Fall 2013 – Professional Responsibility – McGowan
1. Six Rules of Survival:
a. Never create a duty that you don’t want to have: Lawyers assume duties by agreeing to do so, by doing things that induce non-clients to reasonably rely on the lawyer to have acted competently or to maintain confidential information.
b. Always be prepared to walk away: Be prepared to quit your firm, or fire your client; AND always be prepared to be fired by your firm or by a client. You will be better prepared to handle situations if you’re prepared to walk away.
c. Assume everything you do or say will become publicly known.
d. Never mistake a client’s problems for your own: Lawyers who view a case as a personal contest are more likely to do the wrong thing than lawyers who keep their perspective.
e. If you mess up, fess up: It is the cover-up that kills you.
2. Duties Lawyers Owe to Clients:
a. Duty of Loyalty (Fiduciary Duties): True fiduciary duty—duty to treat principal with the utmost candor, rectitude, care, loyalty and good faith (treat the principal as well as the agent would treat themselves).
i. Requires the lawyer to place his clients’ interests ahead of his own—this means the agent acts solely for the benefit of the principal. You cannot use information to the benefit of yourself and to the detriment of the client.
1. Comply with obligations concerning the client’s confidences and property, avoid impermissible conflicting interest, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client.
ii. When an attorney breaches his duty of loyalty the client sues for breach of fiduciary duty (in its own tort). Duty of loyalty can be altered by contract through client consent.
iii. An agent may not:
1. Acquire a material benefit from a third party in connection with the agent’s actions as an agent; take a position adverse to the principal regarding a matter related to the scope of the agency; compete with the principal or assist the principal’s competitor; use principal’s property or engage in conduct that is likely to damage the principal’s enterprise.
2. Purpose is to vindicate trust and confidence clients are presumed to place in lawyers.
b. Duty of Care: This duty corresponds to negligence and malpractice. The duty of care requires lawyers to act carefully in performing work for their clients—judged by the prevailing standards of professional competence in the relevant field of law and geographic region.
i. A lawyer must, in matter within the scope of representation: act with reasonable competence and diligence. For purposes of liability, the lawyer owes a duty of care and must exercise the competence and diligence normally exercised by lawyers in similar circumstances. – This requires you to seek guidance when necessary—do not assume someone watching over you.
ii. Typically before the duty of care is owed, an attorney client relationship must be formed. However, a lawyer who invites a non-client to rely on the soundness of her opinion may be liable to the non-client for malpractice. (lawyer wrote an opinion to assist client to get a loan—could be liable to lender who is third party).
iii. Requirements Relating to the duty of care:
1. 1.1 Competence: requires the legal knowledge, skill, thoroughness, and preparation reasonable necessary for the representation.
a. –if a lawyer is not competent, the must seek supervision to provide competent representation.
2. 1.2c Scope of representation: A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
a. –Liability can exist if an attorney failed to advise. Not only should an attorney furnish advice when requested but they should volunteer opinions when necessary to further clients objectives. (only those that may result in adverse consequences)
3. 1.3 Diligence: A lawyers shall act with reasonable diligence and promptness in representing a client.
4. 1.4 communication: A lawyer shall:
a. Promptly inform the client of any decision or circumstance to which the client’s informed consent is required: informed consent is an agreement by a person to a proposed course of conduct and the lawyer has communicated adequate information and explanation about the material risks or and reasonable available alternatives to the proposed course of conduct.
b. Reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
c. Keep the client reasonably informed about the status of the matter.
d. Promptly comply with reasonable requests for information
e. Consult with client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the rules of professional conduct or other law.
f. AND a lawyer shall explain a matter to extent reasonably necessary to permit client to make informed decisions regarding representation.
iv. In a civil case: breach of duty of care is civil liability/ discipline under MR 1.1 . In a criminal case discipline under MR 1.1/ civil liability—subject to the actual innocence rule/ retrial if the breach satisfies the Strickland test.
