Legal Profession
Chapter 1: The Regulation of Lawyers
Class 1
1) Rule: 8.1, 8.4
2) Article 8: Maintaining the Integrity of the Profession
a) 8.1 Bar Admission and Disciplinary Matters – 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:
i) 8.1(a) – knowingly make a false statement of material fact: or
ii) 8.1(b) – fail to disclose a fact necessary to correct an error, or knowingly fail to respond to a lawful demand for info from admissions or disciplinary authorities. This rule does not apply to info protected by Rule 1.6
b) 8.4 Misconduct – It is professional misconduct for a lawyer to:
i) 8.4(a) – violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
ii) 8.4(b) – Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
iii) 8.4(c) – Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
iv) 8.4(d) – Engage in conduct that is prejudicial to the administration of justice
v) 8.4 (e) – state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the RPC or other law; or
vi) 8.4(f) – knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law
vii) Comment:
(1) 8.4(b) – a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice (moral turpitude is not a problem)
(2) 8.4(d) – a trial judge’s finding that preremptory challenges were exercised on a discriminatory basis alone does not establish a violation of this rule
(3) A layer may reguse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. Rule 1.2(d) concerning good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law.
(4) 8.4(e) – lawyers holding public office should be honest. Ha. Look at those bloodsucking embezzling child molesting wife beating drug snorting congressmen and senators.
Creating the Attorney – Client Relationship (Strictly Platonic Unless She’s Hot)
Class 2
1) Rules: 1.0, 1.1, 1.2, 1.3, 1.4, 1.6, 1.18
2) Creating the Lawyer-Client Relationship
3) A lawyer is permitted to accept legal work that requires knowledge of an area of law in which he has no experience (David Boies & his 2-year study for a case on Constitutional Law). Rule 1.1 requires lawyers to provide competent representation, but the commentary to the rule says you can take it on if you have the time and resources to get up to speed.
4) You may bill a client for the hours you spend learning the subject and discipline (like Boies) but it must be reasonable, and the research competent.
5) If a court assigns you to represent some freeloader who can’t pay, then you must accept it according to Rule 6.2 except for good cause. You can’t discriminate based on religions, sex, age, disability, or on a protected category
6) An agreement to pay a fee or an agreement in writing is not a necessary aspect of a lawyer-client relationship. If a person seeks legal advice or legal services from a lawyer and the lawyer gives legal advice or provides legal services, the person may thereby become a client. So be paranoid and a douchebag at cocktail parties.
7) CLASS: for prospective client (see Rule 1.18)
a) Put into writing an “engagement” letter or a “non-engagement” letter and send it.
b) Clarify who exactly you represent
c) Billing stuff
d) Say you need to keep in touch w/us to prevent statute of limitations in case your client disappears and then comes back and blames you because the statute ran out when the douche was not around.
e) Togstad (Minn. 1980) 269
i) Rule: Be EXPLICIT about telling any prospective dick that walks through your door whether or not you will or will not be her lawyer and have it in writing so the gold-digging pricks don’t sue.
ii) Reasoning: Mrs.Togstad sought and received legal advice from Miller under circumstances which made it reasonably foreseeable to Miller that Mrs. Togstad would be injured if the advice were negligently given. Thus, under tort or contract analysis, there is sufficient evidence n the record to support the existence of an attorney-client relationship.
iii) “Yes my name is Studhauser and my Pin is 6969. I’d like to return this chick magnet.”
iv) Notes:
v) In the case of purely economic harms (such as the harm caused by providing faulty information), the law of most states requires a relationship between the parties closer than that of strangers before it imposes liability for conduct that is merrely negligent and not deliberate or willful.
vi) Mr. Togstad was paralyzed, so even though Miller never met Mr. Togstad, the consultation with his wife, who acted on his behalf, established a client-attorney relationship with him.
vii) Someone can become your client (and sue you for malpractice) even though you don’t even discuss the terms of the representation, much less sign a written agreement. So get an “engagement” or “non-engagement” letter. You don’t want to be married to a douchebag who will take you for all you have! In court, of course.
8) Terminating the Law-Client Relationship
a) According to the Restatement, certain types of documents may be withheld from client/former client:
i) Lawyers may refuse to disclose to client certain law-firm documents intended for internal review (memos, whether lawyers must withdraw because of client conduct, firm malpractice possibility, etc). The lawyer must be able to think in peace, though his duty to inform the client can require the lawyer to disclose matters discussed in a document even when the document itself need not be disclosed (this is a stupid fucking statement, the whole point is to not disclose, so what they say will be edited).
b) If the deadbeat client does not pay, statutes and court rules permit a lawyer to withhold even the client’s original client documents, such as birth certificates, marriage records, passports, when the fee is unpaid or disputed.
c) 1.16(a)(3) – A lawyer must withdraw when representation will require the lawyer to violate the law, including the state’s RPC. This must happen even during litigation and even if the withdrawal would make your client look suspicious. No violation of the law. Except by Congress and the Senate. The President can snort coke and do crack every so often, too.
d) 1.16(b)(3) – If the client has already used the lawyer’s services to commit a crime or fraud but continued representation will not result in a new or continuing crime or fraud, the lawyer has the choice of withdrawing.
e) 1.16(b)(2) – If the client persists in a course of action that the lawyers reasonably believes is a crime or fraud, and the lawyer’s services are being used to assist this action, the lawyer must withdraw, even if the actions have not yet been adjudicated to be criminal or fraudulent.
f) 1.16(b)(4) – if the client insists on action the lawyer finds, “repugnant” the lawyer may withdraw.
g) 1.16(b)(1) – a lawyers may withdr
the harm will occur.
(3) 1.6(b)(2) – to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(a) Commentary – the client can prevent this disclosure by refraining from wrongful conduct. The rules does not require revelation, but other rules bar the attorney from counseling or assisting the conduct in question, and may require attorney to withdraw. This applies if the clients PLANS TO COMMIT OR IS COMMITTING the crime or fraud, thus includes present and future.
(4) 1.6(b)(3) – to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’]s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services
(a) Commentary – addresses the situation in which the attorney does not learn of the client’s crime or fraud until after the act occurred, and in which the loss can be prevented, rectified, or mitigated. This does not apply when a person who has committed a crime or fraud thereafter employs the attorney for representation concerning that offense. This applies to a PAST crime or fraud. Thus together with the above rule, the lawyer may reveal client criminal or fraudulent conduct whether it is past, ongoing, or future if there is a reasonable certainty that…
(5) 1.6(b)(4) – to secure legal advice about the lawyer’s compliance with these rules
(a) Commentary – allows attorney to reveal otherwise confidential information to secure legal advice relating to compliance with the rules. Compliance with the rules is even more important than protecting client confidences.
(6) 1.6(b)(5) – to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client, to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the lawyer was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(a) Commentary – attorney may reveal confidences to the extent needed to collect a fee. A client or 3rd party may allege the attorney has committed some wrongful act. In that case, a lawyer may reveal confidences to the extent necessary to respond to such an allegation. The lawyer need not wait for a complaint to be filed before the right to defend applies. A lawyer may reveal confidences even if the “allegation” is made by an injured 3rd party rather than by a client, and even if the lawyer is not the primary target of the allegation.
(7) To comply with other law or a court order
(a) A court order or other law may require a lawyer to reveal a confidence. That law trumps the ethics rules and the lawyer may reveal the information.
(b) Apart from this, lawyers should protect as confidential most information about past criminal activity by clients.
