Professional Responsibility Outline
Professor Crystal - Spring 2019
Introduction

1. Foundations of PR - Lawyer as:
o Fiduciary

Fundamental duties:

Competence  ABA 1.1,
o ABA 1.3 for diligence

Communication  ABA 1.4

Fairness  ABA 1.5

Confidentiality  ABA 1.6

Loyalty  ABA 1.7

Safekeeping of Client Property  ABA 1.15

Officer of the Court

Adversarial system: (1) neutral decisionmaker, (2) competent advocates zealously representing clients, (3) fair rules of procedure

Duties to Court and Adversaries:

Prohibition on making frivolous claims  ABA 3.1

Duty to reveal client perjury  ABA 3.3(a)(3)

Prohibition on communication with represented parties  ABA 4.2

Policy Reasons for Limitations:

Excessive zeal on behalf of client can undermine adversarial system

Certain 3P/societal interests can outweigh client interests

Own Person

COI, legal fees, marketing of services

2. Tension in Lawyers' Obligations (In Re Pautler)
o Prosecutor pretends to be PD on phone.
o Issues + Holdings:

Pautler violated MRPC 8.4(c) - "conduct involving dishonest, fraud, deceit or misrepresentation"

Violated MRPC 4.3 - advice to unrepresented person whose interest may be adverse to lawyer's own client.

***Pautler could not have asked a PO to impersonate PD  8.4(a) - cannot do through the acts of another which lawyer could not do himself.
o Tensions:

Pautler  emergency situation, pressure of situation, duty to prevent future harm, conflicting obligations as peace officer, misrepresentation permissible in some cases

Court/Judges  concerned about integrity and reputation of profession (recent substantial criticism), removed from pressure of situation (hindsight 20/20), worries that exceptions to rules may promote abuse of rules

3. Sources of Professional Obligations

1. PR Rules and Standards:

Rules of Professional Conduct

Ethics Advisory Opinions

Interpretations of the Rules - persuasive but NOT binding.

ABA Committee on Ethics and PR

NYSBEAC and NYCBC

Standards of Practice

Published by organizations in particular areas of practice

Persuasive

Deal with specific problems in particular areas of practice

Institutional Norms

2. Law Governing Lawyers

(i) Court decisions, sometimes rely on PR rules

Disciplinary, malpractice, disqualification, sanctions, FRCP 11, criminal prosecutions

(ii) Statutory Law

(iii) Admin Rules and Regs (ex. SOX)

(iv) Court rules (Rest. v. Model Rules)
o 3. Relationship Btw PR Rules and Standards & Governing Lawyers

1 (i) Sometimes law overrides professional standards (ex. State statutes limiting contingency fees)

(ii) Sometimes law deals with substantive issues not covered by rules/standards (ex.
Confidentiality, ACP)

(iii) Sometimes law supplements rules or standards (ex. improper questioning)

(iv) The law often deals with the remedy and not standards (ex. IAC)

4. Developing Philosophies of Lawyering and Moral Accountability

(i) Client-centered philosophy/neutral partnership

Principle of professionalism: lawyers should do everything possible to advance client interests; only refuse to act if clear violation of PR rules.

Principle of non-accountability: lawyers not morally responsible for actions taken in their roles on behalf of clients

**Possibly allows for justification of immoral actions

(ii) Philosophy of institutional values

Values that express social/institutional role of lawyer

Wendel: lawyer is quasi-public official who has obligation to respect law (not override for personal interest/use as instrumentality)

(iii) Rule of Law

(iv) Philosophy of self interest/defensive lawyering

Maximize own interest: money, reputation, avoidance of risk (discipline)

5. Morality

(i) Freedman-Tigar

Both agree morally accountable for choice of clients but differ on whether accountability requires public justification

Freedman: lawyers morally responsible for decision to undertake representation

Tigar: burden would make it harder for clients to obtain representatives, possible violation of ACP

(ii) No moral responsibility in choosing which cases to take or fore the outcome of case
(Standard Conception)

(iii) Moral responsibility for choice of area of practice

(iv) Responsibility to engage in moral dialogue with client during representation, but client maintains right to make decision

