Class Notes 5/21/07:
Ethics is the most tested area in the practice and study of law
There is no black and white way to handle a situation—it is for the most part grey and lacking concrete answers
Keep in mind: what is ethical, is not always in line with one’s morals
The difference b/t a trade and a profession is: ethics
There are 3 recognized professions: law, medicine, and religion
Practice of law is a self-regulated profession
Part I: The Lawyer-Client Relationship
Class Notes 5/22/07:
For the Final:
Anything in the Rules of Professional Conduct is fair game on the final: 1.0-8.5 (even though all may not be discussed in class)
Not responsible for Rules Governing Disciplinary Proceedings unless Guest Speaker Dan Murdock speaks about them in his lecture
Be sure to read Bar Ass’n Reports—they will be tested on the final exam (pg. 176-183)
Go back through highlighted portions of the Table of Contents for final exam “testable” material
Problem 1 (pg. 37, I) Hanging Out Your Shingle
1) It would be unethical for Arthur to keep the case if he was not able to provide competent representation as laid out in Rule 1.1. But Arthur reasonably believes that he has the general competence to keep the case. This is akin to a new lawyer with no experience—if Arthur can’t take the case bcz he doesn’t have experience, then a new lawyer will never get his first case. If Arthur does not have the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation, then it would not be ethical for him to keep the case. Comment 1 factors: I don’t think that p’l injury cases are super complex—this one might be a little more intricate bcz of the train, but with reasonable research, Arthur would probably be okay; Arthur has 8 yrs of experience in the practice of law; Arthur has no experience in this particular field; there is nothing to suggest Arthur wouldn’t devote the nec time to this case; Arthur does have the ability to refer Ann to Fred or Mary. There is always a first case. This doesn’t mean that he is incompetent to do so. You may have to eat some of the costs for educating yourself with the area of law—i.e. it takes you 40hrs but an expert tort lawyer would only take 4hrs and the avg tort lawyer 15hrs.
a. Just because some other lawyer may do a better job, does not mean that it is unethical for Arthur to keep the case.
2) Possibly. Comment 2 states that “A lawyer need not nec have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.” Arthur just has to assert himself through “necessary study” and “reasonable preparation” (Comment 2) (Comment 3). Ann has been represented by Mary before, yet she came to Arthur for representation in this case; there is most likely a reason for that switch.
3) There is not a rule to suggest that it is unethical to accept a fee, but according to pg 55, that by implication, suggests that it is not ethical to accept a referral fee. A referral fee is essentially money for nothing bcz the work done is sending the client to someone else, not actually taking the case. Rule 1.5(e)(1)-(3) states that the division of a fee must be in proportion to the svcs performed by each lawyer, the client must agree, and the fee must be reasonable—if all of these criteria are not met, then it is certainly not ethical.
a. If he remains associated w/ new counsel, then he is subject to Rule 1.5 (e)(1)-(3). If Fred is just as qualified, then there is no reason to choose Mary over him, especially when Arthur stands to financially benefit by splitting fees with Fred; however, the division must be in proportion to the svcs performed by each of them, the client must agree, and the total fee must be reasonable—if any of these are not satisfied, the arrangement is not ethical. If Mary is significantly better than Fred, then perhaps it is not ethical, but Ann has worked with Mary before and chose not to for this particular case.
Problem 1 (pg. 38, II) -Did not review this problem in class-
1) If I take the incorporation matter I will not only have my knowledge but the assistance of a man who has 8 yrs experience in that particular field. On the other hand, the referred case is a way to generate some future business. I need to be able to devote enough time to do adequate research so that I am reasonably competent to take on one or both of the cases; it is not unethical to take on a case just bcz I am not knowledgeable or experienced in that particular field, see Comments 2, 4, and 5 of Rule 1.1.
2) Rule 1.5. The fee I charge must be reasonable under the circumstances (see Rule 1.5 (a)(1)-(8)). This should be in writing (with both client and atty retaining a copy) “before or within a reasonable time after commencing the representation” (Rule 1.5 (b)). The client is hiring me and my inexperience; if he wants a more experienced atty, he may choose to be represented by one. The more experienced atty will charge more per hr, but he will spend about 10hrs doing the same work that will take me 5-15 more hrs.
a. I cannot enter into a contingent fee for the domestic relations case if the fee is subject to the procurement of a divorce or the amt of alimony to be paid out or a property settlement. Otherwise, the fee should be reasonable under the circumstances (see above). (see Comment 2).
