ETHICAL LAWYERING OUTLINE



ETHICAL LAWYERING OUTLINE

I. REGULATION OF THE LEGAL PROFESSION

A. Sources of Regulation

1. The State: subject to regulation by states in exercise of police power

a. Courts: ultimate power rests with the highest court in state

i. appoints a Disciplinary board

← empowered to perform appellate adjudicatory functions

← AND make recommendation to high court about disciplinary rules

o BUT: CA allows greater legislative involvement than do other states

b. Ethical Rules: professional ethics rules that govern conduct of lawyers

i. Cannons of Ethics adopted in 1908

ii. ABA Model Rule: no legal effect until adopted by state

← CA remains outside the fold

o mandatory authority after adopted

← ABA ethic committee’s interpretations

o very persuasive

c. Law Governing Lawyers: restatement

← only moderately persuasive

d. Other Law

i. preamble to MR: lawyers behavior should be shaped by

← substantive and procedural law outside the rules,

← personal conscience,

← approbation of professional peers also defines lawyers behavior

ii. Scope to MR: lawyers can be disciplined for conduct that has nothing to do with practicing law

o CA: disbarment for attys convicted of certain felonies involving moral turpitude

← even if L acquitted in criminal case involving non-L conduct, may still be disciplined

2. Federal System

a. Inherent power to decide who will be admitted to practice before them

b. power to discipline those lawyers

B. Professionalism

1. Definition: conduct, decorum & commitment to rules & obligation to uphold the law

2. Difference b/w ethical and professional

a. civility component

i. not unethical, not illegal, but highly unprofessional

← ex: shaking hands

b. Bigger picture idea: being an effective and ethical lawyer

II. ADMISSION TO THE PRACTICE OF LAW

A. Qualifications for CA Applicants for First Time [B&P 6060]

1. must be 18

2. good moral character

3. two years of college or equivalent intellectual ability

4. register w/ the bar w/ in 90 days

5. graduate from an accredited law school OR apprentice w/ an attorney or judge for 5

6. pass the bar exam

B. Out of State Lawyers

1. 18

2. good moral character

3. 4 years or more take the attorney bar exam

C. The Application: must respond truthfully and completely to inquires

1. Model Rule:

a. Applicant OR L in connection w/ admission application must not knowingly make a false statement of material fact [MR 8.1(a)]

b. Applicant or L must not fail to correct known misapprehension [MR 8.1(b)]

i. both applicant & L have affirmative duty to disclose information

← if you know you have to tell

c. L cannot knowingly fail to respond to demand for info from admission authority

2. CA RULE: 1-200B

a. Applicant Duty: not to make false representation

b. Others: shall not further

i. only applicant has affirmative duty disclose information

c. L does not have to respond to recommendation

i. can remain silent b/c it is not an affirmative duty

← L’s obligation is higher in MR states

D. Moral Character

1. Overview:

a. requires full disclosure

b. 90% go through on paper

c. Inquiry

i. if incomplete

ii. additional narrative

d. Investigation

i. informal hearing

2. Burden and Proof

a. burden of proof is on the applicant

i. bar does not need a very good reason to deny you

b. An applicant denied admission is entitled to judicial review, usually by state’s highest court

E. Conduct Relevant to Moral Character

1. All aspects of applicant’s past conduct that reflect on honesty & integrity are relevant to an evaluation of moral character

2. trying to keep people out who could hurt a client

a. Political Beliefs

i. cannot be denied for unorthodox political views, but can be denied for concrete acts

← Schware: just former or current admission in political party is not going to do it

← Hale: white supremacist, currently involved does not get admitted

b. Criminal Records

i. to cause disqualification crime in question must involve moral turpitude

← nature of offense and motivation of the violator are also factors

ii. no flat rule, commission of a felony does not mean you are automatically out

← but: unpaid parking tickets, failure to appear, shows a continued disrespect for the law

c. Rehabilitated Criminal

i. no flat rule of denial but very hard to show rehabilitation

← Dortch: not allowed in, still on parole

← Wall Street Journal Article: must be sufficient evidence of remorse and rehabilitation

d. Dishonesty

i. can be denied admission based on acts of dishonesty

← Friedman: cheater, not admitted

← SMD: financially irresponsible person, admitted

o bankruptcy is only enough if coupled with other fact

F. After Passing Bar & Moral Character Approved

1. get sworn in

a. oath admits you to California State Court

i. in federal courts must be admitted to each district

III. REGULATION AFTER ADMISSION

A. Sanctions for Rule Violations

1. states determine for itself what sanctions may be imposed for violations of its rules

a. L admitted in jxs subject to that jxs discipline regardless where misconduct occurs

i. L not admitted in jxs still subject to another jxs if misconduct occurred there [MR 8.5a]

