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Controls on Lawyer Conduct a. Discipline i. usually imposed to protect the public and for the benefit of the profession.
ii. Disbarment, suspension, reprimand b. Malpractice i. Contract agreement, breach, damages (damages more limited than in tort)
ii. 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 c. Liability for Client Conduct MR 1.2 i. Prohibited from "counseling a client to engage or assisting a client in conduct that the lawyer knows is criminal or fraudulent."
d. Contempt e. Disqualification and Sanctions i. Disqualification (same as with COI)
ii. FRCP 11/MR 3.1
1. Money sanctions against lawyers who file frivolous claims.
a. Nonfrivolous claim has a basis in fact and a basis in law b. Safe harbor under FRCP 11, notice must be given to alleged offending lawyer.
Formal Aspects of Attorney-Client Relationship a. Undertaking Representation i. No general duty to undertake particular representation.
ii. Limited duty to accept representation: Pro-bono, special court appointments (unless good cause exists to decline appointment)
iii. Duty to reject representation (MR 1.16a): Lawyers must reject representation when the representation will violate ethics rules or other law.
iv. 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.
b. Fees (MR 1.5) i. A lawyer's fee must be reasonable ([nonexclusive] factors in MR 1.5)
ii. 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).
iii. 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.
iv. *Contingent Fees MR 1.5c
1. Writing Must be in writing and signed by the client.
a. 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 v. 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.
vi. NO minimum fee schedules allowed anymore (Goldfarb)
c. Fiduciary Duties i. General duty scrupulous good faith, candor, and care in the management of the beneficiary's interests.
ii. 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)
d. Competence and Diligence (MR 1.1, 1.3)
i. 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)
ii. 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. Common violations of duty of diligence:
a. when a lawyer begins work on client's matter and then does little or nothing to pursue a conclusion b. when lawyer lies or misleads client about progress e. Communication and Shared Decision-Making (MR 1.2 and MR 1.4)
i. Communication (MR 1.4) 1. A lawyer must keep a client informed of the status of the client's matter ad must respond to a client's reasonable requests for information. (MR 1.4a)
ii. Shared Decision-Making (MR 1.2)
1. Scope of representation Lawyer and client may discuss.
a. Duration Can negotiate over the lengths to which the lawyer is committed to proceed in the matter.
b. Subject matter Lawyer and client may negotiate the breadth of the lawyer's service.
2. Means and ends Lawyers are generally empowered to determine the best means to use to achieve those ends. (MR
3. Lawyer independence from client views A lawyer's representation of a client does not implicate the lawyer's sharing of responsibility for the client's cause or views regarding matters relevant to the representation. (MR 1.2b)
4. Counseling crimes or frauds Lawyers are prohibited from counseling or assisting their clients in the commission of crimes or frauds. (MR 1.2d)
a. *May be civilly or criminally liable
5. Client disability When a lawyer represents a client whose capacity to make decisions regarding the representation is diminished, the lawyer must attempt to maintain an ordinary lawyer-client relationship to the extent possible. In seeking protective action for a client, a lawyer must reveal confidential information to the extent reasonably necessary to protect the client's interests. (MR 1.14)
f. Terminating Representation i. Formal lawyer-client relationship ends with termination of the representation. *Many duties will continue, such as confidentiality and limited conflict avoidance.
ii. Rejection of representation is a form of termination.
iii. Mandatory withdrawal (MR 1.16a)
1. Continued representation will violate the ethics rules: MR
2. Continued representation will violate other law: MR 1.16a1
3. Lawyer's physical or mental health is impaired: MR 1.16a2
4. Lawyer is discharged: MR 1.16a3 iv. Permissive withdrawal (MR 1.16b)
1. No harm to client A lawyer may withdraw if it can be done without material adverse effect to the client. (MR 1.16b1)
2. Some harm Even if some harm may come to the client from the withdrawal, a lawyer may withdraw when any of the following exist:
a. Lawyer's RB that the client is acting criminally or fraudulently: MR 1.16b2 III.