3) Rule 1.4 states that informed consent from a client is necessary. Under Rule 1.4(a)(1) I must “inform the client of any decision or circumstance with respect to which the client’s informed consent is required by these Rules.”
Class Notes 5/23/07:
· Must we take this case?
· Rule 1.16 has broad application
Problem 2 (pg. 59-61) Must We Take This Case
1) There is no rule that mandates a lawyer must take a case (pg. 61). Rule 1.2, Comment 5 states that a lawyer “should not be denied to people . . . whose cause is controversial or the subject of popular disapproval.” Taking on a particular case can (and probably will) be seen by the public as an endorsement of that particular cause or controversy. Rule 1.16 this is a broadly applying rule. More particularly, (b)(4)(6)(7) may withdraw from representation (and impliedly, prior to accepting a case) if . . . This rule would justify not taking on that client even though Rule 1.2 suggests you should take on unpopular clients. Rule 1.2 Cmt 5 states: “Legal representation should not be denied to people who are unable to afford legal svcs, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client, including representation by appt, does not constitute approval or endorsement of the client’s political, economic, social or moral views or activities. Rule 6.2 states that a lawyer is not duty bound to accept all clients when he is appointed by a tribunal. And the comments suggest the Rule extends to all attorneys, and an attorney need not accept all clients that walk through his door—he is allotted a certain amount of discretion, for it is his time and hard-work that will be put into the case (Comment 1). The objections raised by the partners are on an aggregate theory sufficient to justify declining to take Hemp’s case.
a. Under Rule 6.2(c), a lawyer may decline to represent a client if “the client or cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.” Furthermore, the attorney need not accept the client if he will suffer a signif
ly diff matters
You don’t have to discuss money to est. an atty-client relationship—you should make clear that there is no atty-client relationship
Pg.81, Kurtenbach test is fairly liberal, so an atty needs to act w/ an abundance of caution
Reasonable expectations and reliance of the putative client are important to cts evaluating the atty-client relationship issue
Problem 3: (pg. 79, I) Getting a Client and Getting Paid
1) I would say no. Rule 1.18(a) states: “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” Olive is a potential client of Anne’s. Olive had no further discussions with Anne regarding the matter, she never paid Anne any money, and she never stated that she was wanting Anne to represent her, nor did Anne collect a fee, discuss the matter further, or state that there was an atty-client relationship. “Most of the duties flowing fr the client-lawyer relationship attach only after the client has requested the lawyer to render legal svcs and the lawyer has agreed to do so (SCOPE, pg.4).”
Rule 1.4(b) states: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
2) She could have declined to answer Olive’s questions. Tennant’s reply was brief and informed the client that she was ready and willing to discuss the matter further, however, she probably should not have told Olive anything or told her something along the lines of: “I cannot discuss this matter with you in this setting, but if you would like to speak with me at my offc . . .” or “I can’t see the lease right now, so you should bring a copy and come see me.” or “Let me be clear, there has been no establishment of an atty-client relationship.” This may not make you very popular, but you need to protect yourself. Alice could have been proactive and asked Olive if it would be permissible for her to call Olive on Monday. . . Speak in generalities: Generally, a Landlord should . . .
Rule 1.18(b) states: “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation.”
3) There does not appear to be any Rule to suggest that Anne owed Olive any duty. Rule 1.18 may, however, impose some duties not to disclose the information she learned.
Pg. 81 states that once an atty-client relationship is formed, even to “casually rendered advice” recipients, that a lawyer who fails to perform competently will be liable for malpractice. Based on the K principle of detrimental reliance, if Olive used Anne’s advice and thought it sufficient bcz Anne is a practicing atty and that belief was not unreasonable, then Anne may be found liable for malpractice if Anne’s advice was cavalier and negligent (see pg. 81). Anybody can sue, but it probably will not be successful. The lawsuit would only be successful after a finding that there