(v) Lawyers may remove from representation if they oppose client on moral grounds

(vi) Lawyer who decides to represent client, despite strong moral obligations, is not morally accountable (MR 2.1, 1.16(b)(4), 1.2(b))

(vii) Obligation to be morally active in representation of clients

(viii) Lawyer has moral obligation to preserve legal institutions (takes moral obligation from practice to institutional dimension)


o

o

Duty of Competence (ABA 1.1)
o Occasional sanctions for lack of competence (Sandstrom)
o Togstad: violations can lead to malpractice liability

Holding: Lawyers can be liable for negligence in turning down cases.

Negligence in giving advice that Togstad did not have a cause of action without adequate factual investigation

Negligence in failing to inform of upcoming expiration of SOL
o Facts: Lawyer told Togstad that he "did not think we had a legal case, however, will discuss with his partner", heard nothing and assumed there was no cause of action.
o What should lawyer have done?/Lessons:

Recommend they talk to another attorney

Do not give specific dates but say that the SOL is ticking

Don't explain exactly why can't get into the case (that speaks to the merits of the case.
o Legal Malpractice Action:

Several COAs: (i) negligence, (ii) breach of fiduciary duty, (iii) fraud, (iv) misrepresentation, (v)
nondisclosure

Elements of negligence: (i) duty, (ii) breach, (iii) causation, (iv) harm/dmgs

Expert testimony required

Proof of "cases within a case" to establish causation

Defense: Judgmental immunity  lawyers not liable/required to predict unsettled areas of law.

2 o

*Courts do not recognize malpractice claims in criminal cases, only IAC.
o Stickland: Defendant must show that counsel (i) fell below objective reasonable standard of
"reasonably effective assistance" and (ii) this prejudiced the judgment.
o Nix: lawyers' obligation to present or rectify perjury by criminal defendant.

Nonengagement Notices and Engagement Agreements

1. Nonengagement Letters [should include the following:]
o (i) Inform the PC that the firm has decided NOT to undertake representation

(ii) Notify PC they may want to consider seeking advice of other counsel

(iii) Apprise PC that any action should be taken promptly because of SOL

2. Limited Engagement Letters

Purpose: (i) clarify expectations about what lawyers shall do, (ii) limit lawyer's liability by excluding matters from engagement

Scope: exclude certain matters (ex. tort, worker's comp claims)
o Lawyer Limited Limitations for Malpractice:

Permissible if client has: (i) informed consent, (ii) reasonable under the circumstances (ABA

1.2(c))

Lerner: Stated in engagement letter that he had not conducted discovery/factual investigation + not able to render fairness opinion on agreement.

Barnes: failure to protect security interest (should have said representation ended with closing of sale)

Flatlow: Questionable, limiting representation to portion of a motion (probably not right)
o Example of Limited Engagement Letter

This engagement is limited to the following matter [ID matter specifically]. The firm had not been engaged to represent the client in any other matter unless the firm and the client have entered into an engagement agreement covering that matter.
o Additional NY Language (NYRPC 1.2, comment 6A)

Lawyer must adequately disclose (i) limitations, (ii) reasonably foreseeable consequences of limitation

Should point out if additional services are necessary or advisable then: (i) client may need to retain separate counsel which could (ii) delay, additional expense

3. Engagement Agreements (ABA 1.5b and c)
o Rule 1.5(b): Duty to communicate (i) client scope, fees and expenses, (ii) before or within, (iii)
reasonable time after commencement.
o Rule 1.5(c): Must provide whether contingent fee computed BEFORE/AFTER expenses.
o Provision Checklist:

Key Provisions:

ID of matter and limitation to matter

Legal fees

Expenses

Termination

Liens

Client's File

Disputes/arbitration

Use of Technology

General Provisions

Other

Other Provisions

Hiring + fee division with co-counsel

COI

Other Issues to Discuss

General form of agreement

Authority of firm

Firm + Client's respective obligations

NY Specific Provisions (NYCRR 1215.1)

