ETHICAL LAWYERING
MARTYN
SPRING 2013
The Law Governing Lawyers
a. RLGL § 1 –Upon admission to bar of any jurisdiction, a person becomes a lawyer and is subject to applicable law governing such matters as
i. Professional discipline
ii. Procedure and evidence
iii. Civil remedies, and
iv. Criminal sanctions.
b. Rules of Professional Conduct or Lawyer Codes
i. Violation results in professional discipline RLGL § 5
c. General Law (civil and criminal, statutory and common law) applied to lawyers
i. RLGL § 6 – Judicial Remedies Available to Client or Nonclient for Lawyer Wrongs
1. Awarding a sum of money as damages
2. Providing injunctive relief, including requiring specific performance of a contract or enjoin its nonperformance
3. Requiring restoration of a specific think or awarding a sum of money to prevent unjust enrichment
4. Ordering cancellation of reformation of a contract, deed, or similar instrument
5. Declaring the rights of the parties, such as determining that an obligation claimed by the lawyer to be owed to the lawyer is not enforceable
6. Punishing the lawyer for contempt
7. Disqualifying a lawyer from a representation
8. Forfeiting a lawyer’s fee
9. Denying the admission of evidence wrongfully obtained
10. Dismissing the claim or defense of a litigant represented by the lawyer
11. Granting a new trial
12. Entering a procedural or other sanction
ii. Multiple Consequences
a. Law of crime read into professional rules (if you commit a crime you can be subject to professional discipline as well)
2. Remedies are Multiple as well.
d. Views of A Lawyer’s Role
Instrument
Collaborator
Director
Also known as…
Hired gun, plumber, cab driver, prostitute
Wise counselor, teacher, friend
Traditional paternalist, professional officer of the legal system
Focus
Clients rights and goal
Clients interests within the bounds of the law
Law and the legal system, professional rights
Values
Clients values dominate
Joint moral accountability
Lawyer’s values dominate
Philosophy
Deontological duties to and rights of clients (it can take a lot of conflict)
Respect for clients, concern for outcome and professional relationship
Utilitarian greatest good results from respect legal advice
View of Law
Malleable means to pursue clients desires
Moral norms that apply to human behavior
Means to promote social stability and order
Five Fiduciary Duties
Duty
Model Rule
Language
Communication
1.4
He shall: (1) promptly inform client of any decision or circumstance which requires informed consent (2) reasonably consult with client about the means by which the client’s objectives are to be accomplished (3) keep the client reasonably informed about matters (4) promptly reply to requests for info (5) consult with client about any limitation on the lawyer’s conduct when the client asks for assistance that violates professional rules.
Control/Diligence
1.3
He will act with reasonable diligence and promptness in representing a client
Competence
1.1
He shall provide competent representation to a client, including legal knowledge, skills, thoroughness and preparation.
Confidentiality
1.6
He shall not reveal info relating to representation of a client. Unless (1) she gives informed consent (2) the disclosure is impliedly authorized in order to carry out representation or (3) the disclosure is permitted by below.
He MAY reveal info relating to representation of client to extent he reasonably believes necessary to prevent death/harm, committing crime, financial loss, advice about MR compliance or other law.
Conflict of Interest
1.7
In general, he will NOT represent concurrent clients if there interests are adverse or if client (or a past client) will materially limit the representation of another.
EXCEPTION – (1) he believes he can provide competent & diligent representation to each client (2) representation is not prohibited by law(3) the representation does not involve a claim by one client against another in litigation or in a tribunal and (4) all parties give informed consent.
Judicial & Professional Regulation of Lawyers
a. American Bar Association (ABA)
i. Voluntary membership and NO disciplinary power – comes from courts
1. Supreme court = ultimate authority
2. State’s highest court = determines the rules for the state.
1. ADMISSION to PROFESSION Rule 8.4
a. Morally Fit – violation of these will result in discipline
i. Honest
ii. Trustworthiness
iii. Fitness to Practice Law
1. ** It is applicants BOP to establish himself as such.
