Creation of lawyer-client relationship
Based on
Agreement (contract law); ambiguity generally construed against lawyer
Governed by
Agency law (default rules and some mandatory rules)
Tort law (malpractice/3d party claims)
Disciplinary rules
Not based on
Payment (can be a lawyer without fee, though fee is probative of relationship)
Actual performance of services (promise of representation enough to create duties)
Duties may arise without actual representation.
Basic duties of a lawyer
Care
Competent and zealous representation
Within the scope of the law
Violation generally leads to
Malpractice action
Loyalty
Keep confidences
Avoid conflicts of interest
Do not compete with client
Do not put your interests ahead of client
Violation generally leads to
Disqualification for conflicts
Discipline
Suits by client
Model Rule 1.1
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Model Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client
Model Rule 1.4 Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
TROUBLE (in decreasing seriousness)
ADMINISTRATION
SOURCE
COMPLAINANT
Discipline, e.g. admonition, disbarment
Lawyers Board, Supreme Court
Rules of Professional Conduct
Client/agency
third person
Suit for malpractice, breach of fiduciary duty, malicious prosecution, etc.
Court
Tort, contract, fiduciary law
Client/third person
Disqualification
Court
Rules of professional conduct, constitution (criminal cases)
Opponent, court
Criminal conviction, e.g. aiding and abetting
Court
Criminal law
State or federal authorities
Sanctions, e.g. costs
Court
Court rules, inherent powers
Opponent, court
Reversal (criminal defense)
Court
Constitution, court rule
Client, court on appeal
Reversal/dismissal (prosecutor)
Court
Constitution, court rules, disciplinary rules
Opponent, court, appellate court
Reversal (civil)
Court
Varies
Opponent, court
Admission / Discipline
Tuesday, July 29, 2008
2:06 PM
Why do bar admissions standards matter?
· Client trust
· Justice
· Knowledge of the law
· Power (gatekeeper of law)
· Appropriate moral character to trust folks with these power
· Capability to exercise the power
admission, BoProof on candidate to show character/fitness
discipline, burden on disciplinary authorities
Triggers for further investigation on admission application
· Unlawful conduct;
· Academic misconduct;
· Misconduct in employment;
· Acts involving dishonesty, fraud, deceit or misrepresentation;
· Acts which demonstrate disregard for the rights or welfare of others;
· Abuse of legal process, including the filling of vexatious or frivolous lawsuits;
· Neglect of financial responsibilities;
· Neglect of professional obligations;
· Violation of court order, including child support orders;
· Conduct that evidences current mental or emotional instability that may impair the ability to practice law;
· Conduct that evidences current drug or alcohol dependency or abuse that may impair the ability to practice law;
· Denial of admission to the bar in another jurisdiction based on character and fitness grounds;
· Disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction;
· The making of false statements, including omissions, on bar applications in this state or any other jurisdiction.
Weight and Significance
· Applicant’s age at the time of the conduct;
· The recency of the conduct;
· The reliability of the information concerning the conduct;
· The seriousness of the conduct;
· The factors underlying the conduct;
· The cumulative effect of the conduct or information;
· The evidence of rehabilitation
· The applicant’s positive social contributions since the conduct;
· The applicant’s candor in the admissions process;
· The materiality of any omissions or representations.
Mental Health Standard
· Within the past five years, have you ever raised the issue of consumption of drugs or alcohol or the issue of a mental, emotional, nervous, or behavioral disorder or condition as a defense, in mitigation, or as explanation for your actions in the course of any administrative or judicial proceeding or any other inquiry or proceeding? If yes, please explain and attach copies of records relative to the matter.
· Chemical Dependency
· If you have an ongoing or recent physical or chemical dependency condition that impairs or limits your ability to practice law, are the limitations and impairments reduced or ameliorated because you receive ongoing treatment or participate in a monitoring program? If yes, please explain. If not applicable, answer “N/A”.
·
tion is engaged in actions, about to act, or refuses to act in a way that will violate that legal obligation and result in substantial injury to the organization, you “shall proceed” (read must) as is reasonably necessary in the best interest of the organization.
b. If you tell the highest authority at the organization of the above and
i. They fail to address the issue in a timely and appropriate manner, AND
ii. You reasonably believe that the violation is reasonably certain to result in substantial injury to the organization,
You may reveal confidential information whether or not rule 1.6 (confidentiality) permits disclosure (but only to the extent you reasonably believe is necessary to prevent the injury).
c. If you reasonably believe you were fired or you had to withdraw b/c of the above suspicions, you shall proceed as you reasonably believe is necessary to assure that the highest authority of the organization is informed of the discharge or withdrawal. (in-house lawyers cannot suffer retaliation)
d. Any time you are dealing with anyone adverse to the organization, you shall explain to them who you represent
e. You can also represent the organization’s directors, officers, employees, members, shareholders, or other constituents – subject to 1.7 (conflict of interest) with consent of the organization given by appropriate people.
i. Derivative suits – lawyer must resolve conflict of interest (SLC)
Client with Diminished Capacity (1.14)
a. This can be for minority, mental impairment, or for some other reason (severely incapacitated cannot make legally binding decisions)
b. As far as reasonably possible, maintain a normal relationship
c. If you reasonably believe the client is at risk for substantial physical, financial or other harm, you may take reasonably necessary protective action:
i. Consult with others that can take protective action
ii. Seek the appointment of a guardian ad litem
iii. You are impliedly authorized to reveal information but only to the extent necessary (be sure that this disclosure won’t adversely affect the client legally)
iv. Should continue to be guided by the wishes of the client
