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Professional Responsibility UVA Law, Spring 2015Strategies o If there was a breach, or close to a breach, what could have been done to prevent?
o What other facts or laws do we need to know?
o Possible remedies?
o How has this rule evolved?
o What are the rule's purposes? How does it influence the profession as viewed from within and from outside?History and General Concepts o Four ways of viewing this class:
? Law Governing Lawyers: vocational view that we need separate rules for lawyers
? Law and Ethics of Lawyering: (1) regulation of the profession, and (2) ethics of the profession
? A moral obligation that emanates from being a lawyer
? Professional Responsibility: not about regulation/control of lawyers, but about a specialized duty
? Legal Ethics: not moral conduct, but a generic title for the class o Solicitors vs. Barristers: English Experience
? Solicitors provide legal guidance
? Barristers are trial lawyers
? Comes with more prestige, related to social status in england (treated like squires/esquires)
? Source of the officers of the court conception
? Couldn't sue for fees
? Duty first to tribunal/process, then to client
? Litigation as the core of the practice of law
? Source of protectionism, prestige and exclusivity of the profession--why we have bars
? US. Different types of lawyers - should the same rules apply?
? (1) Advocate
? (2) Legal advisor
? (3) Document Drafter
? (4) Patent practitioner
? Concept of unitary system: one bar, lawyer is sole job and there shouldn't be distinctions/divisions in the profession o U.S. Experience: Bar Movement and Lawyers Early On
? 1835 Alexis De Tocqueville observes that the real aristocrats in the US are lawyers, yet the system required them to earn their elite status based on skill and knowledge
? Bar Association Movement: Informal standards as well as court interventions were not seen as sufficient, this lead to the movement
? Idea was to join a prestigious bar association to clean up the image
? Alabama Code of Ethics (1887)
? ABA Canons of Ethics (1908) - tried to get all courts to accept it
? ABA Code of Professional Responsibility (1969)
? Still used by California
? ABA Model Rules of Professional Responsibility (1983)
? Adopted, with slight variations, by nearly all states Most bar standards were historically set by legislatures, but courts began to reclaim the power in the 1930s
? Today there is uncertainty as to who has the ultimate authority
? State v. Cannon (Wisconsin 1934)
? Holding: State Supreme Court, and not the legislature, has the power to sanction attorneys o Modern role of state bars Right and obligation to discipline its own membership Control punishment at all stages before final appeal, which goes to state supreme courts Bar integration: joining the state bar is mandatory upon admission to the bar
? Gives bars broad authority to discipline lawyers o Image of the Profession Profession polices itself to avoid further growth of negative public perceptions of lawyers Two major images and sources of legal ethics
? (1) Agency Model: Lawyers as highly skilled service providers who function in a market economy and within the adversary system
? Lawyering as agency and fiduciary duty
? Code of conduct thus reflects rules of improper behavior/agency law/duties
? Autonomy (see Rule 1.2)
? (2) Officer of the Court Model: Lawyers as professionals who have a duty to the profession and to the public - public trust
? Articulates the profession's image of itself
? Notion of the quasi public official in relation to the court
? Necessary because it's the law, as opposed to barbers or physicians
? Swearing of an oath upon admission to the bar
? High emphasis on image to maintain trust of clients/public
? Can be taken as paternalistic model as well
? Possible Conflict:
? Client Direction (see Rule 1.2):
? Agency Model: at discretion of client
? Officer of the Court Model: do what's best for your client, but not necessarily what they want (Brandeis likes this)
? Medical Profession has similar conflicts o Morality
???Possible to be disbarred for moral violations that have little to do with the practice of law
? Jurisdictional Elements o You can only be sanctioned by a bar you are a member of o Bars will sanction lawyers for violating the rules of other states when they practice in those other states o If you comply with the rules of the state you are practicing in (even if they don't match up with the rules of the state bar you're a member of), you're fine o In general, the more restrictive bar's rules apply
? Client-Lawyer Relationship o Rule 1.1 Competence Know your limits: may take on new practice areas, but may not go leaps and bounds beyond your level of experience and qualification o Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Blanton v. Womancare (Cal. 1985) (p. 44) - Agency Model
? Facts: attorney gives up right to trial by jury, chance to pick arbitrator (agreed to arbitrator who was defense attorney), and acquiesces to low cap on recovery all w/o client's permission
? Rule: Malpractice: lawyer was both incompetent and made key decisions about representation without consulting the client.
