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Professional Responsibility Outline

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Professional Responsibility
Defining the Attorney-Client Relationship
I. What should be the nature of the relationship?
A. Attorneys are hired to work on behalf of clients, but who should be in charge: attorney or client?
B. Rules are designed so that attorneys do not take advantage of clients
II. In-class practice problem (divorce proceeding and retainer fee)
A. File papers: did the client think that she hired you to file papers
B. Don't file papers: safeguard your reputation by not filing frivolous arguments
C. Actual occurrence: lawyer called client's uncle in Africa who was an expert in witchcraft,
then lawyer advised against motion because husband was a supervisor at DYFS and the motion would adversely affect her
D. Bottom line: communication and do a little bit of work before committing to the case (i.e., I'll look into it, but I don't guarantee that I'll take the case or file the motion, etc.)
III. Origin of PR rules
A. Constitution: 1st Amendment (solicitation of business), 6th Amendment (ineffective counsel),
Privileges and Immunities Clause
B. Statutes
C. Case law
D. Code of Ethics - ABA and state rules
IV. What makes the practice of law a "profession"?
A. Requires substantial intellectual training
B. Clients must trust members because they cannot adequately evaluate the quality of service
C. Subordinates self-interest and private gain to the interest of clients and the public good
D. Occupation is self-regulating
V. Why do we define the attorney-client relationship?
A. Need to know:

1. Whether person is a client

2. Conflicts of interest
B. Duties owed

1. Competence

2. Confidentiality

3. Loyalty

4. Diligence

5. Keep client informed

6. Tell client when relationship has terminated
C. Definition

1. Person manifests to an attorney the intent that the attorney provide legal services and the attorney fails to manifest a lack of consent and the attorney knows (or should know) that the person reasonably relies on the attorney to provide services a. Person = person, corporation, parent/child, etc.
b. Fails = onus on attorney to say no c. Reasonably relies = subjective and objective
D. Confidentiality

1. PEREZ v. KIRK & CARRIGAN (1991) [p. 32]
a. Facts: Driver of a truck gave a statement to the attorneys for Coca Cola,
whom he believed was also his attorneys, when they came and visited him in

1 Professional Responsibility the hospital after the accident. They also told him everything that he told them would be confidential. Those attorneys handed over the statement to the District Attorney's office. DA was able to get an indictment of driver because of this statement. Perez bought an action for breach of fiduciary duty of good faith and fair dealing.
b. Holding: Attorney-client privilege did not attach, but the fiduciary duty of confidentiality did attach.
VI. Exceptions to the Privilege or the Ethical Duty
A. Self-defense and legal claims
B. Collection of fees
C. Waiver
D. Crime-fraud exception
E. Future crimes or frauds
F. Noisy withdrawal
G. Identity and fees
VII. Representing Corporations
A. Three privilege tests

1. "Control group" test

2. "Subject matter" / UPJOHN test a. Looks at the nature and purpose of the information imparted to the lawyer

3. SAMARITAN FOUNDATION v. GOODFARB (1993) [p. 43]
a. Holding: Modified subject matter test. The employee must have acted in a way that (potentially) caused liability for employer.
B. Agency Relationship

1. TAYLOR v. ILLINOIS (1988) [p. 69] : upheld the constitutionality of the exclusion notwithstanding that the client may not have participated in or been aware of the lawyer's misconduct a. Facts: Taylor's lawyer intentionally failed to observe a state procedural rule requiring notice of a criminal defendant's witnesses. As a result, the client was not allowed to call a witness; client lost b. Holding: client is liable for attorney's work on his behalf.
c. Dissent: there are differences between tactical errors and attorney misconduct

2. S.E.C. v. MCNULTY (1998) [p. 70]: Client is liable for attorney's actions a. Facts: Client unsuccessfully sought to overturn ruling by arguing that he diligently tried to monitor the lawyer's performance b. Holding: Client is liable for attorney's actions.
c. Notes: Case makes the point that the litigation system would not work if clients could freely escape the consequences of a lawyer's decisions.
Though, the case does seem to establish a loophole for clients who want to avoid their lawyer's failures and for the proposition that the test will vary depending on the circumstances.
C. Fiduciary Relationship

1. NICHOLS v. KELLER (1993) [p. 79]
a. Facts: Former client sued attorney because he failed to advise him that in addition to his workers compensation claim, he might also have a tort action.

