Professional Responsibility Outline
Professor D. Gottlieb Fall 2003
If Lawyer Client Relationship Exist?
Formation
Nature of Lawyer – Client Relationship
i. Intake Interview
1. normally free to build rapport
2. start with broad questions and move to leading, detailed questions
ii. counseling
1. traditional – lawyer directs clients
2. participatory – client participates in decision –making and responsibility
iii. lawyer must tell client with absolute certainty whether lawyer will take the case or not
1. court will always accept the client’s version of the intake interview because the lawyer should know the law
2. lawyer should run a conflicts check
iv. attorney by estoppel
1. if reliance by client to his detriment and
2. reasonable person would rely on the advice given
3. then court will find the attorney client relationship
Contract and Agency law
i. Settlement authority
1. lawyer must have authority to settle cases on behalf of the client
a. express authority
b. implied in law
i. applicable to government attorneys
c. apparent authority (implied in fact)
i. words or deeds by the client
ii. causes 3rd party to reasonably believe
iii. that the attorney has client’s authority to settle the case
2. appellate discretion
a. lawyer has the discretion to determine which issues will be argued on appeal
b. lawyer does NOT have discretion whether to appeal the case or not
3. plea Bargains
a. lawyer MUST have the express authority to negotiate a plea bargain on behalf of the client
Models
i. fiduciary model draws on a legal and professional tradition that views a client as dependent upon the lawyer’s skills and knowledge.
1. The lawyers becomes a fiduciary expected to put the client’s interest ahead of other interest especially the lawyers own self interest
ii. Market model views the relationship between lawyer and client as a consensual exchange that benefits both lawyer and client
1. this assumes that a client can select an appropriate person to provide needed services
iii. regulatory or public utility model views lawyers as quasi-public officials performing important public functions
1. this perceives dispute resolution and other legal task as so vital to the community that they must be closely regulated to serve public objectives of legitimacy
Togstad (p.457) – demonstrates that a lawyer’s interaction with a potential client may invoke some of the lawyer’s duties to the client, such as confidentiality or due care without becoming a full-fledged representation
Termination
Rule 1.16 – mandatory and permissive withdrawal
i. Relation to withdrawal, states that lawyers shall withdrawal for violating any other “law” which covers breach
Rule 1.16 (a) a lawyer shall not represent a client or if already representing a client shall withdraw if
i. Representation will violate rules of professional conduct or other law
1. law is broader here than other parts of the code
ii. lawyer is physically or mentally unable to represent the client
iii. or the lawyer is discharged from representation
rule 1.16 (b) permissive withdrawal unless required by 1.16 (c) a lawyer May withdraw if
i. withdrawal will not be adversely effect the interest of the client or
1. client persists in course of conduct that involves lawyer’s services and lawyer reasonably believes the conduct is fraudulent or criminal
ii. client has used lawyer’s services to perpetrate a crime or fraud
iii. client insists on pursuing repugnant or imprudent objections
iv. client fails to fulfill obligation regarding lawyer’s services and client had notice that lawyer would withdraw if client did not fulfill obligation
v. representation will unreasonably burden the lawyer financial or representation made unreasonably difficult by the client
vi. other good causes shown
rule 1.16 (c) court order to represent
i. lawyers shall represent client if
1. court orders lawyers to do so even thought good cause for terminating representation exist
a. courts may allow withdraw if counsel can be replaced
b. criminal causes is less likely to withdraw
c. in civil cases, easier to withdraw if closer to the beginning of representation
ii. rule 1.16 (d) After Withdrawal
1. lawyer shall protect interest of the client BUT
2. does not mean lawyer can protect client’s criminal or fraudulent behavior
Fees upon Termination
If a client has just cause for terminating the lawyers, the lawyer gets snot compensation
i. OR alternatively if a client has just cause for terminating the lawyer, still gets compensated at the contract rate
1. MODERN VIEW – lawyer gets
a. The contact amount or
b. Quantum meriut (keep track of your hours)
2. if the client loses
a. courts are split as to whether the lawyer gets anything.
