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Professional Responsibility
University of North Carolina School of Law
Remus, Dana Ann

Remus, Spring 2015
Sources of Law:
1.       Disciplinary Rules= profession promulgating & enforcing its own rules
2.       Tribunal= courts and judges (conflicts of interest; deceptive evidence-gathering)
3.       Other Rules
All states EXCEPT CALIFORNIA adopted the Model Rules—State Supreme Courts adopted it under their inherent authority to regulate their own as an exclusive authority
·         Rest 1, cmts b & c: “The highest courts in most states have ruled as a matter of state constitutional law that their power to regulate lawyers is inherent in the judicial function…”
“Shall”= mandatory
“May”= permissive
Defined terms in MR 1.0 are critical
Choice of Law: For discipline= MR 8.5 à is ALWAYS subject to discipline in one’s admitting jurisdiction and also where one provided the legal services
Applicable Law: For litigation= law where the court sits; For non-litigation= either law of state of conduct OR state where the predominant effect is felt
For Tribunal-Based Rules: Conduct relating to litigation=
·         Conflicts of interest
·         Violation of anti-contact rule
·         Deceptive evidence-gathering
Other Sources of Law
·         Torts: malpractice, fraud
·         Contracts: fees, scope of representation, waivers
·         Agency: fiduciary duties
·         Evidence: attorney-client privilege
·         Procedure: work product protection, frivolous litigation
·         Constitutional: inassistance of counsel (6th Am), advertising
·         Regulatory: Sarbanes-Oxley, IRS Circular 230
Mapping Cases by Source of Law
·         Togstad: Contracts, agency, torts
·         Jones v. Barnes: 6A IAC, agency law
·         Fordham: professional discipline, contracts
·         Upjohn: evidence (attorney-client privilege); civ pro (work product); NOT professional duty of confidentiality
·         Meyerhofer: track 2 inherent authority to disqualify
·         The bar is NOT “self-regulating” merely because “ultimate authority over the legal profession is vested largely in the courts”
·         Lawyers are extensively regulated by legislation and regulation, in addition to professional discipline
I. Formation
Rest 14: Formation of a Client-Lawyer Relationship
A relationship of client and lawyer arises when:
                (1) a person manifests to a lawyer the person’s 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.
Cmt e:
The lawyer's consent or failure to object. Like a client, a lawyer may manifest consent to creating a client-lawyer relationship in many ways. The lawyer may explicitly agree to represent the client or may indicate consent by action, for example by performing services requested by the client. An agent for the lawyer may communicate consent, for example, a secretary or paralegal with express, implied, or apparent authority to act for the lawyer in undertaking a representation.
A lawyer's consent may be conditioned on the successful completion of a conflict-of-interest check or on the negotiation of a fee arrangement. The lawyer's consent may sometimes precede the client's manifestation of intent, for example when an insurer designates a lawyer to represent an insured (see § 134, Comment f) who then accepts the representation. Although this Section treats separately the required communications of the client and the lawyer, the acts of each often illuminate those of the other.

then sues Lawyer for legal malpractice for not having filed the suit on time. Under this Section no client-lawyer relationship was created (see § 50, Comment c). Lawyer did not communicate willingness to represent Claimant, and Claimant could not reasonably have relied on Lawyer to do so. On a lawyer's duty to a prospective client, see § 15.
4. Defendant telephones Lawyer's office and tells Lawyer's Secretary that Defendant would like Lawyer to represent Defendant in an automobile-violation proceeding set for hearing in 10 days, this being a type of proceeding that Defendant knows Lawyer regularly handles. Secretary tells Defendant to send in the papers concerning the proceeding, not telling Defendant that Lawyer would then decide whether to take the case, and Defendant delivers the papers the next day. Lawyer does not communicate with Defendant until the day before the hearing, when Lawyer tells Defendant that Lawyer does not wish to take the case. A trier of fact could find that a client-lawyer relationship came into existence when Lawyer failed to communicate that Lawyer was not representing Defendant. Defendant relied on Lawyer by not seeking other counsel when that was still practicable. Defendant's reliance was reasonable because Lawyer regularly handled Defendant's type of case, because Lawyer's agent had responded to Defendant's request for help by asking Defendant to transfer papers needed for the proceeding, and because the imminence of the hearing made it appropriate for Lawyer to inform Defendant and return the papers promptly if Lawyer decided not to take the case.