Professional Responsibility Outline

 
 
PROFESSIONAL RESPONSIBILITY OUTLINE – Burns – Fall 2010
 
I.                   How to analyze PR issues: To whom do you owe duties?
a.       Clients
b.      Opposing party and counsel
c.       Your partners
d.      Yourself
e.       Administration of justice
II.                Admission to the Bar 8.1
a.       S.Ct has the duty of admitting lawyers to the bar
b.      Requires potential lawyers to show competence and moral character
c.       Honesty – better to admit any past transgressions, because failure to do so could result in future claims and/or disbarment. 
III.             Purposes of and forms of discipline:  ultimate duty to client=justice.
a.       Purpose:  not supposed to be punishment, but public protection (protect other lawyers, protect system).  Malpractice is not a desirable way to protect the public b/c other attys are unwilling to accept malpractice cases.
                                                              i.      Cleanse (remove deviant members of bar)
                                                            ii.      Deter
1.      deterring the individual atty who is being disciplined and
2.      others from committing the same act
                                                          iii.      Public image function (want to trust the system)
b.      Forms:  private admonition (not made public but given to other state bars); private probation; public reprimand (more serious slap on the wrist); suspension (could be 30 days or five yrs); disbarment.
c.       System:  MN Supreme Court—all discipline done by the Sup Ct.  Lawyer’s Professional Responsibility Board (all volunteers, all appointed).  LPRB can issue opinions; opinions are guidelines.
d.      Aggravating and Mitigating Factors – Problems of drugs and alcohol
                                                              i.      Not a defense, just a mitigating factor.
                                                            ii.      Alcohol – can be mitigating factor if lawyer enrolls in treatment program.  In re Walker. 
1.      In re Johnson: 5 factor test in order to mitigate sentence.  Must prove by clear and convincing evidence:
a.       Suffer from alcoholism, mental illness or addicted to drugs
b.      The above condition caused the misconduct
c.       That you are in treatment
d.      The treatment has in fact arrested the misconduct
e.       Because of the treatment, the misconduct is not likely to reoccur.
2.      Mental Disease – if actual condition with proof can be mitigating factor – such as compulsion to shop.  People v. Lujan.
IV.             Discipline outside the Rules
a.       Standard of Care:
                                                              i.      Attorney had a duty (does attorney/client relationship exist)
                                                            ii.      Attorney failed to exercise ordinary skill and knowledge; and
                                                          iii.      Such negligence was the proximate cause of damage to P.
b.      MN Standard
                                                              i.      Attorney client relationship
                                                            ii.      Acted in breach of your duty or negligent
                                                          iii.      Your act or negligence was the proximate cause of damage to P
                                                          iv.      But for the D attorney’s conduct, the underlying action would have been successful.
c.       Malpractice to people other than your clients:
                                                              i.      If you incorrectly advise a prospective client (s.o.l.)
                                                            ii.      Beneficiaries named in a client’s will if will doesn’t carry out testator’s intention.
                                                          iii.      A non-client to whom the lawyer expressly assumes an obligation to investigate facts and accurately report them to the non-client
                                                          iv.      Lawyer who aids a trustee-like fiduciary to breach an obligation to the intended beneficiary.           
d.      Proving Malpractice
                                                              i.      P must present expert testimony about duty of care in suit for professional malpractice
                                                            ii.      Most courts allow expert witnesses to cite the professional rules as evidence of the standards to which most lawyers adhere in the situations they face, however
1.      In some jurisdictions violation of a disciplinary rule alone is not enough to show malpractice – only evidence that lawyer breached applicable standard of conduct.
2.      Scope – Paragraph 20 says that you can’t just cite to violation of rule in malpractice suit.
                                                          iii.      Criminal complaints must prove by a preponderance that they were innocent in the first instance and only convicted because of attorney’s malpractice.
1.      Restatement requires that you show that conviction be set aside.
e.       Advance waivers of a lawyer’s malpractice
                                                              i.      1.8(h) – can disclaim malpractice but client must be independently advised as to advisability of such an agreement.
f.       Release of malpractice –
                                                              i.      Must recommend to client that the be independently represented.
g.      Duty to inform client of their own breach?
                                                              i.      Typically yes – jurisdiction by jurisdiction.
                                                            ii.      Law firms can try to shield themselves from liability – LLC or LLP.
h.      Other sanctions
                                                              i.      Contempt.
                                                            ii.      Could be found as an accomplice
                                                          iii.      If collecting debt must follow rules
V.                MR 1.1:  COMPETENCE—an atty must provide competent representation to a client; competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.  A newly admitted atty can be as competent as a practitioner w/ long experience.  In many instances, the proficiency required is of a gen practitioner.  An atty may accept representation where the requisite level of competence can be achieved by reasonably preparation.  The required attention and and preparation of a case is determined by what is at stake.
 