Scope of Authority
Rule 1.2 (a)
i. Lawyers Shall:
1. abide by a client’s decisions concerning the objectives of representation
2. Consult with the client as the Means by Which they are being pursued
3. Abide by client’s Decision to Settle
4. In Criminal Cases and After Consultation with Lawyers, lawyers shall abide by client’s decision to:
a. Enter a plea
b. Waiver jury trail or not
c. To testify or not
5. If lawyer Disagrees with client’s decisions
a. Lawyer may withdraw as counsel
b. Or document that he has advised his client contrary to what the client decided to do
i. This covers the lawyer from future litigation
Rule 1.2(b)
i. Representation of a client including representation by appointment
1. does not constitute endorsement of client’s political, economic, social or moral views or activities
a. ethics of detachment
i. everyone deserves a defense
ii. representation of clients whether we agree with their views or not prevents arbitrary practices by police and prosecutors
Rule 1.2 (c)
i. Limiting Objections of Representation
1. a lawyer can limit the objectives of representation if
a. client consents AFTER consultation
i. practical reasons to limit representation
1. lawyer does not want to be responsible for the client’s acts
Rule 1.2(d)
i. Crime or Fraud
1. a lawyer shall not knowingly
a. counsel or assist a client to engage in crime or fraud
2. a lawyer may
a. discuss legal consequences of any course of conduct with a client and
b. may counsel or assist a client to make a good faith effort to determine the validity, scope and meaning or application of the law
3. Stay away from the border line
a. Rule only talks about “criminal or fraudulent” conduct
i. Arguably lawyer can counsel or assist client to (but look to 1.16(b)(1)
1. breach contract
2. violate environmental laws
3. violate regulatory laws
Rule 1.4 – Communication
i. A lawyer shall
1. keep a client reasonably informed and
2. promptly comply with reasonable request for information
ii. a lawyer shall
1. explain a matter to a client to the extent reasonably necessary to permit the client to make informed decision about representation
Agency Law
Sixth Amendment
i. Provides in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel
ii. Jones v. Barnes (p.480)
Be Competent
Tort of Malpractice
Also look to rule 1.8 (h)
Duty
i. A duty is formed by the Attorney – Client Relationship
ii. Duty to third parties may be formed by
1. negligent misrepresentation where there is noprivity requirement
ii. Rule 1.6 (b) exceptions
1. a lawyer may reveal information
a. ABA is permissive not mandatory disclosure
b. If Lawyer reasonably believes necessary
i. 1.6(b)(1)
1. to prevent client from committing a criminal act
a. criminal act must be likely to result in imminent death or substantial bodily harm
i. reasonably likely that the client will commit the act
ii. Client Tells you AND
iii. Client must be the one who commits the act
b. Criminal Act must be in the future
c. Imminent is not defined, but look to the facts
ii. 1.6(b)(2) to establish a claim or defense
1. on behalf of the lawyer if the lawyer sues the client
a. to a criminal charge or civil claim against the lawyer based upon client’s conduct or
b. to respond to allegations in any proceeding concerning the lawyers’ representation of the client
c. rule 1.6 never requires disclosure because it is permissive but
i. can’t assist a crime or fraud under rule 1.2
ii. should withdraw under 1.16(a)
2. differences between Kansas and Majority
a. Under model rules you can’t disclose client fraud under Kansas laws you are allowed to disclose fraud.
iii. Rule 4.1
1. (b) requires disclosure unless prohibited by 1.6
2. Spaulding v. Zimmerman
a. P’s attorney fails to find aneurysm in P; D’s attorney finds out about it but does not disclose
i. Rule 1.6 – since info. related to representation of D D’s attorney was not required to disclose under the model rules
ii. However under rules of civil procedure initial mandatory disclosures are required
iv. Client Fraud
1. rely on your instincts, feelings about people in deciding whether to accept or continue representation
2. civil
3. criminal liability
Don’t Lie to the Court
Perjury in Civil Cases
Rule 3.3 – Candor toward the tribunal
i. Lawyer shall not knowingly make false statement of material fact or law to a tribunal
1. law – can’t make up a statute but can argue within a reasonable range of argument
2. fact – can’t make up facts by argue within a reasonable range of argument / interpretation
ii. 3.3.(a)(2) lawyers shall not knowingly fail to disclose material facts necessary to avoid assisting a crime or fraud
1. cannot assist a client
a. committing perjury
b. destroying evidence
c. falsifying evidence
iii. 3.3 (a)(3) lawyers shall not knowingly fail to disclose directly adverse legal authority whether or not the adverse party does the same
iv. lawyers shall not knowingly offer perjured testimony or falsified documents
