ABA MODEL RULES OF PROFESSIONAL CONDUCT
Model Rules of Professional Conduct were adopted in 1983 with a recommendation to states and federal agencies to adopt the Model Rules over the Model Code and adopted by 49 states and DC with the exception of CA. They were created by the ABA and thus do not have the force of law. However when they are adopted by states they have the effect of law, but their jurisdiction is technically limited to disciplinary proceedings.
The Lawyer – Client Relationship
ABA Rule 1.18 – Duties to Perspective Clients (pg. 87)
Under paragraph (a) of the rule, “a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” Paragraph (b) deals with confidentiality, and paragraph (c) explicitly lays out the elements of when a lawyer owes a duty to a prospective client. It states:
A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).
Hypos:
· (1) Richard and Lauren are married and are going to get divorced. Richard is looking for a divorce lawyer and calls Scott to set up an appointment. They meet for an hour at Scotts law firm. During the meeting R shares with S his financial information (business, bank accounts, etc.). Including secret accounts he hasn’t told his wife about in the Cayman Islands. After, R asks S how much he charges (250 an hour). R says it’s too expensive and leaves. A week later Lauren goes to S and asks him to represent her. Can Scott represent Lauren under these circumstances?
o No. Rule 1.18(c): Lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.
o Scott also cannot share the information about the secret accounts. 1.18(b)
§ Has an obligation to keep that information confidential even though there is not attorney-client relationship
o Further, Scott cannot represent Lauren because Richard was a “prospective client” and therefore has a reasonable expectation of some attorney client privilege. See (c) of 1.18. (unless there is informed consent.)
§ As soon as Scott figures out that there is a potential conflict between Lauren and Richard he needs to stop the conversation with Lauren to prevent receiving any more information.
· Now change the facts: What if at the outset Scott had said, “nothing in this meeting is confidential?” Richard says okay and continues to tell him everything. Had Richard given informed consent?
o Comment 5: Richard must really know what he is giving up when he consents. This is a subjective standard: the person must really understand (depends on who you’re dealing with; if you are dealing with a business man then he might get it, lay person who knows nothing about the law unlikely for this to be informed consent. Close call)
· Change the facts again: Richard had no intention of using Scott as an attorney he just wanted to conflict him out.
o Richard would therefore not be considered a prospective client- Richard doesn’t get the prospective client privilege because he had no reasonable expectation of forming an ACP. See comment 2 of 1.18.
o But does Scott know that? If Scott discovers that Richard never had any intent to hire him then he is not a prospective client.
o Bad faith matters. No intent to hire the attorney, not a prospective client.
· (2) Richard and Lauren. Richard is a doctor and makes a lot of money. He wants to divorce Lauren but she doesn’t know yet. Richard has been through a couple divorces before and knows he has an advantage if he can keep Lauren from getting the best legal representation in the county. One of the best in the county is Scott – and he knows if he goes to S and tells him about his secret bank account then Lauren cannot use him as her lawyer because of the conflict. Richard calls Scott and tells him he wants a divorce, talks to him about representing him but does not tell him that he has no intention of hiring Scott. Lauren then finds out that Richard wants a divorce and goes to Scott to represent Lauren. Can he represent her?
o See comment 2. Someone who consults with a lawyer for the purpose of disqualifying the lawyer is not a perspective client. If there is no intention for a lawyer-client relationship then there are no prospective client protections. Intent matters!
§ Intent has to be proved – you would need more facts to show that he didn’t have the intent to hire Scott. Its not easy to do but it can be done under the rules.
· (3) Richard and Lauren are going through a divorce. Richard calls Scotts office and talks to Scott’s assistant. Says to the assistant that he wants to talk to Scott about representation. Shares information about assets, children, and Cayman Islands with the assistant. The Assistant goes to see Scott and Scott says that he knows Richard and don’t share any information with me. Call him and say that he will not represent him. Lauren comes in a week later to see if Scott will represent him. Can Scott represent Lauren?
o No. The assistant is an agent of the lawyer and the confidential information was shared with her. Even though none of the information was shared with Scott he is still conflicted out.
§ By and large there is a relationship between the lawyer and his assistant. If the assistant has information that information is attributable to the attorney.
§ So, Scott would be precluded from representing Lauren because Richard was a prospective client from the assistant’s perspective, and therefore attorney.
· (Keep background checks to a MINIMUM. Only the general facts of the case.)
o BE AWARE: Information you get with prospective clients is treated the same as with actual clients. It’s confidential and must be kept confidential. When you have those meetings the best way to deal with them is to keep the amount of info you get in the initial meeting to a minimum – enough to determine conflict of interest and if it’s a case you want to take. If you go too far it could conflict you out of another representation.
Forming The Relationship: When Has An Attorney-Client Relationship Been Created
There is no Model Rule that states when representation begins. The Restatement and Case Law tell us that. It all comes down to the client’s reasonable expectation, as viewed from the client’s perspective!
Cases:
· Togstad v. Vesely (Minn. 1980): Client alleged attorney was negligent in giving advice not to bring a medical malpractice. Attorney’s defense was that he was not the client’s attorney because he informed her that he was not an expert in that field.
o The court held that was not a good enough defense. The client had reasonable reliance on the attorney that there was not a case and she was not required to seek other counsel. He didn’t explain that it was not a case he could take because of his lack of expertise, but there could have been a case if there was an expert.