a.       If an atty has never worked on an issue before, does s/he have to refuse the case?:  NO; do the legal research, find out what is involved; talk to a partner or associate working in that area; speak in hypotheticals to avoid disclosing confidentialities; go to CLE; formally associate w/ another atty—that atty should have more experience than you.  PREPARE.
                                                              i.      Rule 1.4(b):  atty shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions re: the representation.  Atty should tell the client s/he hasn’t handled a case like this before, although an atty likely won’t be disciplined for not telling the client s/he doesn’t have any experience.
                                                            ii.      Rule 7.1:  advertising—atty can’t make a false or misleading communication about his/her services.
b.      Fee splitting b/n attys not in the same firm (when an atty sends business to another atty b/c that atty is more experienced):  RULE 1.5(E)—the fee can be split only when the division is proportion to the services performed by each atty or each atty assumes joint responsibility; the client agrees to the arrangement and the agreement is confirmed in writing and the fee is reasonable.  This only applies when both attys significantly contribute to the representation—not when there is a simple referral.
                                                              i.      Referral fees:  a referral fee is when an atty takes money for not accepting a case—“unreasonable per se.”  It is an atty’s ethical duty to refer the client elsewhere when the atty knows they can’t handle the case competently.
                                                            ii.      Some sts do allow referral fees—MA.
                                                          iii.      MRPC Rule 7.2:   An atty can’t charge a referral fee unless they do a significant amt of work.
c.       Firms and competency:  firms might offer more competent attys b/c associates go through more training and are supervised.
d.      Waive competency?:  client CANNOT waive competency.  Breach of professional conduct rules doesn’t automatically create an action in malpractice; only provides evidence of malpractice.
e.       Atty doesn’t like client:  rule 1.2(b)—representing a client doesn’t mean the atty endorses the client’s political, economic, social or moral views or activities (also MRPC 1.2—an atty can’t turn down a client b/c views are unpopular).  Some sts, like CA, require that attys never turn down a case b/c it conflicts w/ their personal views.  The whole system of justice would fall apart if we were allowed to turn people away just b/c their views are unpopular.
                                                              i.      Rule 2.1:  atty can, when advising a client, refer to moral considerations, though; so if they don’t agree once they’ve accepted the client, they can at least talk about it.
                                                            ii.      Rule 1.7 and 1.7 of MRPC:  why are these relevant?
                                                          iii.      Rule 6.2:  atty can’t avoid an appointment by a tribunal to represent a person except for good cause, like—representing the client would cause a violation of the rules (like 1.7); representing the client will result in an unreasonably financial burden; or the the client/cause is so repugnant to the atty as to impair the ability of the atty to represent the client.
1.      BUT:  all attys have a duty to perform pro bono services—rule 6.1. 
f.       Starting an atty/client relationship:  TOGSTAD (imposed a/c relationship and duties even when the atty affirmatively said he wasn’t taking the case, but he would check w/ his partner.  Statute of limitations ran out on woman and she collected from the firm)—if you aren’t going to represent someone after meeting w/ them, you have to make it VERY VERY clear and that they should see someone else and that they should be aware of statutes of limitation.
                                                              i.      What to set out in your engagement letter
                                                              i.      Who the