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Professional Responsibility
University of North Carolina School of Law
Martin, Edward C.

1 – Introduction
 
1)      Where do ethics rules come from
a)      Constitution: 1A protections for soliciting clients, criticizing judges; 6A right of counsel in criminal cases; 5A takings when L required to put client fund in escrow
b)      State and federal rules (SOX)
i)        Tension b/w judicial & legislative branch on who can make rules
c)      ALI makes Restatement of the law governing lawyers
d)      ABA promulgated Model Rules, which Courts adopt (subject of MPRE)
i)        First attempt was the Canon of Ethics. Aspirational, too general & lacked guidance
2)      Conflicts in ethics rules
a)      State to state: ABA says if you are practicing in connection with a local proceeding, should use rules of the locality. Where the proceeding is occurring governs.
b)      Federal to state: Each fed district court can adopt rules for practice in that court.
3)      à à CORE VALUES ß ß
a)      Undivided loyalty to the C (ensures adversarial model works)
b)      Exercising independent legal judgment
i)        Cant represent both sides, because every time get something for one C are taking away from another C
ii)      Lay aside personal feelings if necessary (or don’t take the case)
c)      Avoid conflicts of interest
d)      Protect confidential information of the C
e)      Other misc: duty to promote access to justice, officer of the court
4)      Remember the rules are MINIMAL standards. L might have Aspirational standards that differ.
 
2 – The Client-Lawyer Relationship
 
1)      When is there L-C relationship?
a)      Important because this governs whether L is liable for violating PR rules or malpractice.
b)      L-C relationship gives rise to fiduciary duties & L is agent (C is principal)
c)      Whether there is L-C relationship is a question of law (judges decide)!
i)        L-C relationship can be formed in many ways
(1)   Money need not change hands (Perez), though payment is good evidence.
(a)    3d party may pay client’s fees. His ID is not protected by A-C privilege unless L can show 3d party was also client & his ID is part of confidential comms
(2)   May be implied by conduct
ii)      **Generally court looks at what “C” reasonably believed under the circs, esp whether C gave CI assuming L was performing legal services for him.
d)      Actions L should take
i)        Clarify per 1.13 and 4.3
(1)   MR 1.13(a) cmt.7 L should clarify misimpression: entity L should clarify he represents the entity not the constituents when interests become adverse.
(2)   MR 4.3 when L knows or reasonably should know that the unrepresented person misunderstands the L’s role, L SHALL make reasonable efforts to correct the misunderstanding
ii)      Good practice to have written retainer agreement governing scope of representation
(1)   MR 1.2(c) L may limit scope of rep if its reasonable under circs w/ C informed consent.
6 Elements of L-C relationship
 
Competence, confidentiality, agency, fiduciary, loyalty & diligence, duty to inform & advise
Threshold = is there a relationship?
 
1)      MR 1.1 Competence
a)      L shall provide competent rep = legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
b)      Cmt.1: look at L’s training and experience, complexity of the matter to determine knowledge.
c)      Cmt.3: L may give advice in emergency w/ lower skill level, but limit assistance to what is reasonably necessary.
d)      Cmt.6: keep up w/ changes in law & practice
e)      MR 1.3 cmt.2: L workload must be controlled so each matter is handled competently.
 
