Professional Responsibility Outline
How much do you know?
1. What is an integrated bar association?
-An association where anyone who wants to be a lawyer in the state has to be a member of the association (pay dues).
2. Does Michigan have an integrated bar association?
-Yes.
3. May an attorney in Michigan be disciplined for behavior in his or her personal life that has nothing to do with the way that attorney practices law?
-Yes, an attorney can be disciplined for personal conduct – drunk driving for example.
4. Is it a violation of the Michigan Rules of Professional Conduct for an attorney to have sex with a client?
-No, however many attorneys think this should be changed.
5. LegalZoom.com sells fill-in-the-blank form wills over the internet. The company will not only help you prepare a will on-line, it will review your completed document for “consistency and completeness.” Is LegalZoom.com practicing law without a license?
-In this particular case no, however, it would depend on what the company is doing in their review of consistency and completeness. For example, if they are checking the spelling and making sure the address on page 1 matches the address on page 3, this is not practicing law. If the company is suggesting language for a tax advantage (substantive), this is practicing law.
6. In the course of formulating your strategy in a case, you discuss with another attorney in your office certain confidential information you have received from your client. Have you violated the attorney-client privilege?
-If a client has not instructed you to keep everything private, it is assumed that colleagues and staff within the office may be able to hear confidential information without breaking the privilege.
7. After you represent a client in a losing cause, the client files a grievance with the Attorney Grievance Commission alleging that you were ineffective. In responding to the grievance, you want to reveal certain confidential information from the client. May you do so without violating the attorney-client privilege? If your answer is “yes”, is it because you are no longer representing the client when the grievance is filed?
-You are allowed to defend yourself. If you must use confidential information to do so, you may; this is one of the big exceptions of the attorney-client privilege under Rule 1.6.
8. Your client tells you of her plan to rob a bank. She cautions you that you are bound by the attorney-client privilege not to reveal her plan to anyone. Is she correct?
-No, under Michigan rules if you can prevent the crime by revealing the information you may do so.
9. Is every Michigan attorney required to perform at least some pro bono services each year?
-No, although it is encouraged and many attorneys and firms do provide pro bono service. And they are thinking of changing rule 6.1.
10. A lawyer’s advertisement in the yellow pages of the local telephone directory includes the following: “I am a bankruptcy. Don’t even think of asking me to represent you in any matter not involving bankruptcy.” Does this advertisement violate any rule of professional conduct?
-No. Many attorneys are specialized in a certain area of law. If you are not competent to represent a client, not only may you tell them no, you are required under Rule 1.1 not to take that client.
Once in practice, are their going to be circumstances under which you are bound by the ABA rules?
No, you are bound by the rules of the state in which you practice.
You have to keep any advance money.settlement $, or client money in a different account (usually a trust) with different records. Always keep client money separate and know who owns what to the penny. If there’s any ambiguity at all as to whose $ it is because you don’t have a fee agreement or it is ambigous, put it in the trust, and draw it out as you earn it. You must take it out after you earn it or it is considered mingling your money with the client money.
MI allows attorneys to take an engangment fee.
Specify in fee agreement how the money will be drawn out
There’s no such thing as a non-refundable fee!!!
Rules of Professional Conduct
American Bar Assoc in 1983 developed the rules of professional conduct. MPRE tests the ABA rules
The ABA rules are only a model, no legal effect anywhere, only a model. After the ABA developed the rules many states used them as a model, including MI.
Power to practice law is in the MI supreme court, in 1988.
Every year the ABA looks at rules and changes them. Since the rules change, Rodwan is going to teach based on MI rules, not ABA rules as tested by the MPRE.
MRPC 1.1 Competence
A lawyer shall provide competent representation to a client. A lawyer shall not:
Handle a legal manner 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;
Handle a legal manner without preparation adequate in the circumstances; or
Neglect a legal matter entrusted to the lawyer.
Comment:
Legal Knowledge and Skill: In determining whether a law
n the interest of the org is different that the invdividul, remember that individual is NOT the client but the organization
Section E of 1.13—lawyer representing an org may represent directors/officers/other consent may be required by double representation
That is common but can cause severe conflict of interest
How is an Attorney-Client Relationship Formed?
Perez v. Kirk and Carrigan:
Facts: A Coca-Cola truck went through a stop sign and hit a school bus tipping it into a water-filled pit. Twenty one students died and more than 60 people were injured. Ruben Perez, the driver of the truck, claimed that his brakes failed. When the counsel for Coca-Cola (Kirk and Carrigan) came to see Perez in the hospital, they told him that they were his lawyers and anything that he revealed to them would be privileged. Subsequently, the attorneys gave his sworn statement to the prosecutor who charged him with manslaughter.
The court found that the attorneys were bound by the attorney-client privilege even though there was no written contract or formal business relationship. Attorney-client relationship can be formed based on impressions people have. Perez was under the impression that K & H were his attorneys since they said they were.
Mr. Perez was relying on the attorneys in a fiduciary manner, even though they were not, in the usual sense, his attorneys. Attorney is a fiduciary: Shows good faith, loyalty, someone entrusts property or information, and reliance on trust.
Duty to a client can arise before there is a relationship, during the relationship, and in some cases after the relationship. Once a client has shared confidences about a legal matter you are that clients attorney.
When you speak with prospective clients you must be very careful, because if a reasonable person could find that you are going to provide legal services to a client, you may be considered that person’s attorney with the obligations that come along with this. This case was obvious, because the attorneys informed Perez that they were his attorneys.