B. Typically Available Sanctions

1. disbarment

2. suspension

3. public reprimand

4. private reprimand

a. CA: private reprimands are matter of public record

5. Probation

C. Effect of Sanctions in Other JXS

1. discipline in one jxs does not automatically affect a L’s ability to practice in another jxs

2. sister states accept disciplinary action by one state as conclusive proof of the misconduct

a. the sister state shall impose the identical discipline unless the imposition would be inappropriate:

i. grave injustice

ii. warrants substantially different discipline

iii. prevents lawyer who has been disbarred from freely practicing in another state

IV. UNAUTHORIZED PRACTICE OF LAW & MULTI-JXS PRACTICE [MR 5.5(b)]

A. L is subject to discipline for assisting a non-lawyer to practice law

1. quicken divorce software: UPL Braumbaugh

2. independent paralegals – usually not UPL

3. Law clerk:

a. must be authorized to go to court

b. must be supervised

i. BUT: if L just doesn’t read before signing, L on hook

B. L is subject to discipline for practicing in jxs where she is not admitted to practice

1. CA Practice of law includes:

a. Doing and performing services in a court

b. Giving advice

c. Writing letters

i. Hypo: your out-of-state relative has a dispute with a local car dealer. You write a letter to the dealer on her behalf. This is a violation in CA, and both states can punish you.

d. Having clients

2. Don’t even have to leave your state and actually enter the other

a. Physical presence not required Birwober v. Superior Court of Santa Clara Co.

3. CA: 3 Exceptions

a. allow legal services attorney’s

i. only welcomed for 3 years and must register w/ bar

b. house counsel

i. must abide by state rules and register

c. L’s temporarily in CA

i. safe harbor provisions: depositions, client meetings, give advice

← must not live or have office in CA

ii. pro hac vice

← can petition to come practice in CA if advised by another member of CA bar

o must associate a local lawyer who actively participates in the matte

a. one time only

4. Consequences of MJP

a. Will be subject to the disciplinary rules of both states

b. Criminal

c. Fee Disgorgement

i. attorney’s fees non-recoverable

← common remedy for ethics violation

5. Possibilities for Leaving the State

a. must take more bar exams

b. follow MJP rules in jxs going to

c. emergency order – Post Katrina

d. pro hac vice

i. If NOT: then UPL

V. PRO BONO & ACCEPTING APPOINTMENTS

A. Voluntary Public Service [MR 6.1]

1. A lawyer should serve people who can’t afford it, but not obligated

a. C will probably not feel confident w/ a L who is required

b. L should try to fulfill 50 hours

i. states may chose higher/lower amount

ii. can include working for reduced fees

← contemplates services to those w/ high incomes

iii. most states have money as an out

c. CA: no comparable rule w/ 6.1 B&P 6068h]

i. duty never to reject cause of defenseless

← no mandatory pro bono

o not an affirmative duty not to reject

ii. rules are silent on amount of hours

← BUT: some states require mandatory pro bono

2. Is an ethical obligations; violating is not grounds for professional discipline

a. reporting requirement: constitutional

i. rational way to encourage pro bono service

ii. way to give court info that must be useful in providing better service to poor

B. Accepting Appointments [MR 6.2]

1. A L has no general obligation to accept every case

2. BUT: a L shall not seek to avoid by appointment representing an indigent person

a. EXCEPT: for good cause

i. the rep would cause a violation of the rules

← not competent

← conflict of interest

← Others…

ii. unreasonable financial burden

← looking at percentage

← must be unjust

← can’t just be speculation

iii. client so repugnant as to impair the L’s ability to represent the C

← must be both repugnant AND impairs the relationship

o just inconsistent is not enough

a. ex: Jewish L who refuses to represent C who denies holocaust sufficient

b. very high standard

VI. DUTY OF COMPETENCE & DILIGENCE

A. Competence rules are rooted in agency law

1. Agents bind their principals, so when a lawyer acts, they bind their client

a. This can’t be undone, so if lawyer makes a mistake, client is stuck with it.

