1) Lawyer as Fiduciary – 3 fiduciary duties
i) Model Rule 1.1 – Competence
(1) Competence goes beyond knowledge of the law. Encompasses skills, preparation, and diligence.
(2) Violation not only ethical but subjects to damages
ii) Model Rule 1.3
b) Loyalty – conflicts of interest
i) Model Rule 1.7 – conflict between current clients in a single matter or unrelated matters.
ii) Model Rule 1.9 – conflict between current clients and former clients
(1) Representation against former clients
iii) Model Rule 1.8(a) – conflict between interests of client and lawyers personal or financial interest.
i) Model Rule 1.6
2) Lawyer as an Officer of the Court Functioning in Adversary System
a) Adversarial System Elements
i) Neutral decisionmaker
ii) Competent advocates zealously presenting positions of each interested party
iii) Rule of procedure
b) Model Rules
i) Model Rule 3.1 – lawyers may not file frivolous claims
ii) Model Rule 3.3 – lawyers may not make false statements of law or fact to tribunals
iii) Model Rule 3.5 – lawyers may not try to influence judges, jurors, or other officials by improper means
iv) Model Rule 3.6 – lawyers may not engage in trial publicity that has a substantial likelihood of materially prejudicing a proceeding.
3) Lawyer as an Individual (Personal beliefs and Interests)
a) Model Rules
i) Model Rule 1.5 – Fees
ii) Model Rule 1.8(a)
iii) Model Rule 5.5 – prohibition on unauthorized practice of law
iv) Model Rule 7.1-7.5 – limitation on advertising and solicitation
“Purposeful deception by an attorney…is intolerable, even when it is undertaken as part of attempting to secure the surrender of a murder suspect.”
Exam will be open book. It will be just like the problems in the book. Office WB175B.
1) Sources of Authority –
a) Model Rules of Professional Conduct – the primary authority. They are not law. They are model rules and are influential though. It has been adopted in more than 40 states.
b) Statutory Law – Legislatures don’t have a lot to say but it governs.
c) Administrative Agencies – Patent and trademark, SEC, IRS, and other offices have added to the model rules in their courts.
d) Rules of Procedure – Rule 11. The goals of Rule 11 are similar to model rules so those cases can have bearing.
e) Court Decisions – these decisions emerge in 4 major areas.
i) Review of disciplinary actions taken by state bar associations. Most model rules are done by attorneys with respect to attorneys.
ii) Malpractice cases –
iii) Disqualification Motions – motions to disqualify attorney’s for conflict of interest. This is usually done strategically.
iv) Sanctions – courts sometimes sanction for behavior. They are often reviewed by the state supreme court. Eg – after duke lacross prosecutor was subject to disciplinary action, there was a motion to hold him in contempt for things that happened during trial. This is different from disbarment.
In Re Pautler – this case is to give you an example of the type of problem and the resources that are relevant. The prosecutor impersonated a public defender to get Neal to surrender. Pautler did not correct his misrepresentation. Confusion ensued when a PD was assigned to the case. Neal ended up firing the PD. Pautler was charged with misrepresentation his capacity. He was sanctioned. This case reviews the sanction. The sanction was upheld. He violated a couple of the model rules.
Why did he not contact the PD? He didn’t trust the PD. He wanted to get Neal to surrender.
By a literal interpretation of the rules there is a violation. Rule 8 prohibits misrepresentation. Rule 4 deals with obligations to non-represented parties. He technically broke these rules. But was policy in his favor? The court suggests that there might be some defense for imminent public harm. But they say the defense doesn’t apply here. But be prepared for situations with what the rules say and what equity calls for under the circumstances.
Here Pautler had a conflict of interest in saying that he was from the PD office. This was a violation of the fiduciary duty of loyalty.