b. Past use of service for crime or fraud: MR 1.16b3 c. Client actions that are repugnant or imprudent: MR
1.16b4 d. Client failure to meet obligations: MR 1.16b5 e. Unreasonable financial burden: MR 1.16b6 f. Client unreasonably difficult to work with: MR 1.16b6 g. Other good cause: MR 1.16b7 v. Court order to continue: Even when a lawyer has good cause to withdraw, a court may order the lawyer to continue the representation. (MR 1.16c)
vi. Procedural requirements for withdrawal:
1. Notice Clients must be given reasonable notice before the withdrawal is effected. (MR 1.16d)
2. Court approval When litigation is pending, a lawyer must obtain the court's permission to withdraw from representation. (MR 1.16d Comment 3)
vii. Duties upon termination of LCR
1. A lawyer is obliged to take reasonable measures to minimize harm to the client upon termination of representation. (MR
a. Fee refund Any fees that have been paid to the lawyer but not yet earned must be refunded to the client upon withdrawal.
b. Client's papers and property Papers and property of the client that are in the lawyer's possession must be promptly returned upon withdrawal. Lawyer may not keep materials in an effort to persuade client to pay remaining fee that is owed to Lawyer. A lawyer may get a lien (depending on jx).
viii. Fee liability upon termination
1. Although a client may discharge a lawyer without cause, the client will continue to have an obligation to pay fees to the lawyer that have already been earned. (MR 1.16d)
a. Fixed or hourly fees Fee will be calculated as the value of the services rendered. (quantum meruit)
b. Contingent fee Depending on jx, lawyer may get no fee, the full fee, or the reasonable value of lawyer's services.
Confidentiality a. MR 1.6a "information relating to the representation of a client"
b. Scope of ACR When information is within the ethical duty of confidentiality, but outside the protection of the evidentiary privilege, a judge may order the lawyer to speak in the form of testimony or otherwise.
Although the lawyer would not be free to speak absent court compulsion, the coverage of the evidentiary privilege largely determines whether compulsion will be well founded. c. In general, ACP is created when a client or prospective client communicates in confidence to a lawyer (or a person the client reasonably believes to be a lawyer) who is being consulted as a lawyer.
i. Applies to both clients or prospective clients ii. *Desire for confidentiality required ACP is not created when the communication is made in circumstances that do not indicate a desire for confidentiality by the client.
1. Eavesdroppers: Most modern authority indicates that if the client exercises reasonable care to avoid being overheard (or intercepted when speaking on the phone), the court should rule an eavesdropper's testimony inadmissible upon assertion of the privilege.
2. Multiple clients: When multiple prospective clients consult a lawyer together, each holds a privilege that can be asserted against 3Ps, but none of them can prevent others among the prospective clients from testifying or otherwise waiving the privilege.
iii. Communication, not knowledge: ACP covers the client's communication, not the client's knowledge that was communicated.
iv. Lawyer observations: ACP may protect lawyer observations that result directly from the client's protected communications, as long as the lawyer does nothing to prevent other interested parties from making the same observation.
v. Physical evidence: Although the observations of a lawyer that result directly from client communication may sometimes be privileged,
items collected by the lawyer are not privileged.
1. Client holds privilege Client can waive ACP.
2. Crime-fraud exception d. To whom is the duty owed?
i. In general, the duty is owed to clients, former clients, and prospective clients.
1. Former clients: Full duty.
2. Prospective clients: Limited duty
3. No fee necessary: Not necessary for a fee to be charged for the duty of confidentiality and evidentiary privilege to be effective.
ii. Organizational clients: Lawyers represent organizations as clients.
(MR 1.13, Comment 3, 6)
1. Agents of the organizational client: Covered by ACP if (1) the information communicated is treated as confidential within the organization, and (2) it is communicated to the lawyer so that the lawyer can give advice or counsel to the organization.
2. Government agency client: Government lawyers may strike a confidentiality balance somewhat more towards PI in disclosure of government wrongdoing.
iii. Client and lawyer agents
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