2. CR 1-100: rules are not intended to create new civil causes of action

a. Not every rules violation is malpractice

b. CA code isn’t exhaustive, may consider other things

c. CA lawyers can’t be disciplined for violating the Model Rules, but they can be considered and used as a tool for interpretation.

i. Comments are super persuasive

← BUT: technically not designed to add obligations

B. 3 Distinct Bodies of Law Dealing W/ L Competence

1. 6th amend. right to effective assistance

2. body of malpractice law

3. codes/rules of professional responsibility defining L ethical duty to provide competent rep

a. Discipline: by California State Bar

C. Competence: When representing a client, L must act competently [MR 1.1]

1. Competently includes:

a. legal knowledge & skill

i. complexity and specialized nature of mater

ii. L’s general experience

iii. preparation & study L is able to give matter

iv. whether it is feasible to refer matter, or associate w/ lawyer who is competent in field

b. thoroughness

c. preparation reasonably necessary for representation

i. must use reasonable judgment concerning:

← interests at stake

← case’s complexity

← client’s ability & willingness to pay for extensive research

ii. must investigate all relevant factual issues

← cannot give advice w/ out doing research

iii. must not neglect duties to client

← willful disregard of C’s interests

← indifference

o conscious failure/conscious disregard

D. CA: Inexperience is not incompetence [1-300]

1. you can get competent in that area

a. do research

b. associate w/ another L

2. BUT: Disclaimer will not help

a. reducing fees, or pro-bono make no difference what-so-ever !

3. MR essentially the same

E. Consequences:

1. not automatically subjected to discipline

a. must be super bad

b. repeated offenses

F. L must act w/ reasonable diligence & promptness in representing a C [MR 1.3]

1. Diligence Defined:

a. L should purse a matter on C’s behalf despite:

i. opposition

ii. obstacles

iii. personal inconvenience

b. May take whatever lawful and ethical measures required to vindicate C’s cause

c. L should act w/ dedication and commitment to C’s interest

d. W/ zeal in advocacy on the C’s behalf

e. BUT: duty of diligence does not required L to be offensive or uncivil towards adversary

2. Promptness Defined:

a. a L must control his workload so that each matter can be adequately handled

i. even when procrastination does not harm the C substantive interested, the can cause C needless anxiety and undermine confidence in L’s ability

VII. PROFESSIONAL MISCONDUCT

A. Lawyers are lawyers all the time and bound by the rules all the time

1. CA: [B&P §6106]

a. moral turpitude, dishonesty or corruption is cause for disbarment and suspension

b. Moral Turpitude: an act undertaken for the purposes of concealment or other deception

i. does not need to be criminally charged w/ anything

ii. all you need is an act that constitutes moral turpitude

← does not need to be acting L capacity

2. Model Rules: Misconduct [MR 8.4]

a. act that reflects adversely on the L’s honesty, trustworthiness, or fitness as a L i

i. can be in other respects

b. Any act involving dishonesty, fraud, deceit, or misrepresentation

i. goes to character flaw, dishonest in private life, dishonest in another aspect of life

3. Get the same result under the MR & CA

B. Client Remedies if L does Something Wrong

1. discipline by state bar

a. no money

2. malpractice

3. client protection funds

a. not enough to cover everyone

b. egregious misconduct

c. need based

4. Procedural

a. try to get the mistake undone

i. need excusable neglect

← if you have inexcusable neglect no relief

o Panzino: bad lawyer behavior client wanted the mistake fixed.

o Court didn’t undo the mistake, said lawyer wasn’t neglectful enough

ii. CA excusable neglect:

← requires lawyer’s declaration that it was his fault,

o sometimes the court will undo the mistake

← Rational:

o Want to preserve the finality of judgments

o don’t want to provide incentive for lawyers to mess up

iii. CA has positive misconduct rule for inexcusable neglect

← where the lawyer’s neglect is so extreme it is said to obliterate the existence of the attorney-client relationship, then client can get mistake fixed.

o very narrow rule.

