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Professional Responsibility
Wayne State University Law School
Chapin, Boyd E.

 
Summer ‘14 Professional Responsibility – Professor Chapin
Defining the Attorney Client Relationship
Is there a Client?
An attorney-client relationship is formed when:
(a)     A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person, and
(b)     The lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the persons reasonably relies on the lawyers to provide the services.
–          Lawyers must clearly tell the client what issue he is working on.
-Payment does not need to be made in order to establish attorney-client relationship.
-Relationships are formed by agreement, usually implied agreement.
Lawyer’s Duties to the Client:
–          Confidentiality
–          Avoiding conflict of interest
–          Diligence and competence
–          Avoid commingling
–          Avoid self-dealing
–          Effective assistance
–          Avoid fee splitting
–          Withdrawal from representation
Rule 1:0 Scope and Applicability
These are the Michigan Rules of Professional Conduct. The form of citation for this rule is MRPC 1.0.
Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The rules do not, however, give rise to a cause of action for enforcement of a rule or for damages caused by failure to comply with an obligation or prohibition imposed by a rule. In a civil or criminal action, the admissibility of the Rules of Professional Conduct is governed by the Michigan Rules of Evidence and other provisions of law.
A violation of a rule does not give rise to a cause of action, nor does it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.
The text of each rule is authoritative. The comment that accompanies each rule does not expand or limit the scope of the obligations, prohibitions, and counsel found in the text of the rule.
Comment
Lawyer’s Responsibilities
A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
o    As a representative of clients, a lawyer performs various functions.
o    As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications.
o    As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.
o    As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.
o    As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client.
o    A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others.
   Regulation
The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.
   Scope
Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6 that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.
   Terminology
“Fraud” or “fraudulent” denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.
“Reasonable” or “reasonably,” when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.
“Reasonable belief” or “reasonably believes,” when used in reference to a lawyer, denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
Competence and Diligence
Rule: 1.1 Competence
A lawyer shall provide competent representation to a client. A lawyer shall not:
(a)     Handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it;
(b)     Handle a legal matter without preparation adequate in the circumstances; or
(c)     Neglect a legal matter entrusted to the lawyer.
Comment:
Legal Knowledge and Skill:
·         In determining whether a lawyer is able to provide competent representation in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.
·         A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.
·         A lawyer may offer representation where the requisite level of competence can be achieved by reasonable preparation.
Thoroughness and Preparation
·         Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.
Maintaining Competence
·         Florida has mandatory legal education after law school; whereas, MI doesn’t.
·         MI-To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.
Difficult Client-If the client refuses your services and the client is competent, then they are automatically competent to plead guilty and waive all rights.
a.       Unabomber: His criminal defense attorneys figured out a way from saving him from the death penalty, but D refused to go through with the defense.
b.       If your client doesn’t want your assistance, then you must inform him of his options and get everything in writing. (Get something in writing and have the client sign it–make sure they understand their options.)
Godinez v. Moran: The competency standard for pleading guilty or waiving the right to counsel is the same as the standard for standing trial: whether the D has sufficient present ability to consult w/ his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him.
Incompetence-It is often the basis for malpractice liability, assuming the client suffers damages, or for an ineffective assistance of counsel claim under the 6th amendment.
-Lawyers who hold themselves out as specialist will often be subject to a higher standard of care.
If the lawyer does not do criminal law, then the lawyer cannot handle the case due to Rule 1.1-Competence.
a.       If the lawyer were to direct the client to another lawyer, then he may be liable to a referral
1.       The lawyer must follow through and ensure the representation is adequate
§  Cannot simply ignore this case after she has been referred.
Rule: 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Comment: A lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued.
a.       Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so.
o    For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter.
Duty of Competence
1.       Legal Knowledge and Skill
                                       i.      A lawyer must be knowledgeable regarding the subject matter of the representation. However, under the ABA rules, a lawyer need not be an expert in all matters to undertake the representation.
                                      ii.      A lawyer w/o prior experience in a field of practice may still take a case as long as:
1.       Educated w/o Undue Delay or Expense to the Client
2.       Associate with Competent Counsel
                                    iii.      In an emergency, a lawyer may give advice or assistance to a client in need, even if he lacks the skill or knowledge ordinarily required, and referral to or consultation with another lawyer is impractical. 
2.       Preparation & Thoroughness
                                       i.      Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.
                                      ii.      Required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence.   
Confidentiality
Rule: 1.6 Confidentiality of Information
(a)        “Confidence” refers to information protected by the client-lawyer privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(b)        Except when permitted under paragraph (c), a lawyer shall not knowingly:
1.       Reveal a confidence or secret of a client;
2.       Use a confidence or secret of a client to the disadvantage of the client; or
3.       Use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
(c)     A lawyer may reveal:
1.       Confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
                                      i.      Simply b/c the client waives one item does not necessarily mean they waive full disclosure.
2.       Confidences or secrets when permitted or required by these rules, or when required by law or by court order;
3.       Confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
4.       The intention of a client to commit a crime and the information necessary to prevent the crime; and
5.       Confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
§  A lawyer may reveal info. to the extent the lawyer reasonably believes necessary to establish a defense to a criminal or civil claim against the lawyer based upon conduct in which the client was involved.
§  A lawyer must have good reason to believe that revelation of the info. is necessary to his or her self-protection.
(d)     A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee.
Comment
                 Two Bodies of Law: principle of confidentiality is given effect in two related bodies of law, the client-lawyer privilege (which includes the work-product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics.
a.       The client-lawyer privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.
b.      The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies to confidences and secrets as defined in the rule. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
                 Disclosure Adverse to Client:
a.       When the client is or will be engaged in criminal conduct or the integrity of the lawyer's own conduct is involved, the principle of confidentiality may appropriately yield, depending on the lawyer's knowledge about and relationship to the conduct in question.
b.      HIV client-Is sex without telling her about the HIV+ a crime? If so (it is in MI), you can reveal, if you choose to do so.
                 Withdrawal:
a.       If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1).
b.      After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except the client plans to commit a criminal action.
                 Dispute Concerning Lawyer’s Conduct
a.       In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
                 Former Client
a.       The duty of confidentiality conti

iolation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization, and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others:
(1)     Asking reconsideration of the matter;
(2)     Advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and
(3)     Referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.
(c)     When the organization's highest authority insists upon action, or refuses to take action, that is clearly a violation of a legal obligation to the organization or a violation of law which reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, the lawyer may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization. Such action may include revealing information otherwise protected by Rule 1.6 only if the lawyer reasonably believes that
(1)     The highest authority in the organization has acted to further the personal or financial interests of members of that authority which are in conflict with the interests of the organization; and
(2)     Revealing the information is necessary in the best interest of the organization.
                                                               i.      For the organization that you represent, you must serve the best interests for the whole organization and not simply an individual unless it is a single person organization.
(d)     In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when the lawyer believes that such explanation is necessary to avoid misunderstandings on their part.
(e)     A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.
Comment
The Entity as the Client
In transactions between an organization and its lawyer, however, the organization can speak and decide only through agents, such as its officers or employees. In effect, the client-lawyer relationship is maintained through an intermediary between the client and the lawyer. This fact requires the lawyer under certain conditions to be concerned whether the intermediary legitimately represents the client.
When officers or employees of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful.
When the lawyer knows that the organization may be substantially injured by action of an officer or employee that is in violation of law. In such a circumstance, it may be reasonably necessary for the lawyer to ask the officer, employee, or other agent to reconsider the matter. If that fails, or if the matter is of sufficient seriousness and importance to the organization, it may be reasonably necessary for the lawyer to take steps to have the matter reviewed by a higher authority in the organization.
Comment:
The Entity as the Client
·         The client-lawyer relationship is maintained through an intermediary between the client and the lawyer. This fact requires the lawyer under certain conditions to be concerned whether the intermediary legitimately represents the client.
·         When officers or employees of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful.
o    In an extreme case, it may be reasonably necessary for the lawyer to refer the matter to the organization's highest authority.
·         The lawyer simply represents the organization as the whole and not the intermediary individual speaking for the organization; thus the client-lawyer privilege will not protect the individual's communications to the lawyer.
Determining the Client
·         First, you must determine what the issue is
·         Second, who is in charge of the area of this issue–engineering, human resources
o    Must ask the person who hires you who you actually represent.
Government as the Client
·         Must ask who you are representing. The president individually?
Ex: GM case-What did the attorney do wrong?–He didn’t report to the general counsel nor take responsibilities for his actions. He ignored evidence and did not fulfill his duties. He got lost in the organizational charts–GM did not have proper channels of communication.
 
***Must figure out the group of people you are representing, the scope of your responsibility, and how much you are going
      to pay the attorney—this should all be in writing.