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FREE Law School Outlines List by Subject Professional Responsibility Professional Responsibility 2 (Michigan) | Professional Responsibility 2 (Michigan) |
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School: unknown
Year: 2004
Professor: unknown
Course Outline provided by Legalnut.com
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Professional Responsibility
Tape 1 of 2 -
Exam Based on: American Bar Association Model Code of PR = Code ABA Model Rule of Professional Conduct = Model Rules Judicial Code
If a question say must, should, may – do something, might be same under both model rule and code but may approach differently
Exam is about 2 hours and 50 questions long – 2 1/2 minutes/question Wrong answer not counted against, so answer all questions Usually four possible answers – may ask to choose more than on question Sometimes ask what is the worst answer
Ways questions will be asked: You will be asked sometimes, must an attorney do something or is he subject to discipline – this asks is attorney subject to discipline under code or model rules. -
2nd question may ask should an attorney do something, this asks does the conduct conforms to both the code and rules
3rd may or proper will be used – whether conduct is professionally appropriate is it not inconsistent with the above, code, rules, and judicial code – this can be difficult because can be counter intuitive, and no common sense. Example: suppose work for client at 100/hour, earns $100,000 and then client fires attorney for no cause and demands refund, if refuses attorney not subject to any disciplinary action. Is it proper for attorney to return money? If question said should, or must the answer is no, there is nothing compelling the attorney to do so, but the question asks is it proper, yes, in fact may pay the client another $100,000 for the pleasure of representing him. Point is in real world probably will not return fee, but is it proper to, yes.
4th question says, is attorney subject to liability for malpractice – question asks is attorney liable for damages resulting from attorney action
Every state is either and integrated bar or non-integrated bar, if state integrated bar state means bar and courts are integrated, meaning bar is not voluntary and want to practice law in that state must be a member of that bar, the opposite is true of non-integrated bar states, New York is a non-integrated state but there are many voluntary bars in the state – Illinois and Indiana are not either integrated or non-integrated they have a hybrid registration system but regardless bar dues pay for discipline proceedings not the public.
American Bar Association is completely voluntary, not a regulatory body, publishes the rules but does not punish
Disciplinary rules are black letter and put forth mandatory conduct, what a lawyer what a lawyer must or must not do
Criminal codes only tell you what not to do, disciplinary rules you do not go to jail but get sanctioned, money and so forth
Ethical considerations – these are non-mandatory rules or statements that tell a lawyer what should or should not do, if violate not subject to discipline, but are subject to discipline is violate the disciplinary rules – this has been asked before remember this and be clear
Model rules divided into two parts – 1 part describes prohibited conduct that if violate will be disciplined, also contain preamble and commentary but do not subject you to discipline and are considered asp-rational
Admission to Practice – The license to practice law is a property right and has been held so, as with any other property right you cannot deny admission to practice of law based on race and so forth, and as with any there property right you cannot deny ability to obtain it based on things that violate constitutional rights, race, religion and so forth
In order to deny a person a license to practice, there must be a rational connection between reason for denial and practice of law Moral fitness is a reasonable standard to apply to deny license to practice law
Therefore bar applicant must comply with committee to on morals – broad latitude is given to this broad
What you have to do if character committee asked about character of a person trying to get into bar after you have been admitted – shows up in this hypothetical – Assume you are a new lawyer with firm of xyz and senior partner comes in with affidavit speaking to good character of his daughter to admit her to bar, you have never met is daughter, you have been at firm at short time, and she in school in another part of country, you may not sign this affidavit, they may fire you but you cannot sign, and attest to good character to a person you have met. Similarly if go to lunch with her one day or so, this does not give you must more than a good idea of table manners.