VIII. MALPRACTICE: CIVIL MATTERS

A. Elements for Legal Malpractice

1. Duty: to act as a competent L

a. must establish C/L relationship

i. Express

ii. Implicit: lawyer knows or should know C is relying on L for services Togstad

← Nothing formal required

o just client’s reasonable belief that there was a relationship

o reasonableness of reliance is question of fact

a. Fee discussions or agreements are good evidence that relationship existed.

← Burden is on L

o use confirmation letters to show L does not represent C

o encourage C to see someone else

iii. CA: whether the C sought legal advice and L gave it

← Lesson: don’t give off the cuff legal advice!

b. intended beneficiaries (e.g. of a will) can bring malpractice claim Leak-Gilbert

i. must be reasonably foreseeable that you will hurt the beneficiary

← don’t need a A/C relationship

c. if L acted competently no basis for malpractice

i. if decision raised reasonable doubts & L’s could disagree = no malpractice

ii. if L = recommends a L must take reasonable steps to check other L’s skills and rep.

iii. Expert Standard: standard of care of a specialist in field

← if he holds himself out as a specialist

← matter required services of an expert

2. Breach of Duty: L acted negligently

a. Togstad: incompetent advice, failing to follow up

3. Causation: must be the “but for” cause & proximate cause

a. case-w/in-case

i. But for L’s negligence C would have won suit

← Fang: b/c he would have been deported anyway there is no casual connection b/w negligence & damage no malpractice

o BUT: L might still be subject to discipline for incompetence

4. Damages:

a. not necessary that C loose case, only that there would be vastly different outcome

B. Malpractice Insurance

1. not required

2. CA: don’t even have to tell them you are insured

C. Ethical Rules on Contracting w/ Client to Limit Malpractice Liability [MR 1.8(h)]

1. Waiving Liability:

a. C must be independently represented by another L

i. would want liquidated damages

ii. sophisticated client

iii. some sort of guaranteed fee

2. Settling Malpractice Claims:

a. must fir advise that person, in writing, to seek advice from an independent L

b. give that person reasonably opportunity to seek that advice

i. Reasonable opp:

← how long it takes to hire a L in the area

← SOL for malpractice

ii. distinguished from waiving liability: don’t actually need a L

3. CA: Limiting Liability to C [3-400]

a. shall not prospectively limit liability to C

i. just can’t do it – not even w/ an independent L

b. BUT: can settle liability to C if:

i. same as MR

D. Client’s Right of Action

1. only remedy for incompetence lies in bringing a malpractice suit against former L

a. agency theory: neglect of L is neglect of C

i. can’t bring suit against (

IX. MALPRACTICE: CRIMINAL MATTERS

A. Standard: must prove actual innocence

1. case w/ in case: that he actually did not do it

a. preponderance of the evidence

B. Rational:

1. don’t want criminals profiting from L’s wrong

2. have all kinds of other remedies if you are actually guilty

a. only hurt if you are really innocent

X. FIDUCIARY DUTY

A. L’s duty of honesty & loyalty to C

B. intentional tort

C. distinguished from malpractice

1. duty of care v. duty of loyalty and honesty

a. probably not available for mere L incompetence

2. no case w/ in case

D. May owe fiduciary duty to persons other than C

1. law firm

2. fiduciary duty to those the C owes duty of care to

XI. SUPERVISION & REPORTING ROLES

A. Responsibilities of supervising attorneys [MR 5.1]

1. Generally:

a. only talks about individual lawyers

i. can’t discipline the whole firm

b. Must fit into one of the 3 categories

i. lawyer order it

ii. knowingly ratified

iii. partner/direct supervisor & knows and doesn’t do anything when could of

2. Partner’s & Direct Supervisors Duties :

a. must make reasonable efforts to assure that the other L’s adhere to the ethical Rules

i. applies to any L who directly supervises the work of another L:

← don’t have to be a partner – kicks in once an associate

ii. Reasonable efforts includes:

← small firm: informal supervision may be sufficient

← large firm: more elaborate steps may be necessary

o drag them to seminars

o basic training

b. Only Liable for 2nd L if:

i. knows about the misconduct at a time when consequences can be avoided AND

ii. fails to take remedial action

3. Ethical Responsibilities for Another L’s Misconduct

a. the 1st L ordered the 2nd L’s misconduct OR

b. knew about it and ratified it

B. Responsibilities of Subordinate L [MR 5.2]

1. If L violate the rules, you’re in trouble even if a supervisor or client told you to do it.

a. L must follow ethic rules even when acting under the directions of another person

2. EXCEPTION:

a. when there is an arguable question of professional duty

i. CA: no equivalent to exception to rule

← this means that you are subject to any willful breach of the rules.

