Professional Responsibility Notes

(1)

Beginning Attorney Client

Beginning Attorney Client Relations

Relationship

hip

Rule: Attorneys have no duty to accept representation.

Except: When Appointed by Court.

Rule: Attorneys have duty to

Rule: Attorneys have duty to reject when:

reject when:

--

Violation of Law

--

Disciplinary Rule

--

Frivolous claim

--

Not competent to handle the matter

Rule: In

Rule: In litigation withdrawal requires court permission.

litigation withdrawal requires court permission.

Must Refuse:

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Motive to harass or injure

--

Frivolous case

--

Incompetent or too busy

--

Personal feelings may impair effective counsel

--

Lawyers mental or physical condition impair effective counsel

May Withdraw:

--

Any reason

o

Without material adverse effect on client interest

o

o OO

r, if client consents

--

Client Persists in Criminal or Fraudulent Conduct

o

o UU

sing services, may

o

Lawyers assistance, must

--

Client Has Used Attorney's Services to Commit Past Crime or Fraud

--

Client's Objective

IsIs

Repugnant or

Repugnant or Agains

Against Lawyer's Beliefs

t Lawyer's Beliefs

--

Client Breaks Promise to Attorney

o

client substantially fails to fulfill an obligation to the attorney

o

warned that the attorney will withdraw unless it is fulfilled

--

Financial Hardship for Attorney

--

Client Will Not Cooperate

--

Other Good Cause

Procedure to Withdraw

--

permission of the tribunal before withdrawal permission of the tribunal before withdrawal

--

reasonable notice reasonable notice

--

time time to obtain another attorney;to obtain another attorney;

--

R R efunding attorneys' fees efunding attorneys' fees paid in advance paid in advance

--

R R eturning all papers and property eturning all papers and property

(2)

LAWYER'S DUTIES OF COMPETENCE AND DILIGENCE COMPETENCE

-

legal knowledge, skill, thoroughness,

o The complexity and specialized nature of the matter

o The lawyer's general experience;

o The lawyer's training and experience in the field in question

o The preparation and study the lawyer is able to give the matter

a lack of legal knowledge or skill really means a failure to seek it

-

and preparation

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reasonably necessary for the representation DILIGENCE

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reasonable diligence and promptness

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dedication and commitment to the client's interests and

o with zeal in advocacy on the client's behalf

-

control workload

o adequately handled each matter

Promptness

-

devastating to Clients Interest

o court-ordered deadline missed

o statute of limitations permitted to run

-

client needless anxiety

(3)

SINGLE VIOLATION SUFFICIENT TO IMPOSE DISCIPLINE MALPRACTICE LIABILITY

A malpractice action differs from a disciplinary matter in three ways: In a malpractice action:

(i) the forum is a civil court, not a disciplinary tribunal;

(ii) the attorney's adversary is an injured plaintiff, not the state bar; and

(iii) action is to compensate the injured plaintiff, not to punish the attorney, and not to protect the public from future wrongs.

Legal ethics rules are for disciplinary purposes.

-

Not designed to be a basis for civil liability

-

lawyer's breach of an ethics rule does not automatically or presumptively mean that the lawyer has committed malpractice

-

Courts regard an ethics violation as relevant evidence that conduct was below the appropriate standard of care.

Theories of Malpractice Liability

-

Intentional Tort

o fraud,

o misrepresentation, o malicious prosecution, o abuse of process, or o misuse of funds

-

Breach of Fiduciary Duties

An attorney acting as a fiduciary for the client owes the client all of the customary duties of a fiduciary, including:

o loyalty,

o confidentiality, and o honest dealing

-

Breach of Contract

o express oral agreement o implied promise to use

 ordinary skill and care to protect the client's interests

-

Negligence

o Duty of Care

 Standard of Care

y competence and diligence normally exercised by attorneys in

similar circumstances

o Breach of Duty of Due Care  Errors of Judgment

y An attorney is not liable for "mere errors in judgment" if the

judgment was well-informed and reasonably made  K nowledge of Law

y An attorney is expected to know the ordinary, settled rules of

law

o Legal Causation

 injury would not have happened but for the defendant's negligence o Damages

 Plaintiff must prove damages

y Direct

(4)

Liability for Negligence of Others

The ordinary principles of respondeat superior apply in suits for professional negligence.

Thus, an attorney can be held liable for injuries caused by a negligent employee associate when acting within the scope of employment.

