PROFESSIONAL RESPONSIBILITY
MCGOWAN/FALL 2010
INTRODUCTION
1. Judgment
a. The ability to evaluate all aspects of a situation and choose ht course of action most likely to achieve a given goal.
b. Important elements of judgment
i. Interaction: judgment requires that you identify all the parties affected by a decision and think through what their interests are and what they want to achieve.
ii. Dynamic: must think ahead
iii. Probabilistic: Dealing with uncertainty
2. Situation
a. Intersection of interests relative to a problem or problems.
i. Problem: a difference between the way things are and the way at least one person in a situation wants them to be.
1. May be entirely personal but a situation is social.
2. Problems are solved by moving the state of affairs to how you want them to be.
b. Strategy space: the set of choices available to solve a problem.
i. Choose your action depending on what others are likely to do.
c. Determining Players: Anyone likely to be affected by the problem or a possible solution is part of the situation.
i. ALWAYS IDENTIFY THE RELEVANT PLAYERS.
3. Perception and Categorization
a. Perception involves the act of categorization.
i. Categories help predict behavior or properties of a person or thing and thereby guide your own actions toward the person or thing.
b. Salient characteristic: relevant to predicting the attributes or behavior of a thing or a person that you are interested in given your purposes.
i. Fit test: if the behavior or results of are consistent with category choice.
4. Risk tolerance: Know how much risk you are willing to take.
5. Six Rules of Survival
a. Never create a duty you don’t want to create.
b. Always be prepared to walk away.
c. Assume everything you do or say will become publically know.
d. Never mistake the client’s problem for your own problem.
e. Never do as a lawyer anything you find repugnant as a person.
f. If you mess up, fess up.
___________________________________________________________________________
I. DUTIES TO CLIENT—OVERVIEW
1. Reasons for Duties
a. Reduces the cost of contracting for legal services by supply default rules that everyone would want.
b. Protects clients from over-reaching, opportunistic behavior.
i. Centers around the idea that lawyers are more powerful.
2. Duty of Loyalty
a. Requires lawyer to put the clients interest ahead of their own and do nothing to harm the client. MR 1.7
b. Fiduciary duty to client
i. The duty of an agent to treat his principal with the utmost candor, rectitude, care loyal, and good faith; treat the principal aw well as the agent would treat himself.
1. Prevents misplaced trust.
ii. Agency: fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principals behalf and subject to the principals control and the agent manifest assent or otherwise consents to act. Res. 1.01
1. An agent owes a duty to act loyal for all matter connect with the agency relationship. Res. 8.01
c. RAMIFICATIONS: Fiduciary duty tort claim and model rule discipline.
i. Can be sued in tort even if you are disciplined.
d. Duty of loyalty = betrayal and faithlessness; acting in self interest
3. Duty of Care
a. Requires the lawyer to act reasonably and live up to the standard of care of a reasonable lawyer doing similar work in similar circumstances. , MR 1.1; Res. 16(2), 52
b. Ramifications: Tort—negligence, discipline
c. Duty of Care = mistake or accident; foolish, lazy, debilitated.
4. Duty of Confidentiality
a. Should not use information for your own gain or disclose information you have gained through representation unless you are using that information for the practice of law or you are required by law to disclose Res. 59-60
b. Broader than the atty-client priv. (priv = rule of evidence; duty = all info obtained)
c. Confidential Information = information not generally known
d. Rule 1.6: Only allows for disclosure when it is reasonably believed that the client intends to commit an act reasonably certain to result in injury or death, or when the client is using or has used the lawyer’s services to commit a crime or fraud that has harmed the financial interests of a third party. (Option not required disclosure).
e. Duty of Confidentiality = carelessness or self interest.
f. Duty of confidentiality makes client trust atty.
g. Should be treated as an aspect of loyalty and care; however, lawyers and discipline committees treat them separately.
5. Sexual Relations with Client
a. Not a breach of care unless causes lawyer to do job ineffectively.
b. Could be a breach of loyalty/confidentiality if
ns within bounds of manifestation.
a. Actual Authority
b. Implied Authority
i. Atty is allowed to take the acts necessary or incident to achieving the principals objectives
ii. Type of Actual Authority
c. Apparent Authority
i. The power held by an agent or other actor to affect the principals legal relations with third parties when the their party reasonably belies the actor has authority to act on behalf of the principal and that belief is traceable to the principals actual manifestations.
1. Words or conduct communicated to a third party that give rise to the appearance and belief that the agent possess authority to enter into the transaction.
ii. Created by representations from the principal to the third party
iii. See Fennel v. TLB Kent Company (holding that there was not authority because there were not actual representations to the opposing party.)
d. Inherent Authority
i. Power of an agent which is derived not form authority but from the agency relations and exists for the protection of person harmed by or dealing with a servant or other agent; power that inheres in you because of your position
ii. Only relevant whether there is nota actual authority; authority inheres in some position held by an agent or in some set of contextual facts.
iii. Types of agents:
1. General agent: authorized to conduct a series of transactions involving a continuity of service (insurance agent; store clerk)
2. Special agent: authorized to conduct a single transaction or a series of transactions not involving continuity of service (most lawyers)
iv. Doctrinally this power does not exist but it the real world you will see it manifest itself in the fact that judges believe you have certain powers to do things