3. Options:

a. go to another partner

b. confront senior partner

c. get off case and go to another firm!

C. Responsibilities for Non-Lawyer Staff [5.3]

1. duty to educate and guide in ethics matters

a. must instruct them concerning the ethics of the profession

i. appropriate instructions on client confidences

b. should be ultimately responsible for their work

2. Duty of Partners Respecting Non-lawyer Employees

a. must take reasonable measures to assure the conduct of the nonlawyer is compatible w/ the obligations of the profession

i. Reasonble measures include:

← employee handbooks

← trainining

← understand confidentiality

3. Ethical Responsibility for Non-Laywers Misconduct

a. L ordered the conduct OR

b. L knew and ratified it

c. the L is a partner/direct supervisory responsibility AND knew and failed to mitigate

D. Reporting Misconduct [MR 8.3]

1. Must report if you know that another lawyer has committed a violation of the rules

a. affirmative duty

b. BUT: don’t have to report if information is privileged.

i. CA: don’t have to tell, no affirmative duty

c. CA: self-reporting [BP 6068(o)]

i. obligation to report yourself for violations of this section

ii. BUT: no obligation to report anyone else for anything for any reason

← filing of 3 lawsuits in 12-months against L for MP or other wrongful prof. misconduct

← entry of judgment against you in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross professional negligence

← The imposition of judicial sanctions against you

o except sanctions for failure to make discovery or for monetary sanctions less than $1000

← The bringing of an indictment or information charging you with a felony

← Conviction of a felony or a misdemeanor

o committed in the course of the practice of law,

o where your client was the victim,

o where a matter involves moral turpitude

← Imposition of discipline by a professional or occupational disciplinary agency

← Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation

iii. May be disciplined for failure to report.

XII. A/C CONFIDENCES: A/C PRIVILEGE, WORK PRODUCT, CONFIDENTIALITY

A. Duty of Confidentiality:

1. General Rule [MR 1.6]

a. L must not reveal any info relating to the representation of the client

i. applies to all info – whatever the source, even 3rd parties

b. Prohibits disclosure & use of information

i. [MR 1.8] prohibits use of the information to the disadvantage of C

c. Applies Everywhere: can’t say it anywhere – to anyone

i. Unless an exception applies

← broader than A/C privilege and Work Product Doctrine

2. Rational:

a. encourages candor b/w L& C

b. encourages C to seek early legal advice

c. helps L to discover all info relating to C’s problem

3. EXCEPTIONS:[1]

a. informed consent

i. C may voluntarily consent to waive the confidentiality info

ii. Informed Consent: C agrees to waive info after L has adequately explained the risks and reasonable alternatives

iii. CA 3-100: recognizes exception for informed consent

b. implied authorization when appropriate to carry out representation

i. ex: fact stipulation, w/ other L’s in firm, paralegal/law clerk, discreet hypothetical

← Unless gives specific instructions to the contrary

c. law or court order

d. disclosure to obtain legal ethics advice

i. call L2 for opinion on sit only disclosing enough facts to give L2 essence of problem

e. controversy or client dispute

i. if L is accused you can reveal C confidences necessary to exonerate yourself

← should be made in a manner that limits access to information and appropriate protective orders

o tiny scope

a. does not contemplate threatening to report client to INS Lopez v. Wilson

ii. Don’t have to wait for formal charges to be filed against you

f. Prevention of death/substantial bodily harm

i. a lawyer may reveal info to in order to prevent client reasonably certain death/harm

← no mandatory disclosure

← Spaulding: vacated only b/c of age – not b/c of obligation to tell

ii. no exceptions apply when your client has already done the damage Armory

iii. CA 6068(e): may but is not required to reveal

g. crime fraud/ substantial financial injury

i. must be reasonably certain

← applies even it C already acted & L’s disclosure can mitigate consequences

o controversial b/c people feel it erodes confidentiality

ii. CA does not have it

← might recognize whistleblower exception for sufficient public interest Quackenbush

