I. Duties Lawyers Owe Clients
a. The Duty of Loyalty; Lawyers as Fiduciaries and Agents
i. Fiduciary has special obligations to care for the interests of the beneficiary/client, even when those interests are not aligned with the fiduciary’s own interests.
ii. Fiduciary owes to the client good faith, candor, and care.
iii. Fiduciary duties are related to agency law. Lawyer acts on behalf of the client, representing the client, with consequences that bind the client. In addition, the lawyer acts as an agent of a law firm.
iv. When you see a duty of loyalty violation, it is almost always because the lawyer acted out of self-interest, rather than client’s interest.
v. The core fiduciary duty case is on in which the client-plaintiff alleges:
1. self-interested conduct by the lawyer either
a. at the expense of the client or
b. making use of the client’s information or other resources; resulting in
2. a benefit to the lawyer, that
3. the client seeks to have disgorged by the lawyer and paid over to the client.
b. The Duty of Care
i. Think of tort law; the duty of care is about competence (in performing work for the client).
ii. Competence is distinct from malpractice; malpractice is meant to compensate those who have been harmed by the lawyer’s breach of duty, while the competence standard is meant to ensure an acceptable level of performance for the general public’s protection.
iii. See MR 1.1, 1.3 regarding competence and diligence.
c. The Duty of Confidentiality
i. The duty to maintain client confidences is broader than the attorney-client privilege; it applies all the time, and forbids lawyers from using client information for the lawyer’s own benefit as well as from disclosing such information.
ii. Duty of confidentiality recognized by disciplinary rules is narrower than duty of confidentiality created by agency law; see MR 1.6 and CA 3-100, which provides an even narrower exception to the rule against disclosure.
d. United States v. 7108 West Grand Avenue
i. Utilitarian reasons; where a lawyer is an agent for a client, the law of agency sometimes imputes to the client the consequences of a lawyer’s acts or omissions. Such imputation protects 3rd parties whose interests a lawyer may affect, and gives lawyers incentives to act carefully when representing clients.
ii. Holding the client responsible for the lawyer’s deeds ensures that both clients and lawyers take care to comply.
of the agent to affect the legal relations of the principal by acts done in accordance with the principal’s manifestations of consent to him.”
1. It is created by the principal’s consent that the agent act on his or her behalf – communications between the client and the lawyer in which the client grants authority.
ii. Apparent authority is “the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.”
1. Apparent authority is created differently from authority; it is created by a principal’s “manifestations” to third persons with whom the lawyer might deal.
b. Client Calls
i. MR 1.2(A); 1.4. Restatement 19-23
ii. Authority to Settle Civil Matters
1. In re: Grievance Proceeding
a. The attorney’s fee agreement
i. Delegated to the attorney complete discretion with respect to any settlement offers;