Applicant to bar cannot be denied admission to practice law because: You are not a U.S. citizen You are not a resident of state you have applied to bar in You cannot be denied because you are not living in the state you applied in A state may not require a lawyer applying to take exam if they do not require lawyers living in state to take exam
A state may require things of you: Graduate from ABA accredit school and pass a bar exam
Special rules: You do not give up your 5th amendment right by becoming an applicant to the bar, but however if going to invoke or use 5th amendment right in answering question of character committee and you must do so openly, you must say I invoke 5th amendment right, cannot do it secretly or ambiguously
You may not further the application of a person you do not believe fit for the bar, you may not make a false statement about an applicant to bar, if know person and do not thing good person for bar may not say they are
You may not make any false statements about a qualifications or integrity of an candidate for election to be a judge or any statement about judge in circumstances you have a reckless disregard for the truth of statement you are making – has been on exam – In appellate brief or article you may state a judge has failed to follow established law or misunderstood testimony, you may not say judge has IQ of a penguin or has not read anything since 10 Fed 2nd
Lawyer Discipline: Very little chance will see something on test on attorney discipline, but maybe
Lawyer discipline takes away your property right, you cannot do this without due process, but a lawyer can be disciplined if lawyer violated disciplinary rules of code, assuming that is rule in your state, or model rules if that standard in state, or lawyer committed crime involving dishonesty or moral turpitude – in addition if lawyer committed (and convicted, not just charged) tortious conduct involving fraud or dishonesty can also be disciplined
You are a lawyer 24 hours a day, 7 days a week including holidays – ALL THE TIME
Lawyer x hard day at office, and before going home, stops at a hotel to attend cocktail party in honor of that areas new United Way president – there after having drank too much lawyer gets into car to go home and because lawyer is drunk runs a red and hits a pedestrian, an ordinary person, in most states that is vehicular homicide – lawyer could, not for sure, be disciplined even though no connection to practice of law
Another example, has been on exam – New Jersey Supreme court held: a lawyer’s conviction for simple assault which arose in domestic dispute (wife beater) warranted professional discipline, in this case a reprimand, but none the less was disciplined Message in above, does not have to be a connection to practice of law and can still be disciplined, but this does not mean a lawyer can be punished for any negligent conduct
Finally a lawyer can lose license only in that state(s) in which lawyer is licensed to practice law – a lawyer can be punished in those states (which is licensed) for an act that was committed outside those states – Example – Mass. Lawyer trying a case in California – and you commit a violation of rules Mass. Can discipline you for that act even though happened outside licensing state
You are not required to know forms of discipline but: (in most states) Forms of discipline: Disbarment Suspension Public or Private Reprimand Admonition
Disbarment – permanent loss of license, but sometimes can get restored after a period of time Suspension – loss of license period of time Reprimand – no loss of license Admonition – most places not even considered punishment
You can be (will be on exam for sure) disciplined if you fail to report violations of ethical rules that come to your attention committed by lawyer or judge, two prongs here – 1. you must report the violation 2. then must be available to testify against them – so no such thing as a anonymous report because must testify to them
One exception where you may not report the violation – where learn of ethical violation as a result of privileged communication – this may happen where you represent another lawyer
Problem 1- Attorney A represent D in litigation concerning whether a will was properly signed by decedent who left large portion of estate to D. While interviewing one of people who witnessed signing the will, A is told by witness that B, attorney for witnesses, who is contesting the will offers witness $5,000 to testify that decedent did not sign will, second witness says same thing.