1. To prove malpractice in a civil claim (negligence claim): The client must show that but for the lawyers conduct, the client would have gotten a better result:
a. (1) owed a duty; (2) breached it [by conduct below the standard of care]; client suffered harm [actual damage]; (4) breach was actual and legal cause of damages suffered (but for test). In litigation this forces a trial within a trial to determine the merits of the underlying suit. Non-litigation it requires proof of a better result—such as more favorable contract terms.
2. Ineffective assistance of counsel (Strickland): you do not get damages, you get a new trial, or a new sentencing. Actual factual evidence is not an element of this cause of action.
a. Strickland: The right to counsel means the right to effective counsel:
b. You need to show two things to show ineffective counsel. Failure to show either, the criminal petitioner loses:
i. Error (that counsel’s performance was deficient):
(1) The performance negligence prong:
a. Begins with the presumption that the lawyer is competent.
b. Burden is on the defendant to show lawyer’s behavior was deficient—fell outside the range of reasonable conduct (must point to a specific act or omission).
(2) Prejudice prong.
a. Defendant must prove that he was prejudiced by counsel’s deficient performance. Prejudice (injury of damage resulting from some judgment or action): Must be prejudicial to the defense in order to constitute ineffective assistance under the constitution.
b. Defendant must show that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Reasonable probability (which is a probability sufficient to undermine confidence in the outcome) that but for counsel’s unprofessional errors, the result would have been different.
ii. Unless the conduct stems from a conflict of interest, in which case the defendant must show: (1) an actual, active conflict that (2) adversely affects the lawyer’s performance.
v. Examples of when Prejudice is presumed (therefore ineffective assistance)
1. Actual denial of counsel: prejudice is presume—counsel ineffective
2. Interference with AC relationship (if state extorts defense attorney or obtains privileged information)
3. Actual, active conflict affecting performance: prejudice presumed—ineffective assistance
4. Strickland protections extend to plea bargaining—counsel must advise client: re deportation effect of plea.
vi. Special obligation to prosecutors
1. MR 3.8: [prosecutors are not simply advocates of state, but administers of justice. As a result they:
a. Cannot bring charges they know are not supported by probable cause;
b. Must make reasonable efforts to advise and give the defendant counsel;
c. May not seek waiver of important rights from unrepresented persons;
d. Must timely disclose information that tends to show the accused is not guilty or mitigates level of guilt
refrain from making extrajudicial comments that would heighten public condemnation of accused
e. If new credible evidence creates reasonable likelihood that possibly exculpates convicted defendant must disclose evidence to court or proper authority and if conviction was in prosecutor’s jurisdiction, must disclose evidence to defendant and investigate further;
f. Must seek to remedy conviction if prosecutor knows of clear and convincing evidence showing that a defendant in the prosecutor’s jurisdiction was convicted of a crime the defendant did not commit.
i. [if prosecutor makes mistake with weighing evidence in good faithànot a rule violation]
c. Duty of Confidentiality: Duty of loyalty requires lawyers to put their client’s interests ahead of their own, which includes keeping their information confidential, and not exploiting information for their own benefit. Confidential information includes all information relating to the representation of a client, other than information that is generally known. This rule extends to include both the disclosure and use of such information.
i. Counsel must disclose confidential information if required by law, unless the confidential information is also privileged.
ii. Counsel may reveal information relating to the representation is the client gives informed consent (expressly or by implication).
iii. Exceptions: Some exceptions allow disclosure to prevent reasonably certain death or substantial bodily harm, to prevent or rectify substantial financial harm caused by a client and in which your services were or are being used, to obtain advice about your obligations under the rules, to establish a claim or defense in a controversy with a client, to respond to allegations regarding your representation, or to detect and resolve conflicts when moving from one firm to another.
iv. Confidentiality applies to all information not generally known that an attorney learns in the course and scope of representing a client. The duty applies at all times. Confidential information remains confidential if known to others, as long as it is not generally known. (Contained in books, records in public libraries, electronic databases [public domain]. Not generally know when person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense.
v. A lawyer who uses client information for the lawyer’s pecuniary gain other than in the practice of law, must account to the client for any profits made.
vi. **Side: 1.8: a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the lawyer-client relationship commences.
