Wonch
Prof Resp
Trin2013
MALPRACTICE
• The policy reasons for malpractice: compensate the client & protect the public
• The policy reasons for discipline: protect the public and sometimes compensate the client but never nearly enough or as much; offer warning to prospective clients and examples to other lawyers
• Policy reasons behind confidentiality and A/C/P – effective representation by encouraging client to tell lawyer everything; protection of client’s Fifth Amendment right to be free from self-incrimination
• Policy behind conflicts of interest – loyalty to client, independent professional judgment, and protection of confidential information
• Different Consequences for Misbehavior – Legal Malpractice
• Malpractice – civil action where client sues lawyer
• Theory – Breach of Contract; Tort; Breach of Fiduciary Duty
• Elements:
Tort: Duty (stems from A/C relationship); breach; proximate cause; **actual cause; damages
Contract: Contract; breach; damages
Breach of Fiduciary Duty:
Can also be a rule violation – like breach of confidentiality or conflict of interest but the tort analysis applies. The rule is only evidence of what the reasonably prudent or ordinarily competent lawyer would be required to do in the same or similar circumstance. So if the lawyer breaches confidentiality he has violated the duty of confidentiality that is the standard of care of the reasonably prudent lawyer in the same or similar circumstances.
Standard of Care: Objective not subjective. The skill and knowledge of the ordinarily competent lawyer (or reasonably prudent) in the same or similar circumstances.
Failure to meet standard must be more than an error in judgment or something about which reasonable minds could differ. Attorney judgment rule.
A violation of the Rules of Professional Conduct is not necessary nor does a rule violation in and of itself constitute malpractice – Scope note 20
Biggest obstacle to legal malpractice – case within a case – Actual Cause- must show that party would have prevailed but for the malpractice.
Model Rule 1.0- terminology
(a) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.
(b) “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
(c) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.
(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
(g) “Partner” denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.
(h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
(i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
(j) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.
(k) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
(l) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.
(m) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.
(n) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
MR 1.1 Competence
• Knowledge, skill, thoroughness and preparation reasonably necessary to representation. Experience not necessary if lawyer can become competent with reasonable preparation. (comments 1, 2) Don’t have to nor should we take every case, however.
• Per MR 6.2 — Court appointed case have different standard to decline: must have good cause – rep. would violate rules or law; unreasonable financial burden; so repugnant can’t do a good job. Not having the experience is not necessarily “good cause” under 6.2 unless it’s coupled with something else that is good cause, such as unreasonable financial burden.
MR 1.2 Scope of Representation
• Client: objectives; goals; substantive matters (sue, settle, admit liability, testify as criminal defendant, plead, dismiss, appeal)
• Lawyer: strategy, tactics in consultation with client. (witnesses, theory of case, order of proofs) Lawyer decides in consultation w/ client.
• Lawyer cannot counsel or assist a client to commit a crime or fraud but may (and should) explain the law and tell the client the consequences of planned client behavior
• THIS RULE IS A FLOOR NOT A CEILING
• No matter how sympathetic you are – just say no to clients who want help committing crimes or fraud.
MR 1.3 Diligence
• Reasonable diligence and promptness. What decides? Client’s best interests; lawyer must control work load so can handle all cases diligently and competently; Don’t be obnoxious
• Comment 1
For the purpose of securing or delivering legal advice
• Who can compel? Not cops, not prosecutors, not another lawyer, not parties, only a government proceeding (like a court) where there is subpoena and contempt power.
• So A/C P is only an issue where there is the power of subpoena and contempt b/c that’s the only time privileged information can be subject to compelled disclosure.
• The lawyer must be acting as a lawyer; The privilege belongs to the client, not the lawyer;
• “Privileged persons” are the lawyer, the client and their agents for the representation;
• Communications and observations made as the result of privileged communications are protected as privileged but not physical evidence;
• The communication must be intended to be in confidence – N/A to communications that the client intends be broadcast or passed on. The privilege protects communications both ways
• The underlying facts are not necessarily protected – only the communication between lawyer and client
• The privilege only protects the portion of the communication made for legal advice
• Documents are protected only if they are communications between lawyer and client
A/C Privilege Exceptions
• Client waives or consents
• Lawyer’s services are sought or used in furtherance of crime or fraud (remember client just asking if something is illegal is not asking for help to commit a crime or fraud – you only have that when the client asks you to do that after being told that something is illegal) CRIME FRAUD EXCEPTION
• Joint clients who become adverse
• Testimony relates to document attested to by lawyer
• Breach of duty by client or lawyer (self defense)
• Claimants through the same dead client
Privileged Persons in the Organizational Setting
Assuming all other elements of a privilege claim are present, (communication, confidentiality, legal advice) communications between lawyers and organizational clients are privileged when:
• made by employees (agents) within the scope of their employment;
• at the direction of management;
• for the purpose of securing legal advice or services (ie, evaluating the legality of conduct, determining its consequences, and determining appropriate responses to it).
• Not just the “control group”
• Work Product
• FRCP 26(b)(3) – Civil or Criminal?
• documents and tangible things otherwise discoverable and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative are only discoverable if the party seeking discovery
• has substantial need of the materials for trial preparation, and
• the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