Unethical to - To pay a non-expert witness to testify even when testimony is accurate
A is wrong – first part is right, but A cannot tell B’s clients about the bribe, unethical to speak to opposing party represented by another attorney B is wrong – do not have to sue other attorney, just have to report C is correct – must report and A may tell OWN client about unethical behavior, does not have to but may do so – only correct because the word is may and not must D wrong – coercive and unethical
If A learned of the violation as part of privileged conversation then cannot report, so if A were representing B may not report
Hour 2 of tape 1: Information about legal services – Advertising
Many court including Supreme Court – subject to 1st and 14th amendment – what talking about here is commercial free speech to regulate need compelling state interest, good taste is not a compelling state interest –
No misleading statements
If lawyer has been appointed to public service, assuming this is a full time service, that lawyers name may not be included in name of law firm or even included on letterhead unless regularly engaged in practice of law
Members of state legislature not full time job – 90 or 120 days a year
Congress members – listed on letterheads of law firms or on firm names even though thousands of miles away for Washington D.C. – if they are regularly and actively engaged in practice of law may name on firm and letterhead, fact specific question on this
Disbarred lawyer must be removed from name of firm and letterhead Suspended lawyer may remain on the firm name and letterhead
A lawyer may be listed “of counsel” if a special relationship exists – if a lawyer is simply renting space does not qualify – must refer cases or discuss cases with law firm or law firm has to refer work to lawyer
Trade names in legal advertising – trade names cannot be mis-leadings – Best law firm in world, this is mis-leading – so name that includes a charitable name or name of political subdivision may not be used as a trade name – Legal Clinic of Baltimore of California state legal clinic may confuse people into thinking government connected with firm is mis-leading so may not be used – that is a political subdivision – Women’s legal clinic approved under circumstances where groups specialized in issues that are associated with women’s rights movements
Some states provide for specialization (MI does) – so if member of bar for period of time and pass exam may hold yourself out as a specialist – torts, workers compensation and so forth – you may hold yourself out as a specialist if your state allows for this and the Supreme court has held, if there is a national body which permits and has a test for specialization and you state reasonable adopts their rules may hold self out as a specialist – So generally get answer in question – you may hold yourself out as a specialist, if your state allows for it and you have passed the specialist exam - some firms try to get around this, in states that do not recognize specialist by saying their practice is limited to certain areas, torts, personal injury – these are permitted if true and provided that the limitation is to area of law that is generally recognized as a specialty – you may say practice is limited to legal problems of rich not a legal specialty
Material misrepresentations are closely policed – something omitted that should have included to make ad not misrepresentative or misleading can result in disciplinary action – famous case – that has been asked – attorney advertised will take cases on contingency fee basis and “no legal fees were owed” unless attorney was successful – the US Supreme court said that the state could regulate that to extent could require to disclose whether client responsible for cost, and clients always responsible for costs even in contingent fee case
Looking at where can advertise, form and place, any place, print, TV, billboards, sky writing if advertise in print media or television a record, copy or recording or advertisement must be retained for two years after showing along with a record to the best extent you know it of where and when it appeared that advertisement must identify a lawyer who is at least in the firm and responsible for the ad - the ad must be reviewed by the lawyer, you cannot say the advertising firm did the ad and you knew nothing about it
No bait and switch – if advertise a simply divorce cost $200 so that better be what it cost and cannot charge $1000
A lawyer may not pay another person for recommendation of lawyer’s services other than what you pay the advertising firm or what pay for a non-profit bar related lawyer referral services – a lawyer may not pay a runner or solicitor that goes out to try and find clients
Free legal services – A lawyer may educate lay people about legal services but a lawyer may not, under any circumstances, volunteer legal advice to a client and then try lure client to lawyer and then try charge for it Example 1– you can be a “sue ‘em bird” you can walk down the street and every time something happens that is wrong, you can yell “sue ‘em, sue ‘em” , this if offering free legal advice, if this happens you cannot there after represent the victim because you have offered free legal advise.
Example 2– Assume you are an expert in geriatric law, assume further invited to local geriatric home to give a seminar on geriatric law, assume you are doing this pro bono, this is permissible conduct and is encouraged, assume at end of talk residents start to ask you about own problems on Medicade, or social security or whatever – you can answer all the fact specific questions, but you must make very clear at some point you normally charge for this advice and if and will charge for legal services and if want you to represent you will charge them and some point the charges will begin – what trying to avoid here is you luring the client in by offering free legal advice – both code and model rules encourage free legal advice but not trying to lure people in on this basis
You may not pay public media people, or representative in exchange for publicity or a story about them or television radio or paper but lawyer is permitted to call press about yourself even if only purpose is to generate publicity about yourself
Solicitation that is one on one in person or by live telephone contact this is not commercial free speech and not protected by 1st amendment
Not allowed because this may put undue pressure on person – but there is an exception and that is if it is not for pecuniary gain – working for civil liberties union and have some people harmed may file on behalf for free
Some exceptions – may solicit in person a family member or a close personal friend, mother and so forth, you may solicit in person present clients – and former clients so long as you are aware of fact they are not represented by another attorney if they are may not solicit – if member is part of a pre-paid legal plan group may solicit plan member and solicit plan manager to get plan member as clients
Neither in person or live telephone contact – may solicit by mail or recorded phone, fax or telecopier who are known to be in need of particular legal services – go to bankruptcy court and find pro se one you may in fact write to or fax and solicit Supreme Court in June 1995 held – where a state prohibits lawyers from using targeted direct mail (mail sent to specific people know to be in need of legal services) or their families within 30 days following an accident such a regulation had a substantial state interest and was upheld constitutional – so if state say cannot solicit for 30 after accident cannot
Targeted newspaper ads also permitted, may target newspaper ad to plane crash victims, knowing they were in need of legal services
Problem 2: Upon graduation from law school attorney A worked for PWY law firm for several years, that firm almost exclusively represented plaintiffs in personal injury matters, after four years with firm A opened own law office, business was slow, he decided to advertise and consulted several advertising firms regarding proper advertising campaign with their designed following advertisement copy: which with A picture promptly displayed his on the side of city buses owned by municipality “have you or loved been injured in accident, have you considered your child’s bad grades in school are a result of complications at birth due to medical malpractice, you may need legal help to protect your rights, someone should sniff out facts of you case, call office of A your legal beagle.”