· Board of Bar Overseers v. Mangan (Me. 2000)(This is the ME case on L-C Relationship existence): Claim was that the lawyer took advantage of the client through the use of the escrow account and the sexual relationship. Lawyer’s defense was that he wasn’t her lawyer at the time. Court says that during the sexual relationship he was her lawyer because she had a reasonable belief that he was undertaking the search for her children’s fathers as her lawyer. Rely on 3 criteria from NH that set the test for whether a lawyer-client relationship exists:
o A person seeks advice or assistance from an attorney
o The advice or assistance sought pertains to matters within the attorney’s professional competence
o The attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance (can be made through an assistant/agent/paralegal)
Hypos:
· (1) Richard calls Scott’s office (an attorney who is very good at trying OUI cases) and says to his assistant, “My name is Richard, I’ve been picked up for an OUI and I have a hearing in two weeks.” Assistant say send in the paperwork. Richard does, and the Assistant misplaces the paperwork. Richard shows up at the hearing and Scott isn’t there. Richard files a bar complaint for ethical violation and malpractice saying that Scott was his attorney and didn’t show up and as a result he was convicted of OUI. What result?
o Richard had a reasonable belief/expectation that Scott was his attorney
§ Restatement says that under these circumstances, because Scott normally practices OUI (holds himself out as a specialist) and because the secretary said send in the paperwork that based upon those two facts Richard had a reasonable belief that he was going to be represented by Scott.
§ The fact that Scotts assistant screwed up and didn’t hear about it at all makes no difference because the assistant is the agent of Scott
o BUT: There was no express agreement to take the case from either the attorney or the assistant
§ A fee agreement, legal fee, etc. is not nec
l malpractice against her for botching the surgery & goes to Scott and asks him to represent her against Dr. Lauren. Richard sues Dr. Lauren represented by Scott. Laurens lawyer files a disqualification notice against Scott claiming that because Scott is a lawyer for MRI Inc. and is therefore Laurens lawyer and cannot represent Richard. Does Scott get disqualified?
o No. Scott doesn’t represent Lauren just because he is the corporations counsel
o What if Lauren is the sole stockholder? Then it gets tricky…
§ Is the relationship between Scott and Lauren or Scott and MRI Inc.?
· THE ANSWER???
o Professor had a real case like this and the judge said there was no relationship
o Is there a reasonable belief of a relationship? Always go back to this!
· (2) Acme Corp. employs Meghan as a lawyer. President calls and says they have an employee named Lauren who claims that Richard sexually harassed her. Acme asks Lauren to come and do an investigation. Meghan goes to interview Lauren and she says Richard pushed her up against the wall and tried to kiss her. Meghan then calls Richard in and says “I’m the lawyer investigating the charges, tell me what happened.” Richard says yes he did it, he’s sorry and it will never happen again. Richard is fired and sues Lauren saying that he thought she was his lawyer, he only told her those things because he thought she was her lawyer, etc. Is Lauren in trouble?
o YES. Rule 1.13(f) requires her to identify herself as the attorney for the corporation only and advise Richard that he has the right to seek counsel of his own.
§ She needs to make it absolutely clear to Richard that she is not his lawyer before she talks to him and extracts information.
· (3) Acme Securities and Richard is a stockbroker there. SEC is conducting an investigation of insider trading for the stock in widgets. SEC investigates and finds that Richard has engaged in a lot of the suspect trades, thereby making him and ACME suspects for insider trading. SEC sends a subpoena to Richard and to ACME. ACMEs lawyer Meghan agrees to help ACME respond to the subpoena and go to Washington with Richard to help him explain his trades to the SEC. It becomes clear that Richard traded unlawfully. Meghan goes back to ACME and tells them that Richard was trading unlawfully. ACME fires Richard, and Richard sues ACME for wrongful discharge. ACME contacts Meghan and asks her to defend them against Richard, and Richard’s lawyer moves to disqualify Meghan because she has a conflict. Does Meghan get disqualified?
o Pretty clear that she should be dismissed. She represented Richard at the SEC hearing so she cannot represent the company against Richard. Meghan cannot represent either of them in the case because she has previously represented both of them!
· (4) Richard owns ACME pharmacy LLC, and Scott has represented ACME for a long time. Lauren works for ACME and has worked there for a long time. Lauren wants to buy shares of the company. Richard agrees and asks Scott to draw up the paperwork to have Lauren buy 49% of the company (reviewed by Laurens lawyer too). Lauren wants to expand the drugstore but Richard likes the way it is. Finally, Richard uses his 51% interest to fire Lauren. Lauren hires Meghan and sues Richard. Scott enters an appearance on behalf of Richard. Meghan and Lauren move to disqualify Scott saying he can’t represent Richard because he represented ACME Pharmacy as well. Can Scott represent Richard?
o Can He: Sure, see 1.13(g); He can represent the organization and a principle officer at the same time as long as there is not a conflict. You don’t have to, but given the circumstances it is acceptable to represent both.
o Should He: Depends on if there is a conflict, which is a whole different bag of cats