? Policy: defense attorney did nothing wrong - he could have asked the lawyer to seek agreement from client, but no duty to do so
? Policy: can sue to reopen case, or for malpractice
? Proper case to vacate arbitration The Holland Case (p. 50) Duty to the Court Model
? Facts: client found guilty of murder, wanted attorney to push for death penalty because life w/o smoking was not worth living
? Client bummed a ride, then forces to drive at gunpoint, driver tried to wrestle gun from Holland, and Holland shoots dead
? Ruling: disqualified the lawyer and appointed one who would
? Lawyers owe greater duty to the bar (duty to court sets boundaries for duty to client)
? Constitutional element: 6th and 8th amendments require appeals before execution; client does not have the power to waive these
? Reasoning: lawyer must ensure that no errors in sentencing are made. Duty is as much to the integrity of the court system as it is to his client.
? Lawyer could have argued diminished capacity (Rule 1.14) and then gone against client's desire Rule: ultimate decision on substantive matters rests with the client, but no need to run all procedural matters by the client
? Policy: Trial would never end if client had to sign off on every procedure, so lawyer assumes responsibility for these Informed consent is important for client to make decisions (see also Rule
???Contemplated Crimes: lawyer may not participate in a criminal scheme but may discuss the legal ramifications of a client's proposed course of action, and make an effort to discourage him from committing a crime. o Rule 1.3 Diligence o Rule 1.4 Communications "Obviously you don't need to respond to client's 6 calls a day"
#1 source of complaints filed with bar o Rule 1.5 Fees History:
? Switched from task or daily billing to hourly billing in 1960s/1970s, making legal field more profitable, although with some double billing consequences (can't bill twice for hour worked - two hours to file two proceedings can only be billed once; flight doing work cannot bill for travel to one client and for work to another client)
? Statutes originally capped fees, then went to fee schedule system with minimum fees to keep crappy lawyers from undercutting market and protect against cut-rate lawyers. Now fees are market driven.
? Contingency fees:
? Common law crimes for lawyers
? Champerty: stirring up litigation
? Maintenance: stirring up litigation while owning a share in the recovery
? No contingency fees in criminal or family law cases
? British: discouraged contingency fee because thought it would discourage settlements and encourage lawyers to go for big verdict even when contrary to client's interest
? American: loser pays. This allows lawyers to take cases from poor clients because they will get paid if win. Lawyers have monopoly over legal representation, and set fees based on skills, length of and sensitivity to time, geography, issue, contingency, etc. (pure business decision)
? Fees limited to reasonable given these circumstances
? Contingency fees allowed, but with exceptions
? Must be in writing signed by client
? Lawyer can pay court costs and necessary expenses of litigation going along and if wins takes out of client's share, and if loses then can require client to pay (usually won't so tax deducted as business losses) Committee on Legal Ethics of the West Virginia State Bar v. Gallaher
? Facts: attorney settlement of motor vehicle accident case quickly with 50% contingency fee; range of fees usually 40% for trial and 30% if settled
? Rule: this fee was excessive because client wasn't made whole
? May be different if upfront was 50%
? Policy: Hylton disagrees because despite juries usually award judgments with knowledge that lawyer will take a cut, there are plenty of cases where fair judgment rendered and p not made whole because attorney takes cut of fair judgment
o Rule 1.6 Confidentiality of Information Confidentiality vs. Attorney Client Privilege
? Confidentiality deals with the duty the lawyer owes to the system as a whole
? Attorney-Client privilege deals with rules of evidence Confidentiality operates in two ways
? Professional duty - attorney can't say - duty of confidentiality
? Evidentiary rule - cannot be entered into evidence - attorney client privilege Rules of confidentiality vary by jurisdiction (not necessarily overlapping across issue)
? Prevent death or serious bodily injury: 38 (and ABA) may reveal, 1 state should reveal, 12 require reveal, none prohibit
? Other (non-bodily) crime: 36 (and ABA) may reveal, 6 require reveal, 9 prohibit reveal
? Prevent non-criminal fraud: 32 states must not; 16 (and ABA) states may; 3 must reveal
? ABA doesn't discriminate between criminal and noncriminal fraud
? Rectify past crime or fraud where lawyer services used: 26 must not, 24 may, 1 must reveal
? Fraud on the court: Every state except WA and DC allows.