Is A subject to discipline as result of advertisement?
A incorrect nothing say have to disclose fee in ad
B incorrect whatever may thing about attorney who wants picture in advertisement not wrong C incorrect not permitted to state anything so long as in bad taste, many things may not state, comparison, statistic, non-verifiable statements, endorsements without consent of client D is correct nothing mis-leading
A has a first amendment write to advertise like this
Competence: Model rules require that she only represent client she is competent to do so
So what does this mean – 1st admitted to practice assumed competent to represent a client in a particular field of law who are generalist, not specialist, would take this type of case – meaning if most lawyers in your community would take this case you can take but be reasonable, medical cases usually require a specialist or trade treaty agreements
Now where an attorney is not competent to take a case may do so subject to making him or herself competent to do so – two way to do this
But if attorney discovers after accepting case decides incompetent to handle must withdraw subject to discipline
Two ways to become competent – you may associate with an attorney to do so, but may never ever, never associate with another attorney for any reason to make self competent or otherwise unless client consents and that consent is given prior to the consultation with other attorney
Anytime associate with another lawyer need advance prior condition
Second – in some circumstances an attorney may make self competent for 20 hours per day for 10 days and reading every horn book and treatise and everything else – some areas can do this others cannot, but may not bill for this time
Malpractice – A lawyer required to represent client competently – most complaints to bar is that lawyer not communicating enough – reasonable standard not four updates per day but must keep client informed
You violate ethical rules with respect to your professional discipline and duty when subject to certain violations of the code and they are when you commit an act willfully, habitually, or intentionally
Have to represent client zealously You commit legal malpractice when you make a mistake when conduct based on negligence subject to tort liability when not based on willful or intentional
Legal malpractice has three elements – Duty owed, based on attorney client contract or fiduciary duty A breach of that duty, the negligence Damages, which are proximity cause by breach of duty
Assume there are cross motions for summary judgment on the trial docket on Monday morning at 10 am in local jurisdiction in which you are representing a client in one of these cross motions, and you know about these cross motions, but you get up on Monday decide to go fishing instead of going to court. You have willfully ignored the duty to client and you are and ignored ethical standards and can be disciplined.
