Professional Responsibility Muth Summer 2015
I. Introduction
– The Role of Judgment in Law
o Sources of trouble
§ Disciplinary trouble with the bar
· Taking license, suspending license, review
§ Civil Liability
· Sued by clients
o 3 Types of Thinking
§ Interactively – Not only what you want, but what all the other actors want
§ Dynamically – think beyond just one step ahead
§ Probabilistically – must deal with uncertainty; comes with experience
– When Silence Isn’t Golden
o Partner lies to judge in open court, associate knows it is a lie and doesn’t speak up
o Right Answer: You have to say something, recess may be best, but may not be granted
– Where Laws Governing Lawyers Come From
o 5 main sources of potential rules for attorneys
§ Generally Applicable laws
· Standard law, not necessarily specific to lawyers (ex. sexual harassment)
§ Agency/Fiduciary Rules
· Loyalty, Care, and Confidentiality
§ Rules creating duties to non-clients
· Parties you interact with on behalf of client, general public, court, or potential clients
§ Rules of professional conduct/state disciplinary rules
· Rules/Violations that go directly toward your license; suspensions, revocation, etc.
§ Specific tribunals/agencies
· Rules dealing with specific government agencies
– Six Rules of Survival
o Never create a duty you don’t want to create
o Always be prepared to walk away
o Assume everything you do or say will become publicly known
o Never mistake the client’s problem for your own
o Never do as a lawyer anything you find repugnant as a person
o If you mess up, fess up
II. Duties Lawyers Owe Clients
A. The Duty of Loyalty
– Story of Daniel Bib
o Assigned prosecutor thinks D are innocent, boss orders to defend conviction, sandbags his case to help defense
o Violated the Duty of Loyalty; should have gone through proper channels or withdrew
B. The Duty of Care
– Story of Joseph Muto
o High volume, low cost immigration law; misses court deadlines; shows up and doesn’t know 4 of his clients
o Violated the Duty of Care
C. The Duty of Confidentiality
– Coventry and Kuntz
o 26-year secret
o Did not violate the duty of confidentiality
– Model Rule 1.6
o (b) key word, may, not must
o (1) – Prison probably not serious bodily harm, means imminent threat to life or body
o (2) & (3) – don’t apply; lawyer’s client was not using their services for murder charge because the client wasn’t charged with it
– California puts this above all
o Got rid of most exceptions, leaving really only (b)(1)
D. An Overview of the Implications of Loyalty, Care, and Confidentiality
– United States v. 7108 West Grand Avenue, 15 F.3d 632
o Forfeiture hearing; Flores (owner) in prison on federal drug charge; lawyer fails to timely file, U.S. seeks default judgment; lawyer didn’t show up
o Flores gets new council; he says old counsel was grossly negligent
o Agency rules – Client bears the negligence of the attorney even though duty of care is breached
– Tante v. Herring
o Claim: Lawyer used confidential information to induce his client to sleep with him
o Lawyer wins the case
o Breach of duty case for sexual misconduct
§ Duty – employment of attorney
§ Breech – failure to exercise ordinary care
§ Damages
o Can you sue for malpractice if you win? NO
o Can sue for breach of fiduciary duties
§ Care – failure to provide the services of basic attorney
§ Loyalty – breached by self-serving conduct, more malicious
§ Contract – not fulfilling the contract with the client
§ Confidentiality – didn’t disclose confidential info, but used to seduce client
§ Court analogizes confidential info to money, here he used her confidential info
– Barbra A. v. John G.
o L has sex w/ client; sues for fees later; client countersues for battery; slept with L b/c he couldn’t have kids; C got pregnant, went wrong, now sterile; sues for breach of fiduciary
o Court – confidential relationship, not fiduciary, one step less
o Model Rule – can only have sexual relations if it starts before attorney-client relations
o California – can as long as it is not required as part of contract, or achieved via coercion
– Chapter Summary
o All lawyers owe fiduciary duties to clients
o Agency is one type of fiduciary relationship
o Most lawyers are agents and are bound by agency law
o The true fiduciary duty is the duty of loyalty. It requires lawyers to put the interests of their clients first – ahead of the lawyer’s personal interests
o The duty of care requires lawyers to act carefully as defined by the standards of practice for the relevant subject matter and geographic area
o When lawyers fail to act carefully the law may hold the client responsible for the lawyer’s misconduct, leaving the client to settle up with the lawyer
o The duty of confidentiality requires lawyers not to use confidential client information for their own personal benefit or to the likely detriment of the client, and not to disclose confidential information without the client’s consent
o Confidential client information is information relating to a representation that is n
ould rather die
· Judge – L cannot use expert testimony on mental health
· L uses non-expert testimony; K finds out, writes judge; judge says it is L’s call; K tries to commit suicide
· K asks to represent himself; L says it isn’t to create delay; Judge thinks it is; L negotiates deal to take away death penalty; 9th cir affirms, doesn’t rule on tactic
D. Unbundling
– Agreement between lawyer and client that the lawyer will provide some but not all services necessary to resolve the client’s problem
– Chapter Summary
o Fiduciary duties and disciplinary rules give clients final authority over some things and lawyers final authority over others. In general clients control the ends of representation and lawyers control come of the means, subject in some cases to lawful client instructions.
o Where the law does not allocate authority the lawyer and client may do so either through implication from the facts of the job at hand or by agreement
o Lawyers and client may not by contract alter authority allocated by law; attempts to do so look suspicious and may violate Model Rule 1.2
o The keys to understanding legal (mandatory) allocation of authority are the purposes and goals of representation and third-party costs
o All else being equal, the more a decisions affects the client’s ultimate goal in the representation, such as settlement or a plea, the more likely it is that the decision is the client’s to make
o All else being equal, the more a decision affects the costs of litigation (especially third party costs) the more likely it is the lawyer’s decision to make
o Clients therefore have more control over non-litigation matters than litigation matters, because decisions outside litigation impose fewer non-avoidable costs on third parties
o Lawyers may limit the scope of a representation, taking on responsibility only for some subset of issues or tasks, so long as the limitation is reasonable and the client gives informed consent. Limited representation may increase the risk of violating a Model Rule provision; some jurisdictions are adopting special rules pertaining to limited representation.
