Rule 1.1 – Competence
The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
(1) Handle a legal matter which you know or should know you are not competent to handle.
(2) Handle a legal matter without adequate preparation in the circumstances.
(3) Neglect a legal matter.
When does your duty as an attorney arise?
Perez – After Perez’s (∏) truck accident claimed the lives of 21 children, lawyers Kirk & Carrigan (∆) disseminated to the DA’s office the confidential statements he made to them, resulting in Perez’s indictment. A lawyer may breach his fiduciary duty to his client either by wrongfully disclosing a privileged statement or by disclosing an unprivileged statement after wrongfully representing that it would be kept confidential.
Your duty as an attorney to the client can arise before the relationship, during that relationship with the client, and after that relationship. If a reasonable person would think that you are going to provide legal services to that person, then in fact you may be his attorney and you may have obligations you never thought you had.
Togstad – A lawyer was held to have a professional relationship with a client for purposes of malpractice liability although he declined to accept her case.
Attorney-Client Privilege – A doctrine precluding the admission into evidence of confidential communications between an attorney and his client made in the course of obtaining professional assistance.
How far does the attorney client privilege extend with an organization or entity?
Control Group Test – Was the communication with a person in the control group of the entity?
Subject Matter Test –The most protective test, which focuses not on the identity of the person with whom the lawyer communicates, but on the subject of the communication. Was the information imparted to the lawyer to enable her to give the entity legal advice?
Upjohn – The IRS (∏), in a tax investigation of Upjohn Co. (∆), sought disclosure of communications between middle and lower level employees and Upjohn’s attorneys. The attorney-client privilege between a corporation and its counsel extends to communications between counsel and noncontrol-level employees.
Does the Attorney-client privilege extend to government?
Unless applicable law otherwise provides, the attorney-client privilege extends to a communication of a governmental organization.
Exception – A government employee can’t shield a federal official from having to give information to the official by claiming privilege. EX: Clinton’s staff member – The strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege applicable in proceedings inquiring into the actions of public officials. The actions of the White House personnel, whatever their capacity, cannot expose the White House as an entity to criminal liability.
EX: Communications between Clinton and attorney – When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence.
What are the exceptions to the privilege or ethical duty?
These are discretionary – you may reveal.
1. Self Defense – An attorney may reveal confidential information if he reasonably believes revelation of the information is necessary to defend himself against an accusation of wrongful conduct. A lawyer’s right of self defense applies whether charges against that lawyer are made by the client or third parties.
The self defense exception does not require the lawyer to await the commencement of an action or proceeding that charges complicity in client wrongdoing, so that the defense may be established by responding directly to a third party who has made such an assertion.
2. Collection of Fees – Can reveal when sue to collect fees.
3. Waiver – Waiver may be explicit or implicit. Waiver will be inferred when the client puts the confidential communication in issue in a litigation. Only the client can waive it – the attorney can’
A lawyer may limit the objective of the representation if the client consents after consultation.
EX: With your client’s agreement, you may limit the objectives of the trial. Try to have the jury come in with the lesser offense by admitting you are guilty of something.
Concept of Agency
Acting for the client means that the lawyer’s conduct will be attributable to the client, even if the lawyer errs, if the lawyer is careless, or worse. In litigation, courts say that a litigant chooses counsel at his peril.
Taylor – Taylor (∆) received a criminal conviction after the court refused to allow him to call a critical witness because his defense lawyer had failed to provide the prosecutor for the State of Illinois (∏) with a defense witness list. The client must accept the consequences of the lawyer’s decision to forgo cross-examination, to not put certain witnesses on the stand, or to not disclose the identity of certain witnesses in advance of trial.
Cotto – Cotto (∏), a young child, asserted a claim against the USDA (∆) for an injury when his hand got caught in a conveyor belt. The acts and omissions of counsel will be visited upon the client in a civil case. Even though acting for the client means that the lawyer’s conduct will be attributable to the client, the lawyer is still subject to discipline for any malpractice or neglect of his client’s case. The client can sue the attorney, but they are not going to let him reinstate the case in a civil case. In a criminal case, the court will render it ineffective assistance of counsel.
If the attorney acts improperly or foolishly, the client may still be bound, but he may be able to sue the lawyer for damages.