Contracting with Client to Limit Malpractice Liability

-

Client must be independently represented when signing such agreement

Settling Malpractice Claims

-

advise in writing, to seek advice from independent lawyer about the settlement

and

-

giving that person time to seek that advice

Even if the lawyer pays the client back for any damage he caused, he is still subject to discipline.

DUTY OF CONFIDENTIALITY

Rule: Lawyer must not reveal any information relating to the representation of the client. Exceptions:

-

Informed Consent" _{informed consent}" _{means that the client agrees to a proposed} course of action after the lawyer has adequately explained the risks and reasonable alternatives ,

-

implied authorization to carry out representation, unless client says NO

-

AttorneysDefense

o Reveal only necessary o Attempt to limit disclosure

-

Obtain ethics advice

-

Court Order

-

(May)Disclosure to PreventDeath or Substantial Bodily Harm

-

Disclosure to Prevent or Mitigate Substantial Financial Harm

o (Future) reasonably certain to result in substantial financial harm to

someone, if the client is using or has used the lawyer's services in the matter.

o (Past)The same is true if the client has already acted, and the lawyer's

disclosure can prevent or mitigate the consequent financial harm

Encourages candor between the lawyer and the client,

Encourages the client to seek early legal advice, and helps the lawyer discover all of the information relevant to the client's legal problem

Attorney-client privilege concerns only the disclosure of information. Discipline.

Duty of confidentiality concerns both the disclosure and use of information. Discipline and Malpractice.

ATTORNEY-CLIENT PRIVILEGE Rule:

-

prohibits a court or other governmental tribunal from compelling the revelation of confidential communications

Exceptions to Privilege

-

client seeks the attorney's services to engage in or assist a future crime or fraud

-

communication that is relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the attorney-client relationship.

(5)

CONFLICTS OF INTEREST

RULE: Substantial risk that lawyer's representation of client will be materially and adversely affected by:

-

the lawyer's own interests or

-

the lawyer's duties to

o another current client, o a former client, or o a third person

If conflict is apparent in beginning, Attorney must not take the case.

If Conflict becomes apparent after taking the case, and informed consent from both clients will not remedy, then Lawyers must withdraw.

A lawyer's failure to handle a conflict properly can have three unpleasant consequences:

(i)

disqualification as counsel in a litigated matter,

(ii)

Professional discipline, and

(iii)

civil liability for legal malpractice.

Imputed Conflicts of Interest

when one of the lawyers cannot take on a matter because of a conflict of interest, the other

lawyers in the "firm" are also barred from taking on that matter.

Concurrent Conflicts of Interest

a lawyer must not represent a client if the representation creates a concurrent conflict of interest.

-

Directly adverse to another client

-

Significant risk of Materially limiting representation Informed, Written Consent

Lawyer

may

represent a client if all four of the following conditions are satisfied:

(i) belief of competently and diligently represent each affected client, despite the conflict of interest;

(ii) Not prohibited by law:

(iii) Not involve asserting a claim by one client against another client represented by that lawyer in the same litigation (or other proceeding before a tribunal); and

(iv) each affected client gives informed, written consent.

Reasonable Lawyer Standard

If a reasonable lawyer reviewing the facts finds that the clients interests cannot be adequately protected despite the conflict then conflict in unconsentable.

Informed

Client is

aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm them.

Civil Litigations

Lawyer may represent two plaintiffs or two defendants if both give informed consent in writing.

-

Analyze fact to ascertain the conflicts

o

Find effective representation possible despite conflict

-

D

isclose potential conflicts to both

-

Invite informed written consent

(6)

Business Transactions with Client and Money or Property Interests Adverse to Client

A lawyer's professional training, together with the bond of trust and confidence between a lawyer and client, create a risk that the lawyer can overreach the client in a business, property, or financial

transaction. Therefore, a lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client, unless all of the following conditions are satisfied:

-

fair to the client;

-

terms are fully disclosed to the client in writing

o client can reasonably understand o cover the essential terms o lawyer's role in the transaction

-

advised in writing that he should get the advice of an independent lawyer about the arrangement before entering into it

-

The client gives informed consent, in a writing that the client signs. Propriety Interest in Litigation:

Lawyer must not acquire a proprietary interest in the cause of action or the subject matter of litigation that the lawyer is conducting for the client.

Exception: Contingency Fees, Attorney Lien

CONFLICTS INVOLVING THE INTERESTS OF THIRD PERSONS

A lawyer must not accept compensation from a third person for representing a client, unless three conditions are met:

(i) client gives informed, written consent;

(ii) third person does not interfere with the lawyer's independence or the representation (iii) does not compromise the client's confidential information.