Legal Profession
Lininger
Spring 2015
I. Introduction and Background
a. Failure to Report Another Lawyer’s Misconduct
i. Reporting Professional Misconduct – Rule 8.3- a lawyer having knowledge that another lawyer has committed a violation of the Code that raises a substantial question as to that lawyer’s honesty, as a lawyer in other respects, shall inform the appropriate professional authority. RAT OUT YOUR FRIENDS!!!
1. Important to Self-Regulation – this is an obligation based on lawyer self regulation, the comment notes that it is particularly important where the victim of the conduct may not become aware of it.
2. Definition of “Substantial” – is defined by the comment as referring to the seriousness of the offense and not the evidence of which the lawyer is aware.
3. Subject to Client Privilege – by the comment, lawyers are not required to report the violations of their clients who are lawyers, and therefore protected by Rule 1.6.
b. Elements of the Client-Lawyer Relationship
i. Competence
1. Competence – Rule 1.1 – the rule provides that a lawyer shall provide competent representation to a client – the required elements of such representation is knowledge, skill, thoroughness and preparation. This rule does not require a pattern of misconduct to be violated, but only a single violation
2. Legal Knowledge & Skill- a lawyer must have the knowledge a skill to handle a case – the rules note that competence is to be presumed and allow competence to be established through preparation or association – thus incompetence is often only a result of failure to seek it.
a. Factors in Determining Necessary Skill- the rule enumerates several factors to be used by lawyer/board to determine if he/she is competent to handle a matter:
i. Relative Complexity or Specialized Nature of Representation
ii. General Experience of Lawyer-
iii. Training in a Specific Field-
iv. Preparation & Study of Lawyer-
v. Ability to Refer Matter
vi. Ability to Consult Other Lawyer
ii. Confidentiality
1. Case of Karen Doe, Perez v. Kirk & Carrigan (p.29)
2. Confidentiality – Rule 1.6- A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are implicitly authorized in order to carry out the representation. Note that this rule is much broader than the Attorney-Client Privilege Evidentiary Rule.
a. Exceptions to Rule- the rule has a couple of qualified exceptions, under this situation a lawyer may reveal a client confidence:
i. Future Criminal Act- to prevent a client from committing a criminal act that the lawyer believes likely to result in imminent death or great bodily harm. However, the lawyer should first attempt to dissuade the client from the course of action.
1. reasonable belief – definitions – lawyer of reasonable prudence and competence would ascertain the matter in question
2. Inquiries:
a. Is person a client?
b. Does he think he is a client?
c. Jurisdiction?
d. Is what was said confidential?
3. RULE CHANGES:
a. Does not have to be criminal
i. Prod. liab. ok
b. Does not have to be imminent
ii. Establish/Defend Claim Against Client- such a fee collection, etc.
1.
iii. Defend against charge/claim based on conduct on behalf of client- in order to clear the lawyer’s name in suits involving fraud etc. The claim need not be actually filed, but merely threatened by a third party. Confidences should only be revealed to the point necessary to exonerate the lawyer.
iv. Compelled by Court Order – where a competent court requires disclosure of information, such an order trumps the rule. (Comment 19)
v. MR 3.3 – must reveal to tribunal or judge to avoid assisting a criminal or fraudulent act by the client
1. MR 4.1 – do not have to reveal to 3rd person – even if fraud
b. Authorized Disclosures- a lawyer may be authorized by the client to make certain disclosures of otherwise confidential facts – this authority may be explicit or implicit. Additionally, a lawyer may discuss confidential information with other members of the firm, unless otherwise instructed by the client.
c. Continues After Termination of Relationship – note that duty of confidentiality continues even after the termination of the relationship.
i. Even where Withdrawal Compelled – even where the lawyer was compelled to withdraw based on client’s illegal actions – the lawyer must still not reveal any client confidences.
d. Comment 5 – observations are probably privileged
e. Reporting is voluntary (some states must report!!)
3. Lawyers for Entities
a. Organizational Clients – Rule
tion initiated by ‘ee to corp. counsel concerning ‘ee’s own conduct w/in scope of employment is privileged
1. excludes witnesses
2. less protection than Upjohn
iii. OVERRULED BY LEGISLATION
1. privilege if getting info:
a. for purpose of providing legal advice to corp. or ‘ee
b. for purpose of obtaining info to provide legal advice to corp.
2. BROAD – like s/m test – Upjohn
iii. Agency
1. Taylor v. Illinois – b/c of atty. mistake client could not have testimony of a witness (6th Amend.)
a. Ct. – maj. – client must accept consequences of atty. decisions
b. MR 1.2 (comment 1) – lawyer and client should consult on ends of representation, lawyer has more power to decide means to get to end???
i. Failure to identify client – means
2. Cotto v. U.S. – atty. did not really try the case, let it sit, lots of mistakes (civil)
a. Only leaves the client w/ a civil malpractice claim
3. vicarious admissions – atty. through vicarious admission can bind the client (press, negotiations, ct., etc.)
iv. Fiduciary – if atty. is negligent – must reveal it to the client
1. watch out for self-dealing, divided loyalty, secret competition w/ client
v. Attorney Duties
1. Loyalty and diligence
a. Loyalty – survives after end of atty.-client relationship (confidentialty – MR 1.6)
b. Diligence – represent client zealously, pursue clients interests w/o undue delay
2. Inform & Advise
a. Nichols v. Keller – atty. did not tell client about 3rd party action, was only retained for worker’s comp. claim, S/O/L ran on 3rd party claim when client learned of its existence
i. Should atty. have to tell client about other possible claims?
1. YES -tension with MR 1.2(c) – Limit on Services/Scope of Representation (sub. C)- a lawyer may after initial consultation limit the scope of his representation of a client to certain matters- if the client consents. Terms of representation may represent limits on scope or objectives of the representation. The agreement may exclude objectives that the lawyer find repugnant or imprudent.