Explanation of scope of legal services to be provided

Explanation of attorney's fees to be charged, expenses + billing practices

Client right to arbitrate fee disputes (under Part 137)

3 Note: Lawyer may comply with requirement by entering into signed written retainer agreement that addresses the matters set forth above (NYCRR 1.15.1(c))

Exceptions in NYCRR 1215.2

Notable NY Differences

NY does not require client to sign contingent fee agreement, but must provide client with writing setting forth terms of agreement (NYRPC 1.5(c))

Fees in domestic relations matter must be in writing and signed (NYRPC 1.5(d)(5)
o Limitations on security I domestic relationships matters (NYRPC 1.5(d)(5)
(iii)

Required Statements of Clients: Rights and Responsibilities in both domestic relations matters and matters in general (NYRPC 1.5, comment 5A)

NY Judiciary Law (Art. 15) provisions apply to fee agreements

Ex. 474(a) - limitation on contingent fees in medical, dental, podiatric malpractice

Invalid Settlement unless consented to in writing by lawyer who entered appearance, or approved by court (Judiciary Law 477)

Statutory Charging Lien (NY Judiciary Law 475, 475A): Perfect lien by giving notice to person against whom claim is brought

Applies from commencement of action OR answer with counterclaim
General Language Concerns:

High percentage of "after trial of the case begins" - specify when trial beings (calling of case,
selection of jury, swearing of jury, opening statement, etc.)

Client retains right to decide (i) jury trial, (ii) plea, (iii) settlement, (iv) client testifying (MR

1.2(a))


o

Legal Fees, Expenses & Client Property

1. Legal Fees

Rule 1.5a - Fees must be reasonable.

Factors: time, labor required, novelty/skill, customary fees, experience, reputation, fee contingent (there are others)

Rules/Statutes Limiting Fees:

NY Judiciary Art. 15, 474a - limits contingent fees in malpractice cases

Rule 1.5b - Disclose fees before representation or within reasonable time after commencement

Exception: charging regularly represented client on same rate.

No writing requirement (although preferable)
o Various types of fee arrangements

Hourly

Contingent

Unreasonable if: high likelihood of substantial recovery by trial/settlement so that lawyer bore little risk of nonpayment OR clients recovery is likely to be so large that lawyer's fees clearly exceed sum appropriate for services performed and risks assumed

Fixed/Flat

Value

Blended

Special obligations regarding contingent fees (MR 1.5c)


1. Must be in writing and signed by client


2. Must state method by which fees is computed, including percentages in event of settlement,
trial or appeal


3. Litigation or other expenses client responsible for


4. Whether expenses will be deducted before or after computation of fee


5. ID expenses client responsible for regardless of outcome


6. Written settlement statement at conclusion showing remittance to client and how computed

**Improper Contingent Fees (Rule 1.5(d)): Contingent for securing divorce, or award in lieu of divorce, and criminal cases.
o Fee splitting with lawyers [MR 1.5(c) permitted if:]

(i) Division must be either in proportion to services performed or each lawyer must accept joint responsibility for matter

4 

--

5 (ii) Client must be informed of share each lawyer will receive, and client must agree
(confirmed in writing, does not need to be signed) AND
(iii) Total fee must be reasonable.
Rule 5.4(a) on impropriety of fee splitting with non-lawyers and exceptions.

2. Expenses

MR 1.8(e): Lawyer shall not provide financial assistance to a client in connection with pending/contemplated litigation.

Ex. Prohibition on loaning living expenses, extended to guarantee of loan by 3P (MR 1.8,
comment 10)

Exceptions:

May advance court costs and litigation expenses, repayment of which may be contingent on outcome

If representing indigent client, can pay court costs and litigation expense

Improper Expenses: charges in excess of actual cost, overhead

Payment to 3P Out of Settlement Proceeds

Does provider have interest in settlement? 90-1

Client assignment

Agreement by lawyer to protect

Statutory lien or subrogation rights of 3P providers

Subrogation rights under policy

If dispute btw client and 3P, hold in trust until resolved (MR 1.15(e))

Distribute all portions of interest NOT in dispute

Prohibition on payment of: contingent fees for experts, fees for fact witnesses (MR 3.4(b),
comment 3)

3. Trust Accounts and Client Property

(i) Duty not to commingle - must keep money and property belonging to clients and 3Ps separate from their personal and firm funds.

