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Professional Responsibility/Legal Ethics
Wayne State University Law School
Rodwan, Gail

PR Outline – Rodwan Summer 2007
 
Background ABA rules à no legal effect (like restatements); MI developed its own rules in 1988, which are similar to the ABA model; in 2000, many rules changed, but MI has yet to make changes (tho amendments have been proposed and waiting for last 3 yrs); power to regulate attorneys lies with the state supreme courts
 
Defining the Client-Lawyer Relationship
Rules 1.1, 1.6, 1.13, and 1.16 1.14??
Elements of the Client-Lawyer Relationship
Rule 1.1 Competence
                                                              i.      Do not go in blind – research or review
                                                            ii.      If you don’t feel you can adequately represent the client, you need to do extra research or associate with another attorney
                                                          iii.      You cannot neglect a legal matter entrusted to you
                                                          iv.      Factors to consider:
1.      Complexity and specialized nature of the matter
2.      Lawyer’s general experience and training in that field
3.      Preparation and study time lawyer can give to the matter
4.      Is it feasible to consult another lawyer in the field?
                                                            v.      Standard: need not have special training, general practitioner
Rule 1.6 Confidentiality
                                                              i.      Confidential information is different from privileged information
                                                            ii.      A/C PRIVILEGE: NOT based on these rules; instead based on rules of evidence; basically attorney cannot be compelled to disclose what client has told him privately in the context of seeking legal advice
                                                          iii.      1.6(a) confidentiality requirements protect both (1) privileged info and (2) “secrets” – broader than privilege
1.      Secrets ≠ limited to what client directly tells you; can include info about client and/or case from outside sources that is still relevant \ still falls under a/c privilege
                                                          iv.      ABA rule differs from MI rule b/c it doesn’t distinguish like 1.6(a)
                                                            v.      What you cannot do – 1.6(b)
1.      Reveal confidence or secret
2.      Use confidence or secret to disadvantage of client
3.      Use confidence or secret to your own/someone else’s advantage
                                                          vi.      When you MAY reveal – 1.6(c) exceptions to privilege
1.      Consent/waived privileged, either by words or actions… can be explicit or implicit
2.      When permitted/required by rules/law/court order
3.      Crime and fraud exceptions à four parts
a.       If client is using you, the attorney, to commit crime/fraud, then you can reveal, as long as you have a reasonable basis to believe your client is using you
b.      Client doesn’t have to complete the crime, just intends to, and your conversations with the client are in furtherance of the crime/fraud; must have judicial determination to reveal
c.       Under ABA rule, distinguish b/t financial and physical injury; no distinction under MI rule
d.      If client intends to commit a crime and by revealing you are preventing the crime from happening, then you may reveal
e.       Under ABA rule, to reveal it is required the crime prevented will result in probable death or substantial bodily harm; MI doesn’t require this standard, any crime will do
4.      Establish/collect fee
5.      ABA’s sixth exception – if you need to consult with another lawyer on how to comply w/ these rules or solve an ethical problem, then you may reveal in order to get full advice; MI assumes this is allowed
                                                        vii.      Work-product info also falls under confidentiality agreement
Perez v. Kirk & Carrigan ……pg 24 à forming the a/c relationship
                                                              i.      Coca-cola truck crashes into school bus
                                                            ii.      KC implied that they were Perez’s lawyers, as well as his company’s
                                                          iii.      Perez gives them sworn statement in confidence and KC gives statement to prosecutor; Perez found guilty of manslaughter based on that statement
                                                          iv.      Perez sues claiming KC breached fiduciary duty & KC claims not a/c
                                                            v.      Rule: an agreement to form a/c relationship may be implied from the conduct of the parties; can be very informal and even unintentional if you lead people to believe you are working on their behalf and they entrust info/case to you; relationship does not depend upon payment of a fee, but may exist as rendering services gratuitously
                                                          vi.      Here, KC obtained statement from Perez on understanding it’d be confidential
Upjohn Co. v. United States ……pg 32 à corporations as clients
                                                              i.      Pharmaceutical company in Kalamazoo (now defunct)
                                                            ii.      Issue: What is the scope of a/c privilege when client = entity?
                                                          iii.      Govt argues that info is not protected under “control group” test b/c lower level employees are not part of control group, \ Upjohn’s lawyers must reve

    Private thoughts: lawyers’ mental impressions, conclusions, opinions
2.      Ordinary: tangible such as photographs, charts, graphs, things not actually used in lawsuit but you prepared
3.      Phone records, client lists ≠ work product
                                                            ii.      Issue: what if a client fires an attorney and tries to use the attorney’s work product for his case? What if new firm seeks old firm’s materials?
                                                          iii.      Holding: Old firm does not have to turn over work-product materials
                                                          iv.      Majority rule: presumption that client is entitled to materials, lawyer must prove that he doesn’t have the right to it (private thoughts are always protected)
                                                            v.      MI (minority rule): person who is seeking ordinary work product has the burden of proving that he’s entitled to it
                                                          vi.      Courts have generally held that phone records and lists of clients (current and past) are not work product and are discoverable
                                                        vii.      Generally, you can withhold a file from a client in order to try to force payment from that client; exception: if it delays the trial
Control of Quality: Reducing the Likelihood of Professional Failure
Rule 8.1
Bar Admission
Process guided by MCR 15, mandatory process held by standing committee on character and fitness
                                                              i.      Rule 15 section I creates c/f procedure
1.      Step 1: affidavit of personal history in bar packet – credit history, criminal background, residence history, litigation history, employment/education, etc.
2.      Pass or sent for more further investigation (they ask you for more info)
3.      Rule 15 investigation = formal interview under oath
4.      Formal report filed, recommendation sent to standing committee who then makes a decision
5.      If you don’t pass, then you are entitled to a hearing (3 or 5 members); if rejected, can redo process after three years
6.      If you pass, then you go to board of law examiners who make FINAL decision