? Results hinge on "cannot," "may"/"encourage," or "must" disclose some also say "promptly" (generally VA) Theory
? Adversarial system: you will have the best administration of justice when each side makes their strongest case through an attorney
? Requires lawyer to know everything about client's case
? Trust: clients must be able to trust lawyer to tell them everything
? How can you defend a guilty person? They must have representation so in order for it to work properly you must be able to keep things secret to get their trust
? Avoids people's distaste for lawyers because they have to report (like in Soviet system) Confidentiality:
? Exceptions: generally to (1) protect individuals or public, or (2) facilitate practice of law
? If not any other exception, then informed consent of the client
? Under court order (always trumps rules of ethics)
? To prevent reasonably certain death or serious bodily harm
? May disclose under MR
? State to state this varies from may to must disclose
? To prevent a crime reasonably certain to result
? Varies state to state may to must disclose
? Crimes that involve the lawyer's services
? Ongoing crimes for which lawyer can mitigate damage
To another lawyer or member of the state bar, in the context of discussing a confidentiality issue
? To protect your own self-interest
? Defending a malpractice suit
? Defending criminal charges (e.g. if the client tells you he committed a murder and then you are accused of it)
? If you are suing to get fees - you can bring things as evidence you wouldn't otherwise be able to share
? Lawsuit for fees is different than a case involving your client's rights
? Also applies to firms splitting Withdrawal: is there a signal when you withdraw from a case?
Can you repudiate when you write an opinion for your client?
? Some say you should not do a noisy withdrawal, but today withdrawal is not limited by confidentiality, nor is there any limitation on noisy withdrawal Spaulding v. Zimmerman (Minn. 1962) (p. 60)
? Facts: spaulding injured, sues Zimmerman; doctors retained by p to examine Spaulding, misses aneurism that could be deadly; Attorney for Zimmerman's Insurance examines and discovers it but didn't tell Zimmerman or Spaulding; case settled; Spaulding later finds during army reserves physical and ges treatment; Spaulding not happy that case settled for such a small amount.
? Two issues:
? (1) Can you reopen a settlement under MN law?
? (2) Did the defense lawyer do anything wrong such that malpractice is warranted
? Rule: (1) can reopen the case because she may not have agreed to this settlement on these new facts; (2) [?] lawyer didn't do anything wrong because only "may" "reveal information to prevent reasonably certain death or serious bodily injury" (1.6(b)(1)) - thus no duty to disclose the information
? Policy: could sue doctors for failing to find aneurism, could sue Spaulding's attorney for failing to discover other side's medical reports
? Policy: is confidentiality so important that you can let someone die? Important to incentivize adversarial system discovery. People v. Belge (Onondaga Co. Ct. 1975) (p. 65)
? Facts: person on trial for murder, indicated to attorney that there may be more bodies and location of burial; concern's of client's competence, at trial reveal body information for insanity defense
? Issue: can the attorney be charged with failing to provide for proper burial?
? Ruling: no, because??
Defendant constitutionally protected from selfincrimination, and thus attorney is compelled not to disclose so as to break confidentiality
? (There was no threat of future crime or bodily harm)
? Policy: attorneys need trust to be able to get information from clients confidentially in order to best perform their role in adversarial system Attorney-Client Privilege (evidence)
? State v. Hansen (Wash. 1993) (p. 87)
? Facts: client threatened to kill prosecutor and judge (believed protected by confidentiality and privilege); lawyer told judge; client arrested for intimidating judge
? Rule: (1) when there is a duty to disclose, it may be admitted as evidence and privilege doesn't apply; (2) there is duty to warn of threats to harm members of the judiciary communicated by clients or third parties
? Did not hinge on confidentiality because even when it exists it does not apply to furtherance of crimes
? Upjohn Co. v. US (1981) (p. 90)
? Facts: Upjohn got business by bribing foreign governments; corporate attorneys interview; IRS and wants to know for tax purposes
? Possible Rules: who is the client?
? Control Group Test: limits privilege to board of directors, CEOs, and those controlling the corp.
? Subject Matter Test: extends "client" to anybody in the company working on the matter
? Rule: subject matter test rules because we want people to be able to communicate with in house lawyers
? Policy: IRS could have gotten privileged info through other process like discovery, just can't subpoena the lawyer or ask for communications between lawyer and client, and can't get lawyer to testify o Rule 1.7 Conflict of Interest: Current Clients Conflicts of interest restrictions can usually be waived via informed consent from each party in the conflict (can't be waived when two or more parties have claim against each other) Basic principle: cannot represent both parties if there is a current conflict
? Issues of confusion or trust?
? Family issues Key to C o I is anticipating future problems Hotz v. Minyard (1991) (p. 97)
? Facts: lawyer had done work for several family members; drafted a will for the dad which got showed to the entire family; then dad asked for secret will that cut daughter out; daughter later asked to see the will
? Rule: Burden on lawyer to anticipate COIs before they arise and take preemptive steps. Lawyers should not write wills for one family member when the beneficiaries include his other clients.???
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