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Professional Responsibility
Wayne State University Law School
Armitage, Mark

Professional Responsibility
Professor Amritage
Fall 2010

Rule 1.0 Scope of Rules:
– (e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
– MICH RPC 6.5 Professional Conduct:
o (a) A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment
– Corporate Privilege:
o Subject Matter Test:
§ Any communication to the corporate lawyer by a person associated with the corporation is privileged if:
· 1) The communication is made for the purpose of assisting the lawyer in rendering services/advice to corporate personnel; and,
· 2) The communication relates to the person’s employment.
o Control Group Test:
§ Extended the privilege only to communications made to a corporate lawyer for the purposes of rendering services/advice to the corporation where:
· the person making the communication was within the control group that had managerial responsibility for taking action in the matter relating to the particular legal problem.
– Upjohn v. US:
o Reaffirmed application of A/C privilege to corporations
o Rejected “control group” test
– Work Product Doctrine:
• Protects materials prepared in anticipation of litigation or for trial – your work product.
• The relation of the information to litigation is a key, required element.
• Your work product is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.
• Any writing that reflects your impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.
• Allows lawyers to work free from unnecessary intrusion by opposing parties or their lawyers.
• Exception: Showing of special need by the party seeking disclosure.
• The only person that can raise work product doctrine as a defense to disclosure of litigation materials is the lawyer.
• Hickman v. Taylor:
• Lawyer wanted opposing counsel’s notes of interview with 3P witness (witness not Client, so not covered by A/C privilege).
• HELD: Unless trial preparation materials are protected, lawyers can not effectively prepare their client’s case.
– In re Mustafa:
· In order to gain admission to the Bar, an applicant must demonstrate ‘by clear and convincing evidence, that the applicant possesse[s] good moral character and general fitness to practice law.
· There is no doubt that an attorney who mismanages the funds of a client will ordinarily face disbarment.”
· “Similarly, an attorney convicted of a crime involving moral turpitude faces automatic disbarment.”
– Attorney Client Privilege
o A/C privilege = set of evidence rules that protect lawyers and clients from being compelled to testify about certain communications.
o A lawyer must take care to protect privileged information all the time, not just when someone is seeking to compel disclosure of privileged information, because voluntary disclosure of privileged information may result in loss of privilege.
o Range of info protected by 1.6 is broader than that protected by the privilege.
§ Duty of confidentiality applies to information “relating to the representation of a client” regardless of whether the information was obtained from the client or from another person.
§ Privilege, on the other hand, protects information communicated by a client to lawyer in private for the purpose of seeking legal advice.
o The purpose of the attorney-client privilege rules is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” (See Upjohn)
o In order for the privilege to attach, communications from the client must occur in a confidential setting. Non-clients cannot be present unless an agent for the client.
§ If a third party who is not necessary to the communication is present during the communication, this may result in loss of privilege.
· Employees of the lawyer may be present.
· It is okay to have someone present who is helping with representation–like a translator.
· Parent/Guardian, expert witnesses, trial consultants, PR Agent/Specialist
· A casual friend in the room is problematic.
o Establishing the crime/fraud exception:
§ You have to show that the client was either engaged in or planning a crime or fraud when the advice was sought, or that the client committed a crime or a fraud after receiving the lawyer’s advice.
§ When privilege is invoked, the court does in camera review of the evidence to see if privilege applies.
· For example, Purcell case (in text): The client told his lawyer that he would burn down a building. The lawyer told the police, who arrested the client. The court found that the lawyer’s testimony should not be compelled under the crime-fraud exception–the client was found to have been seeking legal advice, but not seeking advice that would help him to commit the crime or the fraud.
– Togstad Case: Formation of A/C privilege/ L liability (1.1)
o Facts: P had an aneurysm and Dr. took a big risk of paralysis, which happens through negligence of resident physician. 14 months after the hospital, P’s wife meets with lawyer and according to a witness, the lawyer said ““he did not think we had a legal case, however, he was going to discuss this with his partner.” No money was discussed, neither was a call sent/received. 1 year later, W consults L2, saying she waited b/c L told her P&W didn’t have a case – i.e., b/c “of her reliance on [L’s] ‘legal advice’ that they ‘did not have a case.’” The SOL had passed sue sued Lawyer 1 for malpractice.
o Holding: Tell your P of the SOL. An A/C relationship is created whenever an individual seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice.
o Jury could properly find Witness sought and received legal advice. Injury reasonably foreseeable if advice negligently given. Lawyer did not (a) urge Witness to seek advice of another Lawyer or (b) inform her he lacked expertise. Lawyer failed to perform minimal research an ordinarily prudent Lawyer would do before rendering legal advice here.
§ Legal Malpractice Elements:
· A/C relationship


Rule 1.3 Diligence:
– A lawyer shall act with reasonable diligence and promptness in representing a client.
– GA v. Musilli:
o Facts: Lawyer substituted in for a case and attended two pretrial conferences and partner attended a mediation. The Lawyer failed to appear for the trail and was a default Judgment. Lawyer couldn’t find the trial noticed and never checked with court. Rule 1.1 & 1.3 violated.
o Holding: Respondent wasn’t intentionally neglecting client. Panel found he had no actual knowledge of trial date. However, panel and Board found that L knew a trial date had been set (he admitted this) and had a duty to search for notice and if he didn’t find it, to inquire of the court, opposing counsel, or someone – look up on court docket sheet. Judge did not set aside default judgment (L moved). Defendant hit with $72K Default J, which was negotiated down to $56K which D paid P in settlement.

Rule 1.4 Communication
– (a) A lawyer shall:
o (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent.
o (2) consult with client about the means by which the clients’ objectives are to be accomplished;
o (3) Keep the client reasonably informed about the status of the matter;
o (4) comply with reasonable requests for info
– (b) a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Rule 1.5 Fees:
– (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
o (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
o (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
o (3) the fee customarily charged in the locality for similar legal services;
o (4) the amount involved and the results obtained;
o (5) the time limitations imposed by the client or by the circumstances;
o (6) the nature and length of the professional relationship with the client;
o (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
o (8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge