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Professional Responsibility
Wayne State University Law School
Henning, Peter J.

I.                    INTRODUCTION
A.     MI Supreme court adopted Rules in October 1, 1988 – MI Supreme court changes them as they see fit
B.     In MI, it’s not a violation of the Rules for a lawyer to have sex with a client. It has been considered when revisions come up, but has not been adopted. (Some states have it).
C.    A company sells fill-in-the blank form wills over the internet &helps the customer prepare a online will and reviews the customers completed form for “consistency &completeness” is NOT practicing law without a license-but look at what the company is doing, & how much they are helping the customer.
II.                  COMPETENCE
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.
Comments
(1)     Legal Knowledge and Skill
(a)     Factors to determine whether a lawyer is able to provide competent representation include:
(i)       relative complexity and specialized nature of the matter
(ii)     lawyer’s general experience
(iii)    lawyer’s training and experience in the field in question
(iv)   preparation and study the lawyer is able to give the matter
(v)     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
(b)    Usually, the required proficiency is that of a general practitioner – expertise or special training may or may not be required.
(c)     “A lawyer can provide adequate representation in a wholly novel (new) field through necessary study” or through the association of a lawyer of established competence in the field in question.
(d)    In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical, however, assistance should be limited to that reasonably necessary in the circumstances b/c unplanned action under emergency conditions can jeopardize the client’s interest
(e)     A hired or appointed lawyer may offer representation where the requisite level of competence (that of a general practitioner or expertise if required) can be achieved by reasonable preparation.
(2)     Thoroughness and Preparation
(a)     Competent handling of a particular matter includes
(i)       (1) Analysis of thefactual & legal elements and (2) the use of methods & procedures
(ii)     meeting the standards of competent practitioners.
(iii)    adequate preparation & attention – which is determined in part by what is at stake- major/ complex litigation requires more than matters of lesser consequence.
(3)     Maintaining Competence
(a)     To maintain the requisite knowledge and skill, a lawyer should continue study & education.  
 
 
III.                CONFIDENTIALITY
Rule 1.6: Confidentiality of Information
(a)     “Confidence” refers to info 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 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
(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 info necessary to prevent the crime; and
(5)     confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or lawyer’s employees or associates against an accusation of wrongful conduct.
(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 info allowed by paragraph © through an employee.
Comments:
–          The rule of client lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.
Authorized disclosure
–          Lawyer authorized to make disclosures about client when appropriate in carrying out the representation, except to the extent that the client’s instructions or special circumstances limit that authority
–          Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular info be confined to specified lawyers, or unless the disclosure would breach a screen erected within the firm in accordance with Rules 1.10(b), 1.11(a), or 1.12(c)
Disclosure Adverse to Client
–          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, and the seriousness of that conduct.
–          The lawyer may not counsel or assist a client in conduct that is illegal or fraudulent.
–          If lawyer was innocently involved (didn’t know) in past conduct by client that was criminal or fraudulent, lawyer has the professional right, but not professional duty to rectify the situation. (but only to the extent necessary to accomplish rectification.)
–          If the lawyer learns that a client intends to do criminal conduct, inaction is not a violation of Rule 1.2(c), EXCEPT if the lawyer’s knowledge may prevent commission of the prospective crime likely to result in substantial injury (homicide or serious bodily injury), a lawyer may have an obligation under tort or criminal law to take reasonable preventive measures. The interest in preventing the harm may be more compelling than the interest in preserving confidentiality
–          Exercise of discretion requires consideration of maginitude, proximity, likelihood of the contemplated wrong, nature of lawyer’s relationship w/ client and those who might be injured by client, lawyer’s own involvement in the transaction, and factors that may extenuate the conduct in question. Disclosure should be no greater than the lawyer reasonably believes necessary to the purpose.
Withdrawal
–          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 1.16(a)(1)
–          After withdrawal, lawyer required to refrain from making disclosure of client’s confidences, except as otherwise provided in Rule 1.6.
Dispute Concerning Lawyer’s Conduct
–          When legal claim or disciplinary charge alleges complicity of lawyer in client’ conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence.
–          If lawyer is charged with wrongdoing in which the client’s conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge.
Disclosure Otherwise Required or Authorized
–          Scope of client-lawyer privilege is a questions of law. If lawyer is called as witness to give testimony concerning client, absent waiver by the client, paragraph (b)(1) requires the lawyer to invoke the privilege when it is applicable.
–          Lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client if 1.6 is superseded by another law.
Former Client
– The duty of confidentiality continues after the client-lawyer relationship has terminated.
 
A.      Confidences: Privileged Information protected by the law of evidence under the attorney client privilege
a.       Prevents a lawyer from revealing to anyone something that a client (not someone else) has told the lawyer in
(1)     confidence, (2)in the course of their professional relationship or  (3) relating to legal advice
(a)     Must be truly said in confidence (not in front of anyone else)
(i)     the privilege is lost if any info the client gives the lawyer is in presence of 3rd parties.
(b)    Only the client can waive the attorney client privilege
B.      Secrets:(ethically protected information) Broader then confidences-all info considered privileged will also be a secret but not all secrets are privileged information b/c may not come from the client.
1.       Information that is disclosed to you that would be detrimental to your client, doesn’t have to be revealed to you by client-can come from anywhere-discover on own, by a 3rd person or a letter t
2.       For secrets, even if persons other than the lawyer know of the information, whether through the client or otherwise, the prohibition against voluntary use or disclose of secrets continues
Ø       confidences &secrets are 2 categories as concentric circles inner circle are confidences outer circle, which include the inner circle are secrets.
C.      1.6(c) says a lawyer may reveal 1-5. Not must. Thus it is at the atty’s discretion. They may have a personal/moral obligation to reveal 1-5, but not obligated under the Rules.
D.     The ABA Rule is different: an atty may reveal info to the extent the atty believes it is reasonably necessary to prevent reasonably certain death or substantial bodily harm. (Mich says info on intention of client to commit a crime). MI rule is much broader. Crime includes felony and misdemeanor. When deciding whether to reveal under this rule, consider both the likelihood and the magnitude of the crime.
E.      Waiver – a client may waive the privilege implicitly or explicitly
F.      Purpose of confidentiality rules – Gives an assurance of confidentiality  will encourage the client to trust her lawyer and be forthcoming with information (and sources of information) the lawyer may need to represent her
G.     Exceptions to the Attorney client privilege
a.       It is not a violation of the attorney client privilege if an attorney discusses with another attorney within the firm confidential information received from the client – UNLESS the client specifically says don’t tell anyone
b.      If a client

ause for terminating the representation.
(d)    Upon termination of representation, a lawyer shall take reasonable steps to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law.
Comments:
Mandatory withdrawal
–          A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law.
–          When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. à The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.
Discharge
–          A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services
–          Whether a client can discharge appointed counsel may depend on applicable law.
–          If client is mentally incompetent, client may lack legal capacity to discharge lawyer, and in any event, the discharge may be seriously adverse to the client’s interests.
Optional Withdrawal
–          Lawyer has option to withdraw if it can be accomplished without material adverse effect on the client’s interests
–          Also justified if client persists in course of action lawyer reasonably believes is illegal or fraudulent.
–          Also, if lawyer’s services were misused in the past
–          Client insists on repugnant or imprudent objective
–          A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs, or an agreement limiting the objectives of the representation.
Assisting the Client upon Withdrawal
–          Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law.
 
 
Client as an individual person
1.       When the client is an individual person, an attorney client relationship can be formed by:
a.       Client walks into your office
b.      Client chooses attorney, attorney refuses or accepts
c.       Attorney is appointed – Court will appoint lawyer for an indigent defendant. In formation, the client has not right to reject, but once the relationship has formed and it turns out they can’t work together, the court may appoint someone else, but the judge doesn’t have to do this.
d.      An agreement to form an attorney/client relationship may be implied from the conduct of the parties
i.         Perez v. Kirk & Carrigan – A bus driver sued his employer’s lawyers for disclosing a statement he made to them in confidence, under the impression that they were his lawyers too.
1)       Rule: An attorney’s fiduciary responsibilities may arise even during preliminary consultations regarding the attorney’s possible retention if the attorney enters into discussion of the client’s legal problems with a view toward undertaking representations.
Terminating an attorney/client relationship (1.16(a))
1.       Lawyer can discharge you at any time unless it’s in the midst of a trial. Client has a right to fire you as long as it is not going to impede existing litigation.
2.       Lawyer may withdraw for good cause (1.16(b)) à it’s a broad rule
3.       Ownership of the File: Rule 1.16(c),(d): Upon termination, lawyer must surrender papers, refund advance payment, etc.
i.         Sage Realty Corp. v. Proskauer Rose Goetz & Mendlsohn (online) – There was $175 million financing that Sage Realty had. They contacted D, had a falling out, and Sage got another attorney. Sage wanted D to turn over all files to another attorney. Sage turned over some, but not all documents b/c Sage claimed documents left out were internal work product.
1)       MI court rules 2.302(b)(3)(a) – work product is not discoverable by the other side in the course of litigation. Work product includes mental impressions, conclusions, opinions or legal theories concerning litigation. Things you have written privately, never intended to be part of a pleading are considered work product