Fall 2011 Outline
Where Do “Ethics” Rules Come From?
A. Why study the ABA Model Rules?
a. Because they are enacted & enforced in every state
B. Consequences of Violating a State Ethics Rules
1. Sanction by state Disciplinary Board
a. This is an administrative agency tribunal with appeals to the courts
b. Courts can sanction lawyers for contempt of court but they can’t say “you have violated this rule and therefore you are sanctioned”
c. Discipline can range from disbarment, suspension of right to practice, public/private censure
2. Civil liability
a. No per se civil liability for violation of an ethics rule
i. MR Preamble § 20 – Scope: “Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.”
ii. “Nevertheless, since the rules do establish standards, a lawyers violation of standard of conduct may be evidence of breach of the applicable standard of conduct.”
b. Two Types of Civil Liability
1. Must show negligent conduct, usually that results in economic loss
ii. Breach of Fiduciary Duty
1. Very open ended
2. If breach, mental distress damages may be recovered
3. Ex: consensual sex with w/ client – this works a lot better as a theory of liability for the client. Atty is not acting as a fiduciary should because he is engaging in conduct that is specifically prohibited
C. What happens when no clear answer from ABA rules?
1. Some state & local bar ass’ns will have a telephone answering service where they will talk you through an issue.
2. Other authorities
a. Ethics opinions
i. ABA ethics opinions – influential but not controlling
ii. State ethics opinions – not as prominent as ABA opinions
b. ALI Restatement
c. Academic articles
d. ABA Manual on Professional Conduct
i. Available through BNA; comes out every 2 weeks
D. The Professionalism Movement
1. Movement has resulted in the adoption of professional rules of conduct & civility codes by states, bar associations, district courts
2. PA Civility Code (Becker e-mailed)
a. Not mandatory → “It is expected that judges and lawyers will make a voluntary and mutual commitment to adhere to these principles. These principles are not intended to supersede or alter existing disciplinary codes or standards of conduct, nor shall they be used as a basis for litigation, lawyer discipline or sanctions.”
b. Why is it adopted in addition to the model rules?
i. Because the model rules don’t go far enough
ii. The whole professionalism movement grows out of the concern that the model rules are just a minimum; they don’t go far enough to require lawyers to observe integrity, dignity, decorum civility. Professionalism movement says there are higher standards than the model rules.
c. Why is civility code not mandatory?
i. Some terms are ambiguous – hard to enforce.
ii. Some terms are too minor to be met w/ discipline
d. Why are the civility codes criticized?
i. See above – too ambiguous & minor for enforcement
ii. Also criticized bc the professionalism movement may reflect desires to impose an authoritarian element on a profession that is traditionally an “old boys club” – it is an attempt to keep out the diversity element
Defining the Client-Lawyer Relationship
A. Lawyer Owes Duties only to CLIENT
1. Always focus on WHO the client is; this is the person or entity L owes duties to
a. Ex: 50 y/o son w/ elderly mom who just nods to what son says. Mom is client
b. Restatement § 14 – Formation of Client-Lawyer Relationship: A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonable should know that the person reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide the services.
2. Whether there is money or an agreement involved is not dispositive
i. No payment doesn’t preclude a relationship
1. Ex: 1-800 services: giving advice may create relationship regardless of lack of payment
ii. MR 1.5(b): The agreement shall preferably be in writing.
1. Agreement doesn’t HAVE to be in writing
iii. Boilerplate disclaimers may not even help – when client is relying on lawyer & lawyer should reasonably know it
3. Types of Clients
a. Informal client: Restatement §14: owe duties (Formation of CL Relationship)
b. Prospective Client
i. Restatement § 15: A Lawyer’s Duties to a Prospective Client
ii. MR 1.18 establishes certain duties to a prospective client
iii. Case law says you owe duty of accuracy for info given to prosp. client
c. Multiple Parties: Have to focus on “who” among multiple ppl is your client:
1. Corp. Officer testifies – do you have to keep it confidential?
2. MR 1.13 No; officer is not the client – the corporation is the client.
ii. Fee payor
1. Just because one person pays doesn’t make them a client.
2. The client is the person who you are representing.
3. Ex: Hired by Insurer A to represent Insured B. B is the client.
ient. Situation arises where lawyer represents one D in complex anti-trust case & another lawyer from a diff firm represents a diff D in the same anti-trust case. Both Ds want to work together on case. Ls hold strategy meetings together for D1 & D2. Here, L owes duty of confidentiality & duty to avoid conflict of interest to D2 bc it is in the context of a common interest
C. What Do Lawyers Owe Clients?
1. Duty of Competence – MR 1.1
a. MR 1.1 – sets forth requirement that l must provide the client w/ competent representation
b. The requirements of competent representation are:
i. Legal knowledge;
iv. Preparation necessary for representation
c. Disciplinary action is only enforced in egregious cases
i. Mistakes are made (ex. SoL is blown) & proceedings under Rule 1.1 often only occur when there is a pattern of incompetence
d. New lawyer/lawyer not familiar w/ field, L may take the case:
i. Comment 2: Through necessary study a new lawyer may provide competent representation.
ii. Comment 4: The requisite level of competence can be achieved by reasonable preparation.
1. Q: Can L then bill the client for the extra time involved (e.g. more research/preparation to get up to speed)?
(i) Yes, as long as fees are reasonable. Reasonable here means something that would be appropriate under the circumstances. (MR 1.5(a) requires a reasonable fee must be charged)
(ii) To be safe, lawyer should explain to the client that he doesn’t really practice that area of law so he may have to bill him for a little extra research time (Fordham).
(iii) Will be a sliding scale depending on how sophisticated client is when he agrees to the extra billing.
2. Duty of Confidentiality – MR 1.6
a. There are two important principles related to this:
i. Ethical duty of confidentiality under MR 1.6
ii. Evidence rule of attorney-client privilege.
b. MR 1.6(a) – Confidential info relating to representation may NOT be disclosed unless:
i. Informed consent
1. Defined in MR 1.0 – agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about risks.