4. Corporate Clients [MR 1.13]

a. If person associated w/ org. acts in a way that might be imputed to org AND

i. represents the corp, not the individuals

b. if the violation it likely to cause substantial injury to org,

c. L must act reasonably necessary to protect interest of org.

i. mandatory to tell board of directors

ii. may reveal confidences even though confidential

← reveal only necessary info – as little as possible

iii. if L is discharged shall take steps to inform highest authority

d. CA 3-600: can’t reveal confidences

i. must first try to talk person out of it

ii. then go to highest aurhotiry

iii. contemplates that you are going to resign

5. SEC

a. permissive disclosure

b. anyone “appearing and practicing”

i. broad application

c. not sure if SEC preempts

B. A/C Privilege

1. Prohibits testimony or evidence in a court or other govt proceeding

2. Protects:

a. communications

i. not the underlying information

← CA: written fee agreements are confidential

b. b/w privileged people

i. C & L

ii. agents are ok Stroh

← privilege wasn’t destroyed b/c daughter was acting as client’s agent

o interpreters, parents

← whether the C had a reasonable expectation of confidentiality under circum.

c. In Confidence

i. must take reasonable precautions to keep it in confidence

ii. 3rd parties normally destroy privilege

iii. BUT: presence necessary for obtaining legal counsel won’t destroy

← dr’s serve as conduit for information

d. For the purpose of providing legal assistance

i. crime/fraud exception: cannot hire atty to help commit crime/fraud or cover it up

← BUT: you can advise on legal consequences or defend the suit

ii. applies even when L is unaware his advice is for furtherance of such improper purpose

iii. applies to future events

3. Application:

a. don’t have to have hired L for it to apply

i. doesn’t even need to be licensed L

← as long as C believes L was licensed

4. Corporations

a. Old Test: Control Group

b. New Test: Subject Matter Test Upjohn

i. scope or privilege depends on whether it was w/ in employees job

ii. applies regardless of position of employee

C. Work Product Doctrine

1. Prohibits discovery of evidence

a. needs to be in anticipation of litigation

2. Exceptions:

a. substantial need AND

b. inability to get w/ out hardship

3. BUT: can never get information about L’s opinions

| |WHEN & WHERE |DOES |WHAT IS COVERED? |

| |DO THE RULES APPLY? |AN EXCEPTION APPLY? | |

|ATTORNEY CLIENT | |Exceptions: may not immunize by giving to |1. communications |

|EVIDENCE PRIVILEGE |Prohibits: testimony or evidence |atty |2. b/w privileged people |

|(Upjohn & Stroh) | | |3. confidences |

| |Where? judicial proceedings & depositions |Crime/fraud |4. for legal advice |

|Attorney Client Work Product |Prohibits Discovery of Evidence (still can get |Exceptions: FRCP 26b3 |1. HI: Lawyer’s opinions |

|Privilege |the information other ways) |1. substantial need & |2. LMTD: Ordinary work product |

|(Upjohn & Stewart) | |2. inability to get w/o hardship | |

| | |Exceptions: | |

|ETHICAL OBLIGATIONS |Prohibits: disclosures | |CA: secrets |

|(Spaulding) |AND use of information |MR: 1.6 | |

| | |1. informed consent | |

|Rules: |Where? everywhere |2. implied authorization | |

|MR 1.6, 1.8(b) | |3. death/sub harm | |

|CR 3-100 | |4. crime/fraud/sub financial injury | |

|B&P 6068(e) | |5.legal advice |MR: info related to representation |

| | |6.client dispute | |

|X-references: | |7.law or court order | |

|CR 3-600(D) | | | |

|MR 3.3 | |CA: | |

|Conflicts of Interest | |1. death/sub harm | |

| | |2. informed consent | |

| | |3. ? whistleblower | |

| | | | |

| | |SEC: permissive disclosure | |

I. THE LAWYER CLIENT RELATIONSHIP

A. Models of the Relationship

1. Traditional model:

a. passive client/paternalistic L

i. attempts to act in best interest of C

2. Participatory Model:

a. both parties share responsibility for success

b. both parties have power to make decision

i. Rules instruct L to establish relationships in ways that nurture the participatory model

