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Professional Responsibility
University of Kentucky School of Law
Gall, Maria Alice

Professional Responsibility Outline
Professor Maria Gall
Fall 2012
1.      Four Recurring Problems
a.       Prohibited Assistance – what kinds of things is a lawyer prohibited from doing for a client?
b.      Competence – What measures will assure competent lawyering?
c.       Confidentiality – What information learned by a lawyer should she treat as secret, and from whom, and under what conditions may the secrecy be lifted?
d.      Conflicts of Interest – When and to what extent is a lawyer prohibited from acting because there is a conflict of interest between her clients or between herself and a client?
2.      Type of Law Governing Attorneys and Clients
a.       Agency Law
b.      Tort Law (fraud, negligence)
c.       Contract Law
d.      Criminal Law
e.       Constitutional Law (Sixth Amendment Right to Effective Counsel)
3.      Spaulding v. Zimmerman
a.       Facts – Plaintiff, a minor, was a victim in a serious car accident. Insurance Companies for both sides conducted examinations of him to determine the extent of his injuries, but only the Defendant’s doctor discovered that his life was at risk from a serious brain aneurysm which may or may not have been caused by the accident. Counsel for the Defendant decided not to reveal this information while negotiating settlement. Plaintiff did not become aware of this condition until two years later, and requested that the trial court vacate the prior settlement.
b.      The lower court vacated the settlement.
c.       Because the plaintiff was a minor at the time of settlement (and had to have the settlement approved by the court), the court set the settlement aside, but notes that if the plaintiff was an adult it looks like he would have been bound.
d.      Defendant’s counsel had no ethical obligation to disclose.
e.       Absent special circumstances, such as mutual mistake, fraud on the court or concealment from the court, courts will not set aside a judgment because a lawyer has concealed adverse evidence from the opposing party.
                                                              i.      The legal system does not protect a party in civil litigation from the laziness, incompetence, or failure of the party’s lawyer.
1.      “Freely selected agent” – Justice Harlan
2.      Recourse – file a malpractice action
Attorney-Client Relationship
1.      Formation
a.       No Model Rule on Attorney-Client Relationship (1.16 and 1.18 should be referenced), but it is covered in Restatement § 14:
A relationship of client and lawyer arises when:
1.      A person manifests to a lawyer the persons intent that the lawyer provide legal services for the person; and either
a.       The lawyer manifests to the person consent to do so; or
b.      The lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or
2.      A tribunal with power to do so appoints the lawyer to provide the services.
b.      Togstad v. Vesely, Otto, Miller & Keefe
                                                              i.      Facts – After a brief consultation in his office regarding a potential medical malpractice action, defendant (attorney) told the plaintiff that she probably did not have a case, and she acted in reliance on that information. By the time she learned her case had merit, the statute of limitations had run.
                                                            ii.      Defendant was found negligent and the plaintiff was awarded $650,000.
                                                          iii.      An attorney-client relationship was formed between the plaintiff and the defendant. This case shows that an attorney-client relationship can be formed without actually retaining a lawyer.
                                                          iv.      Once you dispense legal advice you have created a client, but as the lawyer you can explicitly say that you do not want an attorney-client relationship.
1.      Burden is on the lawyer to clarify the relationship.
                                                            v.      Legal Malpractice Elements
1.      Attorney-Client relationship existed
2.      Defendant acted negligently or in breach of contract
3.      That such acts were the proximate cause of the plaintiffs’ damages
4.      That but for defendant’s conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim
                                                          vi.      Tort v. Contract Theory
1.      Contract Theory of Relationship Formation: Detrimental Reliance
2.      Tort Theory of Relationship Formation: Reasonable foreseeability of injury
3.      Under either theory, an attorney-client relationship was formed.
2.      Termination
a.       Model Rule 1.16:
b.      1.16 (a) – mandatory withdrawal
c.       1.16 (b) – permissive withdrawal
(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:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(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;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(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) 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 t

Actual v. Apparent Authority
                                                        i.            Actual Authority – may be express, implied, or inherent. Actual authority exists when the principal (the client) through words (express) or deeds (implied) causes the agent reasonably to believe that she has the authority to act.
                                                      ii.            Apparent Authority – exists when the principal (the client) through words or deeds causes a third party reasonably to believe that the agent has the principal’s authority to act.
d.         Authority to Settle Criminal Matters
                                                     i.               Like civil cases, questions on tactics and procedural matters are the ones the lawyer may decide, while questions on whether to compromise the clients cause are for the defendant.
                                                   ii.               Four key matters decided by the defendant (remember, defendants have fundamental constitutional rights):
1.      Whether to plead guilty
2.      Waive a jury trial
3.      Testify on own behalf
4.      Take an appeal
                                                 iii.               Decisions made by the attorney (no need for client consent):
1.      Which witnesses to call
2.      Whether to move for a mistrial
3.      Whether a defense is plausible
4.      Nature of opening and closing arguments
5.      Whether to waive objection to the racial composition of the grand jury
6.      Whether to allow a magistrate to preside over voir dire and jury selection
7.      Whether to seek a change of venue after extensive pretrial publicity
                                                 iv.               Jones v. Barnes
1.      Facts – Defendant was convicted of robbery and assault and was appointed Michael Melinger as his counsel. The defendant sent Melinger a pro se brief which included numerous claims the defendant thought should be put forth on appeal. In response, Melinger told the defendant that many of the claims would fail since they were based on evidence not in the record. Melinger did list the claims he was considering and asked defendants input on them. Receiving no response, Melinger appealed on the grounds he himself created and lost. Defendant claims ineffective assistance of counsel.
2.      The court found in favor of Melinger’s actions stating that the sixth amendment’s effective assistance of counsel standard does not require an attorney to argue every non-frivolous point raised by his client.
3.      Dissent – under the Sixth Amendment, the client is the one who will bear the consequences of his conviction. Therefore, it is the defendant who should have control over his defense, and the lawyer runs afoul of the sixth amendment when he does not pay heed to the client’s wishes.