Duty of Confidentiality
Covers
All information relating to representation not generally known
Applies when
at all time
Effect
Forbids voluntary disclosure (but not discloser required by law) or use of information that harms clients, or outside the practice of law.
Controlled by
Client
Exceptions
Prevent death or serious bodily injury; prevent or rectify serious financial harm in which L’s services have been used; self-defense (respond to allegations of representation-related misconduct) seek advice about compliance with rules; disclosure required by law
b. When a successor corporation continues the business operations of the pre-merger entity, the ACP rights re: operations communications pass to the buyer. (Tekni-plex).
c. Test to determine joint representation (Independent A-C relationship for entity constituents).
i. The must show they approached counsel for the purpose of seeking legal advice.
ii. The must demonstrate that when they approached counsel they made it clear that they were seeking legal advice in their individual rather than in their representative capacities.
iii. The must demonstrate that the counsel saw fit to communicate with them in their individual capacities, knowing that a possible conflict could arise.
iv. They must prove that their conversations with counsel were confidential.
v. The must show that the substance of their conversations with counsel did not concern matters within the company or the general affairs of the company.
1. Entity can waive privilege with respect to communications about general affairs to the entity. Even where an entity lawyer creates a personal A-C relationship with an entity constituent, the entity controls the privilege with regard to all work-related communications. Communications cannot be privileged if matters relate to duties to the corporation.
d. Exceptions to the privilege:
i. Communications furthering crime of fraud: Where the purpose/consequence of a consultation is to commit a crime of fraud, communication in connection with that consultation are not privileges—it does not matter whether the lawyer knows of the fraud or is an innocent pawn. There are two conditions: (1) the client must have made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act; AND (2) the client must have carried out the crime or fraud.
1. The person seeking to claim the privilege must introduce countervailing evidence. The standard is reasonable cause to believe the attorney’s services were utilized in furtherance of the unlawful scheme.
ii. Joint Clients: When a lawyer represents clients jointly—the default in practice is that there is not a privilege between joint clients. You need to make clear in writing whether information is going to be shared between them—this should be within the retainer, but consent can be withdrawn at any time. A lawyer who represents joint clients may share with client communications with both clients without waiving confidentiality. (This is not the same as a concurrent representation—which the representation is at the same time, but comomunications between a&b and a&c are privileged. You must write explicitly that is it not a joint representation—no waiver of duty, but an affirmation of distinct privileges.—if this is not built into the initial retainer, it should be amended to represent this). The communication must be made through an attorney. If to clients communicate, it’s a waiver!
1. If the joint clients wind up in litigation against each other neither client may assert the privilege against the other.
2. Each co-client may waive privilege with respect to his or her own communications with counsel, but no co-client may waive privilege with respect to another client’s communications.
3. When a joint attorney sees the co-clients’ interest diverging to an unacceptable degree, the proper course is to end the joint representation.
a. When an attorney improperly represents two clients whose interests are adverse, the communications are privileged against each other notwithstanding the lawyer’s misconduct.
iii. Common interest Exception to waiver: Counsel can enter into a joint defense agreement. This term applies when several parties have a common legal interest and its purpose is to create and exception to the rule that disclosure of confidential communications waives the attorney-client privilege.
1. A joint defense agreement entered into by defendants must be in writing, signed by defendants and their attorneys, and submitted in camera to the court for review prior to going into effect.
2. Each joint defense agreement submitted must explicitly state that is does not create an attorney-client relationship between an attorney and any defendant other than the client of that attorney. No joint defense agreement may purport to create a duty of loyalty.
3. Each joint defense agreement must contain provisions conditionally waiving confidentiality by providing that a signatory attorney cross-examining any defendant who testifies at any proceeding, whether under a grant of immunity or otherwise, may use any material or other information contributed by such client during the joint defense.
4. Each joint defense agreement must explicitly allow withdrawal upon notice to the other defendant
