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Professional Responsibility
University of North Carolina School of Law
Burk, Bernard A.

Burk

Professional Responsbility

Spring 2015

Consequences of Making Mistakes:

RISK

ADVERSARY

REQUIREMENTS

REMEDY

Criminal Liability

Prosecutor (e.g., District Attorney or US Attorney); often urged or supported by a victim

Violation of state or federal criminal law

Criminal sanction (fines; imprisonment) imposed by the government after trial

Professional Discipline

State Bar Prosecutor; investigation usually begins with a complaint to the State Bar from a client or other victim of the alleged misconduct

Violation of a Rule of Professional Conduct

Professional Discipline (warning; reproval; suspension from practice; disbarment; sometimes accompanied by restitution) imposed by the State Bar, State Supreme Court, or federal or administrative forum in which the alleged violation occurred;

**Purpose = to PROTECT THE PUBLIC

Civil Remedies:

Sanctions; Contempt (can be civil or criminal)

Often an adversary in a proceeding; sometimes the court itself

Violation of a statute or rule governing conduct of the proceeding (e.g., Fed. R. Civ. P. 11, 37; 28 U.S.C. § 1927) or a court order, or conduct offensive to the “inherent power” most courts claim to govern the parties and proceedings before them

Sanction authorized by relevant rule or statute (typically an order to pay money to the adversary or to the court; fines and imprisonment are possible sanctions for contempt) imposed by the court in which the proceeding is pending

Disqualification

Usually a client or former client claiming a breach of a duty owed to that client (though standing can be broader)

Breach of certain attorney duties in certain ways, usually a breach of either the duty of loyalty or the duty of confidentiality in a way that creates a conflict of interest. Typically no actual injury is required.

Disqualification (an injunctive order forbidding a lawyer to accept or continue a particular representation) imposed by a court

Fee Forfeiture

Same as DQ

Same as DQ

Defense to recovery of fees and/or an order to disgorge fees already paid, imposed by a court

Tort (or Contract) Liability

Usually a client or potential client, but claims may be asserted by non-clients owed duties

A duty arising out of the attorney-client relationship or otherwise imposed on lawyers
Breached by the lawyer
Actually and proximately causing
Pecuniary harm

(sometimes also styled as a breach of the contract creating a particular attorney-client relationship)

**In some jurisdictions, the burden of proof is flipped such that the fiduciary has to prove that he or she didn’t breach a certain duty.

Money damages awarded by a court; additional punitive damages where authorized by governing law (almost always requires intentional, or in a few jurisdictions some level of reckless, wrongdoing). Does not allow for punitive or emotional/mental damages.

Breach of Fiduciary Duty

Client

****

Allows for punitive damages – different from the others; also allows for emotional/mental damages

Informal Consequences of Lawyer Mistakes:

Fee Dispute
Loss of Reputation
Getting Fired
Bad Publicity

Six Rules of Survival

Never create a duty you don’t want to create.
Always be prepared to walk away.
Assume everything you do or say will become publicly know.
Never mistake the client’s problem for your own.
Never do as a lawyer something you find repugnant as a person.
If you mess up, you fess up.

A Lawyer’s Duties to Client’s

The Duty of Loyalty

Restatement § 16(3) [textbook page 19]

“A fiduciary duty is the duty of an agent to treat his principal with the utmost candor, rectitude, care, loyalty, and good faith—in fact, to treat the principal as well as the agent would treat himself.” —Judge Posner.

Generally the duty not to do anything bad to the client—duty to put the client’s interests ahead of your own.
Duty of loyalty dies at the termination of the attorney-client relationship [except for some exceptions (see confidentiality)].
Basic principle of this duty is that when loyalty or independent judgment is threatened by some interest other than the client’s, a conflicts question is presented and requires analysis.

The Duty of Care

Restatement §§ 16(2), 52(1) [textbook page 22]

General Rule: lawyers are held to a duty of care—extending to a duty to provide advice that a competent lawyer would have given under similar circumstances.

This duty includes:

The duty to advise a client of other available remedies, including third party actions, and to encourage them to find another lawyer if you are incompetent to provide services for these additional remedies.

Nicholas v. Keller.

Facts: Client brings suit against former insurance claim lawyer on the basis that he didn’t inform him of his right to pursue civil liabilities for a worksite accident that he suffered. à The lawyer only advised him about worker compensation claim.
Client brings a negligence claim à Must prove (1) a duty existed; (2) breach of that duty; (3) causal connection between negligent conduct and resulting injury; (4) actual loss or damage from negligence. à we are focused on (1).
Rule: You have a duty to inform clients of additional remedies that you cannot provide services for. Saying “I’m an x lawyer” is not enough to fulfill this duty. “Even when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention.”
FORESEEABILITY OF HARM = the main indicator (question of law)

The duty to advise clients to seek other opinions if you don’t want to take their case.

Togstad v.

on learned in the course of the representation (including the client’s identity) is confidential unless generally known. The standard for generally known is pretty demanding—means that either everybody knows about it—or everyone could easily go find out.
Model Rule 1.6(b)(1)-(3) allows for disclosure only when a lawyer reasonably believes a client intends to commit an act reasonably certain to result in injury or death, or when the client is using or has used the lawyer’s services to commit a crime or fraud that has harmed the financial interests of a third party.
Model Rule 1.8(b) says don’t use the confidential information of current client to their disadvantage.
Model Rule 1.9 says don’t use the confidential information of a former client to their disadvantage.
To whom is the duty of confidentiality owed:

Current clients are owed a duty of confidentiality.
Former clients are owed a duty of confidentiality.
Prospective clients are owed a measure of confidentiality.
**Fees are not required to instigate the duty of confidentiality.

Confidentiality Owed to Prospective Clients

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.
Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Confidences from Parties Related to Clients (Third Parties)

Rule: Duties of Confidentiality extent to non-clients who provide confidences under circumstances that justify them to believe that you will keep the information confidential. The test is whether the third party’s perception that you will keep the information confidential is actual and reasonable under the circumstances.

A semi-exception to the above rule, as the third party does not need to be contemplating the representation. They just need to have a reasonable and actual expectation their disclosures will be held in confidence.

Westinghouse Electric Corporation v. Kerr-McGee Corporation:

Facts: law firm representing two adverse clients—in one litigation proceeding, and another collecting questionnaires under the explicit assumption that the results would be confidential.
Rule: even though there is no attorney client relationship with the questionnaire responders, still can create duties of confidentiality depending on the reasonable and actual belief of responders.