3. Hired Gun:

a. client dominant

i. often L who is financially dependent on single client

ii. often problem earlier in career

B. Forming the Relationship

1. Usually Formed by Express engagement Letter

a. specifies scope of representation

2. Maybe Formed Inadvertently

a. whether the C reasonably believed L owes him a duty of confidentially or loyalty

i. fee agreement in writing not required

ii. can be an implied relationship

iii. do not need a viable cause of action

← existence of A/C relationship is not dependent on ultimate potential causes of action

3. Prospective Clients

a. certain duties arise even no relationship forms

i. confidences

ii. reasonable care

iii. protect client property

iv. conflicts of interest

4. How to Protect Yourself

a. write a letter “I am not representing you”

b. warn people about SOL

c. document everything!

C. Decisions to be Made by Client [MR 1.2]

1. Instructs L to abide by C’s decision concerning the objectives

a. big picture decisions belong to the C

i. settlement offers

ii. pleas

iii. waive a jury trial

iv. testify

v. whether to appeal

2. Consult w/ C as to the means by which the objectives are to be pursued

a. tactics/strategy

i. calling W

ii. granting extensions of time

b. If it’s a means issue and there is a disagreement L controls

D. Lawyer’s Duties to Client [MR 1.4]

1. mandatory duty to explain matter to C to extent reasonably necessary to permit the client to make informed decision

a. keep the client reasonably informed

b. promptly comply with reasonable requests for information

2. Client should participate intelligently in decisions to the extent the C willing and able to do so

E. Insured/Insurer

1. Rule in most states: insured is sole client

2. BUT: L still owes duty to insured b/c of legal relationship b/w insured/insurer

a. creates ugly mess w/ conflicts of interest

i. may have duty to share info w/ insurer in order to assist client

b. BUT: L must protect C’s interest

F. Client Interviews

1. Initiates the formation of the relationship

2. Explain Foundational matters

a. contemplated scope

b. confidentiality rules

c. check for conflicts of interest

d. explain client’s responsibility for fees

3. Gather Facts that will be relevant to representation

4. Learn C’s goals for the representation

a. can’t pursue illegal objectives

b. can’t force objectives on C

II. TRANSACTIONS WITH 3RD PERSONS

A. Must not make false statements of material fact or law [MR 4.1]

1. applies when dealing on behalf of C w/ 3rd person

a. includes stating something that is true but misleading OR

i. when L fails to speak or act

B. Must disclose material facts when necessary to avoid assisting C in crime/fraud

1. UNLESS: L is forbidden to do so by confidentiality

a. L must then w/draw

C. Communications with Persons Represented by Counsel

1. A L must not communicate about a matter w/ a person the L knows is represented [4.2]

a. you haven’t done anything wrong until you know

i. Both CA and MR required knowledge

← there is no affirmative duty to ask, buts it’s a good idea

2. UNLESS:

a. person’s counsel consents OR

b. law or court order authorizes

c. L is present

3. Mistake:

a. get atty info – apologize and hang up

b. call atty and apologize

D. Communication with Persons not represented by Counsel [4.3]

1. L must not give that person legal advice AND

2. must not imply that L is disinterested AND

3. must not mislead the person in any other respect

E. CA: communication w/ parties CR 2-100:

1. “Party” has a broad definition, so basically end up in the same place as under MR.

F. Communication w/ Organization

1. contact w/ employee is wrong if it would binding the org. w/ respect to proof of the matter

a. Patricia v. Center for Living & Working: rules prohibit ex parte com. w/ certain employees

i. ex: mangers, persons alleged to have committed act, decision makers

2. L does not need to obtain consent to interview if former employees

III. INTERVIEWING

A. Asking Questions: ask questions in a way we can get information

1. starts w/ broadest questions first, narrowest questions last

a. broad: a lot more freedom and options for client to answer

b. narrow: yes or no

i. if you ask lots of narrow, won’t get very much info

c. includes assumptions: needs to be way far down in topic

i. might be good for follow up questions when not getting info you need

2. Problem Questions

a. compound: asks two different things

i. tends to get confusing

3. Pay Attention to Tone

a. careful that even though its neutral it could be interpreted negative

b. don’t want to ask questions in way that is judgmental

B. Documents

1. need to give parameters on dates

2. help keep costs down

3. recognize fear about personal documents and tell them you will treat them as such

