Professional Responsibility Atk Outline

Professional Responsibility

Attack Outline

1. Controls on Lawyer Conduct

   1. Discipline

      1. usually imposed to protect the public and for the benefit of the profession.

      2. Disbarment, suspension, reprimand

   2. Malpractice

      1. Contract agreement, breach, damages (damages more limited than in tort)

      2. Tort duty, breach, causation, harm (Togstad)

         1. Duty: measured by the skill and knowledge of ordinary lawyers in the community, unless the lawyer is an expert in a specialized field.

         2. Breach: is the strategy reasonable? *when a lawyer chooses a reasonable course of action and the course produces bad results, the lawyer has NOT breached duty of care owed to client

         3. Causation: “case within a case” – client will have to prove that he/she would’ve prevailed in the proceeding but for the lawyer’s breach of duty of care

         4. Harm: damages

   3. Liability for Client Conduct MR 1.2

      1. Prohibited from “counseling a client to engage or assisting a client in conduct that the lawyer knows is criminal or fraudulent.”

   4. Contempt

   5. Disqualification and Sanctions

      1. Disqualification (same as with COI)

      2. FRCP 11/MR 3.1

         1. Money sanctions against lawyers who file frivolous claims.

            1. Nonfrivolous claim has a basis in fact and a basis in law

            2. Safe harbor under FRCP 11, notice must be given to alleged offending lawyer.

2. Formal Aspects of Attorney-Client Relationship

   1. Undertaking Representation

      1. No general duty to undertake particular representation.

      2. Limited duty to accept representation: Pro-bono, special court appointments (unless good cause exists to decline appointment)

      3. Duty to reject representation (MR 1.16a): Lawyers must reject representation when the representation will violate ethics rules or other law.

      4. ACR formally begins when a client reasonably believes that the lawyer has undertaken to provide the client with legal service.

         1. No K or fee payment necessary.

   2. Fees (MR 1.5)

      1. A lawyer’s fee must be reasonable ([nonexclusive] factors in MR 1.5)

      2. In general, a written K setting the fee is preferred but not required (unless contingent fee; see below).

         1. Comment 2 Important to establish and explain the fees, deductions, terms, etc. for a new client.

         2. Comment 2 Desirable to furnish the client with at least a simple memo or copy of the lawyer’s customary fee arrangements (general nature of services, basis, rate or total amount of fee, whether and to what extent the client will be responsible for any costs, expenses or disbursements in the court of representation).

      3. Advanced Payments

         1. Lawyer may require advance payment of a fee, but must return any unearned portion. MR 1.16d

         2. Lawyer may accept property in payment for services, as long as it does not involve the acquisition of a proprietary interest in the cause of action or subject matter of the litigation (prohibited in MR 1.8i)

         3. Fees paid in property instead of money may be subject to requirements in MR 1.8a because they have qualities of a business transaction.

      4. *Contingent Fees MR 1.5c

         1. Writing Must be in writing and signed by the client.

            1. Must explain the way in which the fee will be calculated and the way in which deductions for expenses will be calculated

         2. Ending statement Must provide ending statement in writing to the client explaining the outcome of the matter and providing the calculation of the fee and expenses.

         3. No contingent fees for domestic relations matters or criminal cases. MR 1.5d

      5. Fee Splitting 1.5e

         1. “Referral fees” are looked down upon in the community.

         2. Fee splitting is permitted if (1) the total fee is reasonable, (2) the client agrees to the arrangement, (3) either the fee is shared in proportion to the work done or the lawyers accept joint responsibility for the representation.

         3. Must be confirmed in writing.

         4. Fees may not be shared with non-lawyers except in very limited circumstances.

      6. NO minimum fee schedules allowed anymore (Goldfarb)

   3. Fiduciary Duties

      1. General duty scrupulous good faith, candor, and care in the management of the beneficiary’s interests.

      2. Handling of clients’ money and property

         1. Client trust accounts Must maintain client trust accounts and safety deposit boxes for the safekeeping of client property. Must maintain the account in the state in which they practice, must maintain records of the account for later examination, and they must keep client property and funds separate from lawyer property and funds.

         2. Commingling funds Only client money may be in the trust account. Lawyer must maintain separate office operating account. (MR 1.15a)

         3. Prompt delivery and accounting Unless otherwise agreed upon, when Lawyer receives property of another, the Lawyer must promptly deliver that property and provide an accounting on request. (MR 1.15d)

   4. Competence and Diligence (MR 1.1, 1.3)

      1. Competence (MR 1.1)

         1. The lawyer must possess and exercise, on the client’s behalf, “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

         2. *not the same as malpractice, although they operate similarly

         3. Lawyer is not required to know the law that governs the client’s legal claim before undertaking representation, provided the lawyer will be able to acquire the necessary knowledge with reasonable diligence. (MR 1.1, Comment 2)

         4. Lawyer will be required to have basic lawyering skills like: understanding of use of precedent, legal research skills, ability to ID and evaluate a client’s problem, and writing or drafting. Lawyers must maintain basic competence in technology that aids client service. (MR 1.1 Comment 8)

         5. In an emergency situation, Lawyer may provide limited assistance to a client in a matter the lawyer would ordinarily need to inquire and study into further before the service is rendered. This limited assistance must be limited to that which is necessary under the circumstances. (MR 1.1 Comment 3)

      2. Diligence (MR 1.3)

         1. Lawyers are obligated to be diligent (timely) on their client’s behalf.

         2. Duty to expedite matters consistent with client interests. (MR 3.2)

         3. Common violations of duty of diligence:

            1. when a...

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