PR Outline
RL: REST LGOVL: Restatement of Law Governing Lawyers
RA: REST Agency: Restatement of Agency
TDR: Texas Disciplinary Rules
Intro:
· Things to avoid: Being sued, Greivance, Disbarred, disqualified, Crim Prosecution, Lose job / fees / character / conscience.
· How to avoid: talk to other lawyers
o ABA formal Opinion 08-453
o In house ethics czars (to protect firm and you).
o MR 5.02 Responsibilities of a Supervised Lawyer: Lawyer is bound by these rules unless the lawyer acted in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional conduct. (ask for help for this protection)
o MR 5.1 Responsibilities of Partners, Mgrs, and Sup. Lawyers- (a) Firms must make reasonable efforts to ensure that the firm has made reasonable assurance that all lawyers in the firm conform to bar rules.
o TDR 5.1 is different: sup lawyer may not knowingly permit a violation and must take reasonable remedial steps when one occurs.
· When improper to talk to ethics czar?
o MR 1.6 Confidentiality of Information: (b) a lawyer may reveal info when lawyer thinks reasonable believes necessary (4) to secure legal advice about the L’s compliance with these rules.
o TDR 1.05: More general grant of permission to reveal confidences to other atty’s in own firm.
o Can’t act to client’s detriment without informed consent; sort of resolved by definition- client has an interest in L’s judgment, which requires L be informed on ethical propriety of actions.
o Ethics czar represents firm, not you- they can report misconduct to firm. They can also report you to the bar if conduct “casts doubt on your fitness to practice law”
· Rules: where they come from and why we have them in intro lecture. How people view us. Silver: morality in lawyering is how useful our services are: legal services that make people better off are good, those that make people worse off- bad; neither better nor worse than other professions- medicine, construction, etc.
Client Identity:
· RL §14: relationship between client and lawyer arises when:
o (1) a person manifests intent to get legal services and
§ (a) lawyer manifests consent
§ (b) lawyers fails to manifest LACK of consent, and the L knows or reasonable should know that the person is relying on L.
o (2) tribunal appoints the L to provide services.
o Illustration 4: Trier of fact can find that a client lawyer relationship came into existence when L failed to communicate that L was not representing D’s. (Sec. tells D to send in papers, doesn’t tell L, SOL passes, L can be held accountable).
o Comment C: Paying a L does not by itself create a client-lawyer relationship with the payor: ex. Insurance company designates a L to represent an insured.
o Comment B: L’s are generally free to decide which whom to deal; L can decline to undertake a representation that L finds inconvenient or repugnant.
o Silver: If someone reasonably relies on having the lawyers services- very loosely defined, “ties” will always go to the client… lawyer will be held responsible for all “close call” situations
· RA §15 Manifestation of consent: same as for Lawyers.
· TDR 1.12 (E): Organization as a client: when dealing with an org, L shall explain the identity of the client when an explanation appears reasonable necessary to avoid misunderstanding on their part.
· TDR 4.03 Dealing with unrepresented person: When L knows or reasonably should know that the unrepresented person misunderstands the L’s role in the matter the L shall make reasonable effort to correct the misunderstanding.
· TDR 2.02 Evaluations for use by 3rd persons
o Comment 4: L who makes an investigative contact which might cause the non-client to believe that the L is representing him in the matter should make that non-client aware that rules concerning client loyalty and confidentiality are not applicable.
· RL §15: Lawyers duties to a prospective client
o (1) when a person discusses forming a client-lawyer relationship and that relationship does not ensue, the L must;
§ a- not disclose confidential info from consultation
§ b- protect the persons property
§ c- use reasonable care to the extent the L provides the person legal services.
· RL §17 Client’s duties to Lawyer. Client must:
o 1. Compensate lawyer for services and expenses
o 2. Indemnify the L for liability to which the client has exposed the L without the L’s fault
o 3. Fulfill any valid K obligations to the L.
Elements of the Client-Lawyer Relationship
· RL §16: Lawyer’s duties to a client In General. A lawyer must:
o (1) proceed in a manner to proceeds client’s lawful objectives
o (2) act with reasonable competence and diligence
o (3) comply with obligations concerning confidences and property; avoid conflicting interests, deal honestly, not benefit from something adverse to the client.
o (4) fulfill valid K obligations to the client
o Comment F: What K’s between L and client can specify
· RA §376: “contracts rule”. Agents governed by K too.
o Comment A: agency law allows K’s to modify basic duties
· RL §19: Agreemnts limiting client or Lawyer Duties
o (1) can modify duties if:
§ a- client is informed and consents
§ b- terms of limitation are reasonable in the cirsumstances.
o Illustration 3: Waiver of reasonable compete
consultation
o 3. To the client, client’s representatives, or the members, associates and employees of L’s firm, except when otherwise instructed by client
o 4. When L has reason to believe it necessary in order to comply with court order, TDR or other law.
o 5. to the extent necessary to make a claim when in controversy with client.
o 6. To est defense to a criminal charge or discipline against the L based on the client or clients representation
o 7. When the L has reason to believe it necessary to do so in order to prevent client from committing crim or fraud
o 8. To extent reasonably necessary to rectify the consequences of clients criminal or fraudulent act when L was used in commission.
· MR 1.6 C: Exceptions for mandatory Disclosure. NEVER MANDATORY.
· TDR 1.05 E, F: Mandatory Disclosure
o E- when L has confidential info clearly est that client is likely to commit crim or fraud that is likely to result in death or subst bodily harm to person, L SHALL reveal to reasonable extent
o F- L shall reveal when required by Rule 3.03a2, 3.03b or 4.01b
· RL §60: L’s Duty to Safeguard Confidential Client Information
o 1. During and after representation of a client:
§ a- L may not use or disclose confidential info if it may adversely affect client or if instructed not to
§ b- lawyer must take steps to protect client info against use or disclosure of info against use by agents of L
o 2. Except as states, a L who uses confidential info of a client for L’s pecuniary gain other than in practice of law, must account to the client for any profits made.
o Comment L: no secrets between co-clients: L may represent 2 or more clients when there is no conflict of interest or they have consented, both co clients get to know confidential information- neither can assert atty-client privilege against the other later.
Perez v. Kirk & Carrigan: Perez drove Coke truck into school bus- Coke hired K & C- they went to his hospital room to get sworn statement- Perez then indicted by DA for involuntary manslaughter based on statement. K & C was found to have violated duties to Perez since he was