4. make sure clients understand how they can get documents

C. Interviewing Agenda

1. Introduction

a. ice breaker

b. building trust

c. confidentiality reminder

d. explain role of C & L

2. Interview

a. allow C to narrate problem

i. permit C to attempt description of events w/ a min of prompting

b. General Questions Frist

c. Specific Questions later

i. listen to pick up the logical follow up questions

3. Elicit Clients Goals and Concerns

4. Summarize or Verify the information

D. Common Mistakes

1. sticking to notes too much

2. underestimating common matters

a. keep tone friendy

3. Not thinking it through

IV. COUNSELING

A. What is counseling

1. Lawyer as advisor [2.1]

a. L should exercise independent professional judgment and render candid advice

b. not only refer to law but:

i. moral, economic social, political matters

2. Communication: prompt

a. explain a matter to extent reasonably necessary so that client can make informed decision

b. rules contemplate participatory model

3. Counseling is not promising them anything

4. Incapacitated Client [MR 1.14]

a. you may decide for them if they are about to loose something

b. BUT: you may not decide for your average client

B. Counseling Agenda

1. Explain Law generally

a. do not use legalese

2. Cover Options: preliminary stages only

a. discuss pro/con of each alternative

b. discuss potential negatives

i. ex: court costs, cross complaint

3. Elicit Verify Concerns/Goals

a. consider legal and non-legal consequences

4. Closure

a. set up specific next step

b. explain any deadlines

C. Threatening to File Complaints CA 5-100

1. a member shall not threaten to present: criminal, administrative or disciplinary charges to obtain an advantage in civil dispute

a. applies to only the things on list

2. L is allowed to:

a. state we intend to pursue all legal options

b. intent to file civil suit

3. Rational:

a. form of coercion

b. will frighten most people

D. Constraints upon claims [3.1]

1. must be a basis in law and fact

a. will be frivolous if a lawyer cannot make a good faith argument on the merits

i. lawyer in criminal defense is given greater latitude that lawyer in civil

← must be careful to avoid frivolous arguments, objections and motions

← may not use tactics to delay

b. a lawyer is not frivolous if she asserts a good faith argument for an extension of existing law

2. Can’t do things solely to harass

a. can enjoy it - but it can’t be the sole purpose

E. Alternatives & Counseling

1. Lots of Explaining

a. Do not think of options as mutually exclusive

i. think were they intersect w/ other options

b. Think about timing

i. ex: judgment before disbarment

c. Need to communicate past numbers

i. explain variable in control and out of control

2. Negotiation/Investigation

a. facts and circumstances of event

b. not a solutions

i. step toward solution

c. litigation search

d. administration search

3. ADR

a. Don’t need definitions: need big picture statement

b. can mediate much earlier in process

c. voluntary

d. success is figuring out his entire case and defense

e. types

i. private mediator/arbitrator

← cost more, but much more flexible on timing

ii. non-profits

iii. licensing boards

f. Can include non-cash settlements

g. arbitration: might not mean less money at all

4. Administrative/Disciplinary Options

a. Pro: prevent others from being hurt & personal gratification

i. not mutually exclusive

ii. no costs

b. Con: out of your hands & no monetary compensation

i. timing is critical here

5. File Lawsuit: what would happen in 30-60 days

a. Pro: force him deal with us, get access to his files, question him under oath

b. Cons: filing fees ($320); notifying defendant of case ($30);

i. stressful & slower

V. EMAIL & LETTER

A. Email to Partner

1. think before you send

a. purpose driven

i. if you wouldn’t call – don’t send

2. Review Before Send

a. Re line: needs to be very specific

b. Don’t CC over someone’s head unless told specifically

3. Review More Before Send

a. proof read and make it look formal

i. use capital letters

← how would it look in printed format?

b. Check Tone

i. don’t be too cursory or too short ( can come across as offense

ii. no symbols or abbreviations

4. Don’t send

a. replies to every email

b. reply all

c. nothing angry or criticisms of any kind

d. answer w/ out the question

B. Letter

1. give the C an opportunity remember things

2. roadmap – future relationship next steps

3. use headings

4. Don’t write colloquial

5. Should use we & firm

[pic]

-----------------------

[1] Does this mean CA does not recognize implied authorization or legal advice – or does it mean there is no equivalent rule?

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download