Establish Escrow or trust accounts instead, separate from general accounts.

Can combine funds for multiple clients and 3Ps into funds, so long as records ID each's share

(ii) Duty to maintain records

(iii) Duty to notify promptly clients or 3Ps when receiving money or peropty in which they have an interest

(iv) Duty to deliver promptly to clients or 3Ps any funds or other property in which they have an interest

On request, (v) duty to render a full accounting regarding such money and property

4. Advance Payments

General retainers: create ACP relationship, subject to judicial scrutiny for reasonableness

Engagement retainer: earned when received, should be deposited in firm's operating account rather than trust account

Special retainer (advance against fees or security retainer): advance payment against work lawyers will do for client in the future

Deposited in trust account and transferred to operating account as work is done

*If lawyer doesn't make clear from retainer, courts construe ambiguity against drafting lawyer (will assume it's a special rather than general retainer).
o Expense Deposit: amount paid by client to lawyer to be applied against future expenses

Goes into trust account to be withdrawn as expenses are incurred

Nonrefundable special retainer: held as unethical by most courts (likely not OK in criminal, and sometimes in civil)

Alternative provision: "Client agrees to pay the firm $x. Client agrees that y% of the fee is immediately due and payable for the lawyer's services in conducting initial interview,
undertaking preliminary investigation and evaluation, and deciding to take the case. The balance of the fee will become due when any of the following occur: (1) dismissal of the case against the Client, (2) acceptance by the court of a plea agreement, (3) mistrial, or (4) entry of judgment by the trial court.
o Flat fees:

Courts divided on whether to deposit in trust or operating account.

Safest court is to deposit in trust but with provision allowing withdrawal in various stages.

In some state, statutes allow nonrefundable flat fees.

5. NY Rules Regarding Fees (NYRPC 1.5) 1.5d3 prohibits fraudulent billing (client is charged more than actual number of hours worked or in excess of actual cost)
o 1.5d4 prohibits nonrefundable retainer fees

NY Opinions allow lawyers to deposit advance payment retainers in their operating accounts.
o 1.5d5: Additional Prohibitions for fees in Domestic Matters

Must have written fee agreement

No security interest, confession of judgment, or other lien without disclosure in written retainer agreement nd tribunal approval

No foreclosure on primary residence where spouse who consents is title holder and is primary resident

At initial conference before signing retainer agreement, in a domestic matter lawyer must give PC a Statement of Client's Rights and Responsibilities

Cmt 6 states that the prohibition on contingent fees in domestic matters includes actions to enforce or collect financial judgments in domestic cases

NY Court Rules require every lawyer with an office located in NY to post in that office, in a manner visible to clients of the lawyer, a State of Client's Rights. NYCRR 1210.1

Where applicable, attorney must resolve fee disputes pursuant to fee arbitration established in NY

Restrictions on fee division with other lawyers do not apply to payments to former lawyer pursuant to separation or retirement agreement (1.5h)

NYRPC 1.15 much more detailed than ABA Rule and includes record keeping requirements
(NYRPC 1.15d)

6. Security for Nonpayment of Fees

Security agreements scrutinized under fidicuary principles or fairness and full disclosure

Can obtain K security interest in client's property if comply with Rule 1.8a (NOT if property is subject of litigation 1.8i)

3 Requirements of Rule 1.8a: Lawyers who enter into business agreements with clients:

Terms must be fair and reasonable to client and fully disclosed in writing that can reasonably be understood

Advise client in writing of desirability of seeking independent legal advice about transaction, and client must have reasonable opportunity to seek such advice

Client must give informed consent in writing

7. Limitations on Acquiring an Interest in Litigation

Rule 1.8i prohibits lawyer from acquiring proprietary interest in COA or subject matter of litigation with the following exceptions:

Lawyer's liens for fees and expenses

Reasonable contingent fee

Rule 1.8d prior to the conclusion of a matter, lawyer CANNOT make or negotiate an agreement giving lawyer literary or media rights based in substantial part on the subject matter of the litigation.
o-

Confidentiality

1. Scope of Duty

MR 1.6a: Lawyer shall no reveal info "relating to representation of client" unless (i) informed consent or implied authorization or (ii) 1.6b exception.