2. ** Conduct, NOT speech (In re Hale)
b. STATE REQUIREMENTS for admission to bar
i. Need to be rationally related to practice of law
1. Rational =
a. Education from ABA accredited
b. Refusal to take an oath to uphold state or federal constitution
2. NOT rational = residence in state or US citizenship
c. Reporting Requirements
i. Lawyer Reporting:
1. A Lawyer cannot recommend another person/lawyer for membership to bar if he KNOWS of conduct that raises a substantial question as to the person/lawyer’s HONESTY, TRUSTWORTHINESS, FITNESS to practice la.
a. MUST report when know lawyer’s behavior raises substantial question of moral fitness.
i. “know” of misconduct = if reasonable lawyer under same or similar circumstances would have known that the conduct raises a substantial question as to moral fitness.
1. Do not have to SEE it, can hear he committed act.
b. EXCEPT
i. If information is protected by A-C privilege or duty of confidentiality
ii. Information learned as part of an approved lawyer’s assistance program.
c. Good applicant = input is aspirational, not mandatory.
ii. Applicant Reporting
1. All aspects of an applicant’s past conduct are subject to review.
2. Duty to answer ALL questions as asked – best practice to disclose more than is asked.
a. UNLESS information is protected by A-C privilege or duty of confidentiality or learned through an approved lawyer’s assistance program.
3. An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, SHALL NOT
a. Knowingly make a false statement of material fact; or
b. Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admission or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule
iii. Alcohol/Chemical Dependency – Mitigating Factors
1. Medical evidence that respondent is affected by dependency
2. If that caused the misconduct
3. The recovery is demonstrated by a meaningful and sustained period
d. See also dual profession lawyers and their duties.
6. Disbarred/Suspended Lawyers
a. Cannot practice law
b. If disbarred name must be removed from the firms name
c. Lawyer who assists disbarred or suspended lawyer in the practice of law subject to discipline
d. Cannot collect fees from clients for work done by firm after the disbarment or suspension.
7. Fee Division with NON-LAWYER
a. Generally – CANNOT share with non-lawyer.
b. EXCEPTIONS
i. Fill in heirs of deceased attorney
ii. Employees
1. In form of salaries, part of pension, or bonus plans
iii. Share with non-profit org what employed, retained, recommended employment of lawyer in matter
1. So you do pro bono and win – give that money to the organization.
The Client Lawyer Relationship
The relationship between a lawyer and client is contractual. Terms of K are derived from custom and mutual agreement. Lawyer is both client’s fiduciary AND agent.
FORMATION OF RELATIONSHIP
1. General Rule – client is one who he reasonably believes the client is (usually have freedom to reject)
2. Implied Assent & Reasonable Reliance:
a. Client – Attorney Relationship arises when: RLGL 14
i. Person manifests to lawyer the person’s INTENT that lawyer provide legal services for the person and either
1. Lawyer manifests to person consent to do so (gives legal advice – Togstad)
2. Lawyer fails to maintain lack of consent to do so AND lawyer knows or reasonably should know that person reasonably relied on lawyer to provide those services.
3. Court Appointment
a. Court has inherent power to compel an attorney to represent a client pro bono
i. Should do so when necessary and within discretion
ii. Court must make sure client cannot get lawyer due to indecency and not because the claim lacks marketability
1. Bothwell Marketability Analysis
a. Is there a market of lawyers to practice in area?
b. Does P have access to that market? (Physical, communication)
c. Typical fee arrangements?
d. Is the market rejection the result of P’s indigence?
i. If yes consider: In re Lane
1. Complexity of case, ability of P to investigate the facts, existence of conflicting testimony, the Ps ability to present his claims and the complexity of the legal issues.
b. Accepting The Appointment MR 6.2
i. A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
1. Representing client would result in violation of MR or other law
a. i.e. incompetent or conflict of interest
2. Result in unreasonable financial burden on the lawyer
3. Repugnant – something in belief system that is in such contrast to yours
c. Duty to Reject –
i. Physical/mental illness
ii. COI
iii. Frivolous claim/defense
iv. Strong feeling of bias
v. Incompetence/lacking legal expertise
1. Exception – ALE
a. Association, learn it, ER situation
d. Client Rejects – if your client rejects your appointment then there can be none but what about your legal obligation owed arising from appointment and imposed by the tribunal.
