Professional Responsibility Lee Spring 2016
Basic Provisions
Rule 1.1: Competence
“A lawyer shall provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”
Rule 1.2: Decision Making
1.2(a) Client decides the objectives of the representation and lawyer decides the means
Objectives of representation
Whether to settle
Blanton: attorney did not have the apparent authority to enter into settlement agreement for client
What plea to enter
Holland: client wants the death penalty so Attorney does not argue against it, was this an objective of the client?
Court tells Attorney he must argue against death penalty
Whether to waive jury trial
Things that could be outcome determinative
1.2(c) Lawyer may limit the scope of representation if limit is reasonable under the circumstances and client gives informed consent
1.2(d) Lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is fraudulent or criminal but a lawyer may discuss the consequences of the client’s behavior.
Rule 1.3: Diligence
“A lawyer shall act with reasonable diligence and promptness in representing a client”
Rule 1.4: Communication
1.4(a) Lawyer shall promptly inform client about the means by which the client’s objectives will be accomplished, the status of the matter, promptly respond to requests for information and tell the client when the client wants lawyer to do something in violation of the professional rules
1.4(b) Lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation
NOTE: this section often comes into play in correlation with Rule 1.2(d) and especially in conflict cases
Togstad: Attorney tells woman he does not think her med. mal case is one that his firm would want to take but that he will call her if he decides they will take her case
Take away: “never let inaction/silence be your form of communication”
Must communicate to the client in a way in which they will understand
Confidentiality
Process
Is there a legal duty to disclose?
If yes, use A-C privilege.
Are all elements met?
If yes, determine if the privilege is absolute or limited
If limited, Belge tells us to do balancing test
If absolute, the privilege applies
If no, the privilege, does not apply
If no, use Model Rules of Professional conduct
Rule 1.6 — Current clients
Rule 1.18 — Prospective clients: when person discusses with attorney about becoming a client; information gained from prospective client can only be disclose so far as it could be disclosed if it came from a former client, sends us to Rule 1.9
Rule 1.9 — Former clients: information from former clients can still be protected information, will still have to analyze under 1.6
Rule 1.6: Confidentiality
Elements
A Lawyer
Shall not reveal
Information
Relating to the representation
Of a client
Exceptions
Informed consent (express)
Implied consent
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary (Some JX change “may” to “must”)
1.6(b)(1) To prevent reasonably certain death or substantial bodily injury
NOTE: Hansen makes it a duty for attorneys to disclose client’s threats against judges
Reasonably believe they will get the information elsewhere, then exception doesn’t apply
Also, if the result is not substantial bodily injury or death, then the lawyer does not have to disclose
1.6(b)(2) To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in the furtherance of which the client has used or is using the lawyer’s services.
Disclose to stop the problem
Preventing the crime from occuring
1.6(b)(3) To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer
d?
Surroundings
Institutional/Corporate Clients
2 tests
Control Group Test
Employee that is in a position to control or even take a substantial part in a decision about any action
Federal: Subject matter test
Talking with client, if communication is within employees corporate duties
If you can fit someone in as a client under the control group, then they will also fit under the subject matter test. However, the inverse is not true (dependent on who you are talking to).
Communicates
“Does not alter, destroy, or possess”
Knowingly
Actual knowledge
Can infer that person had knowledge from surrounding circumstances
Take possession
Touching it
Exclusive access to something
Physical evidence or fruits or instrumentalities of a crime
Key, map, combination to a lock
“Mental” evidence
Verbal information
Belge: Attorney observed body after client told him where it was but there was no possession to cover
A-C privilege covered
Ryder: Attorney physically took possession of the evidence
A-C privilege not covered
Confidentially (not in front of a lot of other people)
Think closing the door
To Counsel
For Counsel (for legal advice)
Must be related to representation and must be for something that a lawyer can do
Limited under 1.2(d)
Hansen: it is not “for Counsel” if it relates to a criminal or fraudulent act (Under 1.2(d)) attorney can advise of the consequences of such acts)
Ryder: Attorney claimed that he did not know the goods were stolen
Court says “knowledge” can be inferred from “constructive knowledge”
If enough info has confronted Attorney he can be said to have known through construction