2)      MR 1.6 Confidentiality 
a)      Policy: encourage open comms w/ L à better representation; respects C autonomy
b)      1.6(a) L shall not reveal info relating to representation UNLESS C gives informed consent; impliedly authorized by C; OR permitted by 1.6(b)
c)      EXCEPTIONS
i)        Waiver (below)
ii)      1.6(b) L MAY reveal info to the extent L reasonably believes necessary (= objective standard!):
(1)   To prevent RC death/substantial bodily harm
(a)    Cmt. 6 = RC if imminent OR present/substantial threat that harm will occur later
(2)   Crime fraud(future & present)
(a)    To prevent future crime/fraud that is RC to result in subst. injury to finances or property of another AND C has/is using L in furtherance See also R§82 for crime/fraud
(b)   To prevent, mitigate, fix substantial injury to financial interests or property of another that is RC to result/has resulted fromcompleted crime/fraud by C in which C used L’s services to further the crime/fraud
(i)     *don’t have to establish the crime/fraud occurred, just that there was reasonable basis to believe the comm’s purpose was to effect crime/fraud
1.      takes care of chicken-or-the-egg issue
(ii)   Disclosure to judge doesn’t destroy privilege (to ensure basis for disclosure)
(c)    Some § might have duty to investigate if suspect crime/fraud
(d)   Noisy withdrawal: when L must withdraw b/c crime/fraud, atty required to retract publicly documents or opinions issued during representation.
(3)   To secure legal advice about L’s compliance w/ PR
(4)   Self defense (for conflict w/ client or to mount defense generally).  See R§83
(a)    Cmt. 10: don’t have to wait until action commences to reveal.
(b)   Cmt. 11: to collect fees
(5)   To comply w/ other law or court order
(a)    Public policy – need, relevance, materiality may trump
d)      Former & Prospective Clients
i)        Former clients: MR 1.9(c) limit lifted if former C’s info has become “generally known.”
ii)      Prospective clients: if someone comes to me as a prospective client and discloses information to me that information is confidential even if they don’t become my client
iii)    Duty of confidentiality survives death of C.
(1)   Swidler v. Berlin said privilege also survives death
(a)    Criticism: should be criminal right to exculpatory E; compelling LE need
(2)   R§81: A-C doesn’t cover comms to/from decedent in dispute b/w parties over decedent’s property disposition
e)      Waiver (1.6(a) authorized by C)
i)        C may make express or implied waiver
(1)   Generally must be explicit & after consultation.
(2)   Can be implied: when C puts the L’s conduct or a comm.. at issue in a case, he is deemed to have waived the privilege implicitly. (Taylor v. Illinois.)
(3)   Issue = to what extent is partial revelation of confidential info a complete waiver?
ii)      Inadvertent waiver
(1)   Lenient: If revelation was inadvertent, privilege is not waived.
(2)   Middle:  Consideration of the R’ness of the precautions against inadvertent disclosure, # of disclosures, extent, promptness of efforts to rectify, overriding interests of justice.
(3)   Strict: Carelessness by A or C waives privilege.
iii)    L’s can share info w/in law firm (w/ each other, paralegal) unless instructed otherwise – CYA by telling ahead of time that L will share w/in firm
iv)    R§78: waiver of A-C privilege if C, C’s L, or authorized agent (1) agrees to waive; (2) disclaims protection AND someone else relies to their detriment OR judicial admin. disallows revocation; (3) fail to object in tribunal proceeding.
v)      R§79 subsequent disclosure: A-C waived if C, C’s L, or agent voluntarily discloses the privileged comm. in a non-privileged comm..
vi)    R§80 A-C waived if C puts L’s assistance or a comm. In issue
f)       Identity & fees: are not comms, so not protected by privilege. But if this info is last link in incriminating circs that would reveal client guilty, then closer case! Split of authority.
g)      Privilege v. Confidentiality
i)        Ethically confiden

cedural defaults: If don’t follow ST procedural rules in bringing issue to attention of courts, federal court wont consider the merits either
h)      Advice to L: define so far as reasonably possible what the lawyer is retained to do. An ambiguous retainer might be construed to include services the lawyer never intended to perform. A client may interpret the lawyer’s responsibility more expansively and allege neglect and malpractice.
4)      Fiduciary
a)      L becomes fiduciary when professional relationship w/ C starts: C shares info; C relies on A’s integrity, fairness, knowledge to guide his decisions; *C becomes dependent on A for rep
b)      Examples of violations (look for deception, L taking advantage of position)
i)        L borrows $ from C using unsecured promissory notes; solicit drugs from C during sting; A didn’t tell C he was splitting fee when he recommended a firm (Lerner); compete w/ C
c)      Consequence: civil action; state bar action; unhappy C; bad rep (independent C for breach)
 
5)      Loyalty & Diligence
a)      Loyalty = A required to pursue C’s objectives unfettered by conflicting obligations or interests
i)        Even after termination: difficulty of ambiguity when relationship is over. Firm may not want to cut off rep in order to continue biz relationship
b)       Diligence = obligation to pursue C interest w/o undue delay
i)        MR 1.3 = L shall act w/ reasonable diligence and promptness in representing a client.
(1)   Cannon 7 & cmt.1 refer to L acting w/ “zeal.” L not required to use offensive tactics, press for every advantage, disrespect ppl in legal system to accomplish this.
(2)   Cmt.2: control workload so L can handle each matter competently. (miss SOL)
(a)    Good to have internal controls to manage deadlines, a way to pass off cases in the event L can’t work (esp solo!)
(3)   Note perception that L isn’t working if don’t keep C in the loop (send copy of filed docs)
(4)   Unusually bad facts might lead to court finding L bad actions were willful (In re Young got 19 extensions)
ii)      MR 1.2(b) Rep. is not endorsement of C’s political, economic, social, moral views/activities.
(1)   If can’t separate own beliefs, don’t take the case.
 
6)      Duty to Inform & Advise (communication = 1.4)
a)      L views representation as provision of specific legal services, while C views their claim factually (are hurt and want all remedies). L must make scope of representation clear.
i)        MR 1.2(c) L may limit scope of rep. if reasonable under circs and C gives informed consent.
ii)      Reasonably consult w/ C about means to which objectives are to be accomplished.
b)      L must promptly inform C of anything that requires C’s informed consent & keep C reasonably informed about his matter.
c)      L must advise C of alt legal remedies Nichols v. Keller
d)      Duty to convey settlement offers to C under MR 1.2 & 1.4
i)        Civil: C decides whether to settle; L makes tactical decisions
ii)      Criminal: C decides to take plea, waive jury, or take the stand