performance was deficient (below objective standard of reasonableness)
2. Error must prejudice D’s ability to receive a fair trial
ii. In death sentence- must show reasonab
tice to client, allow time for hiring new attny, giving all papers and property back to client, refunding any advance payment that has not been earned.
i. Kriegsman v. Kriegsman- Attny quit in middle of divorce action b/c client couldn’t pay for it.
1. HELD: attny must continue to represent her to the end
2. RULE: when attny accepts retainer from client, they agree to see matter through to the end, they can’t just abandon case w/o just cause or client’s consent.
a. RULE 1.2- limiting the scope of rep just as long as she agrees.
3. NOTE: avoid this situation by being honest about the fees, make agreement to work for up to certain hearings, or have jr. associate working on the case instead of the Sr partner, or work probono
ii. Allison v. State- attny withdraws from case w/o telling court. His client didn’t pay or communicate w/ him, so attny withdrew case.
4. HELD: lawyer had just cause to terminate representation, the ONLY problem is that he didn’t tell the court. Punishment= FINE (modest to not deter future attnys from taking cases w/ little pay, but want to warn other attnys).
5. RULE: if attny already appeared b4 court for client, they should get court’s permission to withdraw (otherwise, sanction w/ fine)
6. NOTE: Ct’s opinion (ETHICAL reason)- attny should assume duty to everyone in need of legal service even if they can’t pay.
b. Fees on Termination
MODEL RULE 1.16(a)(3) shows how client controls his participation in the AC relationship- requires attny to withdraw if client fires him.
Difficult to figure out what the attny should be paid when it was a contingent fee agreement. (If contingency happens, 1. Paid entire contingency 2. Paid in quantum meruit QM (reasonable value of services), 3. Paid nothing).
i. Rosenberg v. Levin- terminated attny says he should get 55K for his services. Contract fee was 10K fixed fee, w/ contingency for 50% of recovery.
1. HELD: quantum meruit limited to max fee set in initial services contract. (POLICY: client will be penalized for discharge, attny gets more than he contracted for).
2. Full K price- most rational since both agreed on, prevents client from profiting from own breach of K.
3. QM rule- NY rule (accrues on discharge by client, since its unfair to make attny’s right to compensation based on performance he has no control over) CA rule (accrues when contingency happens, since client can be poor and unduly burden to force him to pay fee if no recovery)