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Professional Responsibility
University of Kentucky School of Law
Barnett, Kent

Professional Responsibility

Barnett

Spring 2011

Potential sanctions for violating Rules:

– Disbarment

– Suspension

– Public Reprimand/Censure

– Private Reprimand/Censure

Factors to consider when determining severity of punishment:

– Culpability

– Damages done

– Attorney’s cooperation

– Lawyer’s selfishness

– Honesty/dishonesty

Lawyer competence

Model Rule 1.1- A lawyer must provide competent representation to a client. Includes:

– Legal knowledge

– Skill

– Thoroughness

– Preparation

1.1, cmt. 5- Required attention and preparation largely depend on what is at stake.

1.3- Requires lawyer to exhibit reasonable diligence.

If counsel misses a deadline, what rules could they be liable under?

– If they were unaware, possibly a 1.1 incompetence issue.

– If they knew and forgot, potentially lacked 1.3 diligence.

– Also potentially a 1.4 issue.

o 1.4- Requires lawyer to:

§ 1) Keep client reasonably informed about status of matter (more so for businesses than individual clients), and

§ 2) Promptly comply with reasonable requests for information

Malpractice

Elements of a malpractice action:

o 1) Duty/Relationship

o 2) Breach

o 3) Causation

§ NOTE: In criminal cases, potentially two additional elements:

· 1) Post conviction Relief must be granted

· 2) Actual innocence must be proved by preponderance of the evidence (only a minority of jurisdictions require this)

§ Ask whether there are intervening circumstances or superseding causation.

· For superseding causation, second attorney must have acted negligently to get you off the hook.

o 4) Damages

§ Plaintiff must show that their case would have succeeded.

Who can bring malpractice action?

– Privity Rule (majority approach)- An attorney owes duty of care only to his clients and not third parties.

o But, for trusts and estates, if a party is identified in a later-determined invalid will or trust, you may sue for malpractice.

– Counsel cannot sue co-counsel for fees owed.

o Rule 1.5(e) on division of fees – can only be split if:

§ 1) Division is in proportion to services performed by each lawyer OR each lawyer assumes joint responsibility;

§ 2) The client agrees to the arrangement, including the share each lawyer would receive, and the agreement is confirmed in writing; AND

§ 3) The total fee is reasonable

When is the attorney-client relationship established?

Relevant Rules (not extremely helpful):

– 1.16- Client must withdraw if:

o 1) Representation will result in violation of the rules of professional conduct, OR

o 2) Lawyer’s physical/mental condition impairs ability to represent client

– 1.18- A prospective client is anyone who discusses a potential attorney-client relationship with an attorney.

o To counteract developing relationship, lawyer should clearly decline case in writing.

o Comment 2- If a person communicates information unilaterally without any reasonable expectation that relationship is established, it is not established. Ask what client would reasonably believe.

§ To counter any reasonable expectation of relationship, use disclaimers.

– Representing organizations

o 1.13- If you represent an entity, you get your orders from “authorized constituents,” which will be dictated from laws, bylaws, corp. docs, etc.

o 1.13- Additionally, when you are dealing with an entity’s people, lawyer must explain identity of the client when lawyer should reasonably know or does know that or’s interests are adverse to constituents (“Corporate Miranda”).

– Getting payment from someone else- You rep whoever the client and not the payer is.

o 1.8- To even be allowed, following elements required:

§ 1) Must be fair and reasonable

§ 2) There must be informed consent (this includes explanation of potential conflicts.

Withdrawing from Attorney-Client Relationship

1.16- May be mandatory or permissive

– Situations in which withdrawal is mandatory:

o Violation of professional rules

o Physical/mental condition impairs ability to represent (can’t be waived by client)

o Lawyer is discharged

§ NOTE: Client cannot enter into valid K requiring client to have good cause for termination.

– Situations where withdrawal is permissive:

o Doesn’t materially affect client’s interest

o Client persists in course of action that lawyer should reasonably believe is criminal or fraudulent

o Client has used lawyer’s services to perpetuate crime/fraud

o Client insists upon acting in way lawyer had a fundamental disagreement

o Client fails to fulfill obligation and has been given reasonable warning

o Representation will result in unreasonable financial burden or unreasonable difficulty

o Other good cause

– NOTE: Tribunal can always tell you to continue representation, even if there is good cause.

Mandatory:

of physical/financial/other harm, lawyer may take reasonably protective action.

– Comment 9- If someone is not lawyer’s client, lawyer should take legal action only to extent necessary to avoid harm. Lawyer essentially has to treat that person like client at that point (but can’t charge fees if attorney acts voluntarily).

“Secrets” Doctrines

Three different ways that stuff can be kept secret:

– 1) 1.6 Confidentiality

– 2) Attorney-Client Privilege

o Requires:

§ 1) Communication that is

§ 2) Confidential to

§ 3) Client by

§ 4) Counsel for the purposes of providing

§ 5) Counsel/legal advise

o Protects communications – not underlying facts.

o Extends to experts used for trial

– 3) Work-Product Doctrine

o Requires protected information to be:

§ 1) Part of litigation, and

§ 2) In preparation for trial.

o Extends to expert communications unless cannot be obtained elsewhere

For attorney to work in conjunction with similarly-situated clients, communications are protected if parties enter into one of the following arrangements:

– 1) Joint-Defense- One lawyer has multiple clients

– 2) Common Interest- Each client has their own lawyer (but Federal Rule of Evidence 503(b) requires parties to have a pending claim)

Exceptions to A/C privilege:

– Crime fraud exception- Requires:

o Client’s intent to commit crime/fraud, AND

o Communication made in furtherance of crime and fraud

– Breach of duty by lawyer or client

– Testamentary exception

– Waiver

o Majority view- There cannot be selective waiver

o Minority view (only 8th Circuit)- There can be selective waiver

o FRE 502- When disclosure is made in federal proceeding and client waives a/c or w/p privs, waiver extends to undisclosed communication/info, ONLY IF:

§ 1) Wavier is intentional,

§ 2) The disclosed and undisclosed communication/info concern the same subject matter, AND

§ 3) They ought in fairness to be considered together