2 Professional Responsibility b. Holding: The client reasonably believed that the lawyer he consulted would advise him on all available remedies, however, the lawyer saw himself as just a worker's comp specialist.

3 Professional Responsibility
Autonomy of Attorneys and Clients;
Protecting the Attorney-Client Relationship Against Invasion
I. Entity clients (Rule 1.13) - Sample Problem: "Slip and Fall" [p. 39]
A. Three privilege tests

1. "Control group" test a. Privilege protects only communications with those who actually run the company

2. "Subject matter" / UPJOHN test a. Communications concern matters within the scope of the employee's corporate duties

3. SAMARITAN test a. Modified subject matter test. The employee must have acted in a way that potentially caused liability for employer.
Is there privilege?

Max

Tim
Tina
Rex
Delia
Ed
Angie

Control Group
(less)
Probably not

UPJOHN
(most)
Yes

No
No
No
No
No because he isn't an employee
No

Yes
Yes
No
No
No because he isn't an employee
No

SAMARITAN
(more)
Yes - but could be no because he didn't wax the floor
OR
It depends on whether the policy of waxing the floor led to the slip and fall
Yes
No
No
No
No because he isn't an employee
No

II. Other Rules
A. Rule 1.13: Organization as Client

1. "See something, say something"

2. As long as the conflict of interest rules are not violated, you may be able to represent the company and individual employees
B. Rule 1.16: Declining or Terminating Representation

1. You must withdraw if a. You are physically or mentally unable to represent your client b. Your client fires you

2. You may withdraw if a. The client engages in criminal or fraudulent activity b. The client is using your services to commit a crime or fraud c. The client doesn't pay d. The client insists upon an action the lawyer considers to be repugnant e. The representation results in an unreasonable financial burden on the lawyer or the client has made it "unreasonably difficult"

4 Professional Responsibility

3. If you withdraw, you must give the client notice to find another attorney and return any advanced payment (for work not done)
C. Rule 3.1: Meritorious Claims and Contentions

1. Don't bring frivolous claims

D. Rule 3.4: Fairness to Opposing Party and Counsel

1. A lawyer shall not a. obstruct another party's access to evidence or alter/destroy/conceal a document b. falsify evidence or assist a witness to testify falsely
E. Rule 4.2: No contact rule

1. "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."
III. Attorney v. Client: Who Has the Ultimate Decision?
Attorney
Strategy
Which arguments to make
Stipulate to easily provable facts

Client
Settle
Take a plea offer
Waive jury trial
Testify
Appeal

A. Autonomy of Attorneys and Clients

1. The lawyer's autonomy a. JONES v. BARNES (1983) [p. 89]

i. Facts: Melinger was assigned to represent "Froggy" Barnes. Barnes sent Melinger a list of claims that he wanted raised on appeal and included a copy of his pro se brief. Melinger wrote back and said that some of his claims would not aid in obtaining a new trial and could not be raised on appeal because they were not based on evidence in the record. Melinger enclosed a copy of the respondent's pro se briefs. During oral argument, however, he only argued the points he briefed.

ii. Holding: Counsel does not have to raise every non-frivolous issue requested by the client if counsel, as a matter of professional judgment, decides not to pursue those points iii.
Notes: This case only happened because the lawyer was assigned to the client. Someone who could afford a lawyer would have fired him if he wasn't satisfied with the decisions. Paying gives you a level of control that not paying doesn't.

iv. Notes: It's very important that people trust the courts and trust police officers. Otherwise, people will take the law into their own hands.