McClure: Lawyer turned over map to authorities of bodies client killed; client claimed IAC, no informed consent.

Implied consent closely related to implied authorization (ex. filing lawsuit means having to disclose information in complaint)

Exists even if ACP relationship not formed (MR 1.8)

Protection extends to former clients as well.
o MR 1.6b Exceptions to Duty of Confidentiality

(i) prevent reasonably certain death or substantial bodily injury

(ii) prevent client from committing crime or fraud that is reasonably certain to result in substantial injury to financial or property interests of another and in which client uses lawyer's services

(iii) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services

(iv) compliance advice

(v) claim or defense on behalf of lawyer

6 (vi) to comply with other law or court order

*Meaning of "Required by law" (MR 1.6b6)
o Court order, rule or statute specifically aimed at lawyer or lawyers in general

Court order requiring attorney to reveal location of body

Statute (ex. Child abuse reporting statute in some states)
o Admin rule (ex. SOX)
o NY Confidentiality

NY Scope of Confidentiality (Narrowed than MR)

Covers Confidential Information: protected by ACP, likely to be embarrassing or detrimental to client if exposed, information requested to be kept private by client

Does NOT cover: legal knowledge or research and information that is generally known in local community or in trade, field, profession

Exceptions to NY Rule:

To prevent client from committing a crime

NOT include ABA financial fraud exceptions, but replaces "withdrawal of opinion"
exception when based on materially inaccurate information or being used to further a crime and lawyer reasonably believes is being reasonably relied on by 3P.
o General Hypo Notes (Problem 3-1)

Exceptions do not allow you to reveal to authorities that client has murdered.

Ryder: attorney hiding money + weapon is wrongful.

Obtaining client's release on bail is not wrongful

Can move to withdraw (1.16b4) if lawyer thinks wrongful to secure bail so client can hide body/weapon.

Tarasoff liability: client may threaten to commit crime; consider (i) risk of action, (ii)
informing guards

2. Exceptions

1. Duty wrt Tangible Criminal Material (MR 1.2d and 8.4b)

Lawyer must turn over to authorities even if not subpoenas after lawyer has had reasonable time to investigate (Rest. 119)

Olwell (knife), Morell (kidnapping plan), Carlin (tape recording), Stenhach (rifle stock)

Ethics opinions indicates this applies to emails/electronic stuff (Prof. Crystall disagrees)

Issue: What if the Lawyer has knowledge but not possession of the criminal material?

A. Confidentiality - There is no duty to disclose (no 1.6 exceptions apply)
o 1.6b23 does not apply because lawyer's services not involved

1.6b6 does not apply because no specific law or direct order

B. Counseling -- 3 models: (i) law compliance, (ii) non-involvement, (iii) strategic
(counsel best strategy)
o
Shall not counsel/assist in crime or fraud BUT may discuss legal consequences of proposed course of conduct (MR 1.2d)

Do nothing

Can discuss legal consequences of moving criminal material
(cannot assist Ryder)

Advise client to deliver material to lawyer

Advantages: Can create ACP relationship (not trace to client, control way to deliver to authorities)

How to deliver to authorities (anonymously, hire attorney)
o 2. False Testimony Exception (functional additional exception to confidentiality)

Candor to Tribunal (MR 3.3, includes depositions)

Most 3.3 rules are designed to prevent harm to tribunal and are mandatory, NOT
discretionary (3.3b - mandatory, 3.3a3 - discretionary)

Shall not offer evidence if Lawyer knows it to be false (MR 3.3a3)
o Actual knowledge

If Lawyer comes to know of falsity of offered evidence, Lawyer shall take reasonable remedial measures, including potentially disclosing to tribunal
(MR 3.3b)
7

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