1) Pautler/Smith Comparison – conflict between formal rules and situational complexities.
a) Pautler – see above.
i) Rule applies –
ii) Violated the rule – Paulter violated Rules 4.1 and 8.4. Misrepresenting to Mr. Neal was done intentionally. He knew the rule but thought it was better to get him to surrender. He also said he would do it again. The court called this an act of civil disobedience because he knew the rule and still didn’t follow it.
iii) Life at issue – the life of a human being was at issue.
b) Smith – knew that his client was guilty but let another person go to jail for it.
i) Rule applies – rule of confidentiality
ii) Honored the rule – didn’t say anything about the knowledge of his client.
iii) Life at issue – the life of a human being was at issue.
c) Client Centered Approach – Smith made the hard choice in favor of his client. But he honored the rule even though it may be seen as immoral.
d) Morality Centered Approach – lawyers should defend the morality of what they do. Lawyers would decline more cases and withdraw more cases.
i) Cons –
(1) Too Variable – everyone has their own thoughts on what is moral. So it would be impossible to have any rule.
e) Social Value Approach – take actions that promote justice in the legal merit of the case. This is something of an ad hoc approach but less so than the morality based approach. Sometimes a law is just on its face. There’s nothing wrong with a rule of confidentiality or don’t misrepresent. But sometimes it’s unjust on its application.
i) Civil Disobedience – Smith could have come forward and take his punishment for breaking the rule but still not follow the rule because it was unjust to follow the rule.
ii) Paultler – Pautler followed this approach. He knew the rule but still didn’t follow it. He thought it was just to get Neal off the street.
1) CRIMINAL CASES
i) Justifications for Defending the Guilty
(1) Model Rules
(a) 1.2(d) – A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scop
le – the excess of the advance fee over the fee for services rendered.
1. Nonrefundable special retainers unethical & void – Iowa Supreme Court
i. Interfere with client’s right to discharge an attorney
ii. Limit attorney’s duty to refund promptly all fees not yet earned.
iii. Result in excessive fee because fee is not earned.
(iii)Can charge more after the retainer is used
(c) Flat Fee – doesn’t matter the time spent. You buy the piece work.
(i) Cannot charge additional amounts.
(ii) Can agree to be nonrefundable because there are advantages to both sides
(iii)Flat fee must be reasonable
(d) Expense Deposit – an amount paid to the firm to be applied to future expenses in the client’s case. Must be put into trust account.
(e) Contingent Fees
(i) Not allowed in criminal cases – Model Rule 1.5(d)
(2) Trust Accounts and Client Property – Model Rule 1.15
(a) Duty not to commingle – 1.15(a) – lawyers need to keep their property out of that fund.
(i) Protects from lawyers creditors
(ii) Establish separate escrow or trust account for clients
1. Not necessary to have separate account for every client.
(iii)Lawyer cannot receive interest on trust accounts. Must go to client or IOLTA program.
(iv)Keep tangible property in separate safe deposit box.
(b) Duty to maintain records – strict account is required of the trust fund. Must be kept for at least 5 years.
(c) Duty to notify promptly – notify clients or third parties when lawyer receives money or property in which client has an interest.
(d) Duty to deliver promptly – to clients or third parties any funds where they have an interest.
(e) Duty to render a full accounting – of money or property when requested by client.
(3) Model Rules
(a) Model Rule 1.5(a) – May not charge unreasonable fees – 8 factors
(i) Not exclusive
(ii) Arrangements should be in writing
(b) Model Rule 1.5(d) – Prohibited contingent fees for criminal matters
(c) Model Rule 1.8(d) – No book, etc., deals before representation concluded
(i) After conclusion could agree to represent for media rights growing out of case
(d) Model Rule 1.15 – Safekeeping property – trust accounts. The biggest risk to people in the bar. It’s the easiest way to get in trouble with the bar.
PROBLEM 2.2(b) – it looks like a flat fee. You could improve it by calling it a flat fee. You could also specify what you get for the fee. The risk is that it is a special retainer.
PROBLEM 2.2(c) – 1.8(d) says lawyers cannot make agreements for media rights prior to the conclusion of the representation.