2. The client's autonomy a. OLFE v. GORDON (1980) [p. 97]

5 Professional Responsibility i.

Facts: Olfe hired Gordon to handle the sale of her property and instructed him not to allow for a second mortgage. Gordon allowed for a second mortgage without consulting Olfe. After the sale, the buyer defaulted on the first mortgage and Olfe lost $25,000.

ii. Holding: Attorney must do as the clients instructs.

iii. Notes: Differences between BARNES and this case: Barnes was dictating means, not ends. Olfe was dictating ends, not means.
b. Sample Problem: "Accept the Offer" [p. 96]

i. This is a settlement, so the client is the ultimate decider.
IV. Protecting the Attorney-Client Relationship Against Invasion
A. Communicating with another lawyer's client

1. Rule 4.2: No Contact Rule a. Client cannot waive - attorney must waive, with the exception of the 6th
Amendment.

2. Civil matters a. NIESIG v. TEAM I (1990) [p. 111]

i. Facts: Personal injury plaintiff wanted to interview defendant corporation's employees.

ii. Issue: What employees of the corporation should be considered parties for the purposes of the PRC?

iii. Holding: Court settles on a test that defines "party" to include (1)
corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation or (2) imputed to the corporation for purposes of its liability or (3) employees implementing the advice of counsel. All other employees may be interviewed informally.

iv. Notes: The rule only applies to current employees, not former ones

3. Criminal matters a. UNITED STATES v. HAMMAD (1990) [p. 123]

i. Facts: Medicaid fraud concerning orthopedic shoes.

ii. Holding: Prosecutors may use informants to meet with subjects of criminal investigations, even if they are known to have counsel, in pre-indictment noncustodial situations.

4. Improper or accidental acquisition of confidential information a. RICO v. MITSUBISHI MOTORS CORP. (2007) [p. 131]

i. Facts: A defense lawyer's confidential notes found their way into the lawyer's file during a deposition. Plaintiff's counsel quickly realized that he had it by mistakes and that it was not meant for him.
Still, he read it, showed it to his experts, and used it during the deposition of one of his experts. Knowingly exploited the documents. Plaintiff's counsel was disqualified and so were his expert. This was necessary to remove the "taint" of the unethical conduct ii.
Holding: Counsel's duty of knowing and inadvertent receipt of such material is to cease reading it and to notify the opposing counsel b. NJ Inadvertent Disclosure rule i.
You shouldn't look at the document more than needed to determine whether it was inadvertently disclosed… and then return the document.

6 Professional Responsibility

Lawyers, Money, and the Ethics of Legal Fees
I. Introduction
A. Rule 1.5

1. (a) Reasonableness a. "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.

2. (b) Preferred written communication a. "The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client,
preferably in writing, before or within a reasonable time after commencing the representation…."

3. (c) Contingent fee a. "A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated."

i. Not permitted in criminal or matrimonial cases.
1) Matrimonial: (1) the state has an interest in seeing as much money stay with the family as possible, (2) since the law empowers the judge to order a wealthier souse to pay the other spouse's counsel fees, the less wealthy spouse does not need a contingency fee to attract a lawyer, and (3) a contingent fee gives the lawyer a stake in the outcome that might lead to a course of action not in the client's best
Structured settlements.
interest.
Companies have you sign 2)
Criminal: (1) a contingency fee on acquittal could prompt over the structured a lawyer to encourage the client to reject a favorable plea settlement (e.g., $1 million)
bargain and go to trial in order to give the lawyer a better in exchange for X amount of fee,
and
(2) could entice the lawyer to behave improperly money (e.g., $50,000)
(introducing false evidence) so he gets a bigger fee instantly. In order to get ii.
Conflict of interest: attorney is more inclined to settle early since one of these settlements,
client gets more money if successful at trial.
you need to have the court iii.
If the client is unreasonable and doesn't want to settle: attorney can approve it.
terminate relationship and put a lien against the client.
1) New Jersey offer of judgment rule: fee-shifting.
b. Note: New Jersey requires fee to be in writing i.
"The basis of the rate shall be communicated in writing" unless you represent the client in a bunch of matters.

B. Types of fees

1. Flat fee

2. Hourly fee

3. Contingency fee

4. Performance fee (has a contingency component - "Pay me this much up front. If you win, give me X amount in addition.")

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