Now assume unaware of cross motions, not because you failed to enter in calendar but because for 10th time forgot about appearance because can’t organize. This is habitual conduct and subject to discipline
Now assume for first time or second missed this date by accident, this not subject to discipline, may or may not be malpractice, simple mistakes are not disciplined unless habitual
Are the above malpractice – suppose that other attorney fails to appeal, or court busy does not get to you, or court denies both motions so no damages caused so not malpractice probably, their can be malpractice and you still not be subject to discipline action or violation of ethical rules, and can be violations of model code without there being malpractice
Two different standards – for negligence or malpractice we look to see if damages proximately caused by the breach
For discipline – look to see if conduct is intentional, willful or habitual
Can have one without the other – apply the standards
Emergency exception to willful duty standard – suppose attorney is going to court but on way child is injured and is called so instead goes to hospital, no disciplined or malpractice here
You may not limit liability for malpractice may not insert clause in retainer or contingency fee agreement which states that the client promises never to sue you for that matter – this at best is anticipatory breach in contract action and not enforceable and violation of both code and model rules
Constitutional standards in criminal cases, not that neither code or model rules are of greater force than the constitution – 6th amendment – may be a breach of – if not zealous or willful intention or habitual then subject to discipline if simple mistake then attorney maybe subject to malpractice
Example 3: Attorney Jones is a solo practitioner employs two law students from local each year to assist her in her practice. Because she relies heavily on research and writing skills of law students Jones requires each candidate to show transcript grades, each must have 4 semesters of law school and have a B average, one of her assistants, Sally, is B+ student who serves as editor on school civil rights law reporter. Jones is representing a turbine manufacture who is being sued in state court for negligent manufacture of turbine which exploded and injured killing power company employees on Jones advice turbine manufacturer deny the allegations Jones asked sally to research law on defect perhaps because distracted by school missed a case that held manufacture of electrical equipment, including turbines, only liable for gross negligence and not simple negligence because of inherently dangerous nature of electrical equipment and consequential assumption of risk – so Jones did not argue point and simple negligence submitted to jury and Jones lost, interrogatories to jury showed had Jones known and then argued case would have won, instead lost $5,000,000
Jones is
A not correct because act of negligence does not subject attorney to discipline, only willful habitual etc, nothing in facts to suggest this, if Sally many times sloppy then problem, then habitual B incorrect, lawyer can use law student research C is correct – duty owed, agent relationship D not correct
Legal fees and client funds – Model rules and code prohibit excessive fees – MPRE will frequently refer to fees that are over reaching, meaning excessive or a fee that would shock the conscious – if that kind of fee in question attorney is subject to question
A fee is never excessive if it is a fee charged in your community by other attorneys for that kind of service
Minimum fees are prohibited – cannot do a fee saying for housing closing minimum fee is $500, there are maximum fees, court of claims has max fee and probate many examples
Contingent fees are permitted (will be on test for sure) – fact and law specific issue – Never permitted in a criminal case, must charge by the hour or by the task
Bonus paid at end of criminal case is client found not guilty, is a contingent fee in a criminal case, so no bonus
Attorney charges 100/hour but aggress to accept 50,000 at end of case if innocent still a contingent fee
A criminal defense attorney may not accept as a fee, royalties for unpublished book by client or movie royalties to be made, impermissible because creates conflict of interest – client chainsaw murder person, so if client found not guilty no book so no fee, but if found guilty then, problem but if the book has been written already and what assigning royalties for book already written no problem because assigning a current asset, no problem
Contingent fees prohibited in domestic relations cases, divorce and so forth However – has been asked many times – if client comes to you an says I was divorced from spouse two years ago and spouse suppose to pay temporary alimony for 2 years at 1000/month, 24,000 total, and I have not gotten anything go sue him for 24,000 arrears, here can charge contingent fee, not domestic relations case suit for money owed
Contingency fees must be in writing and must describe percentage to be paid before an after trial land must also describe the percentage and whether net of cost
70% contingent fee has been held to be an over-reaching fee – but 40 and 50% have been upheld
contignent fees have been sometimes prohibited were clinet could pay an hourly fee, both rules and code says must inform client to make the choice Fee splitting – Between lawyers in same firm is permitted – also with former partners when pursuant to a retirement or separation from firm agreement
Fee splitting with lawyers outside firm permitted only, when client consents before consult with other lawyer, total fee charged cannot be twice as much as would
And fee is proportional to work performed – this is code provision model rules say can divide anyway want
Cannot split fees with non-lawyers, can pay salaries or contribute to 401K plans but cannot promise a percentage to a non-lawyer, this includes expert witnesses a set up or agreed upon percentage of particular case Exception (has been asked) a lawyer or firm may share a legal fee with estate of deceased lawyer pursuant to a partnership agreement and may agree to share such fees with non-lawyer widow or widower
Hour 3 tape 2: Sale or purchase of a law practice – A lawyer may sell or purchase an entire law practice so long as written notice is given to each client and the seller is not practicing law Two exceptions a seller may go to work for government and second can work for institutions, in-house counsel of corporation and so forth
We do not sell clients or confidences so attorney must inform client so can either say okay or pick up file
Restrictions on practice of law – covenants not to compete a lawyer or partner or associate saying cannot practice for a year or within 200 miles not permitted does not mean law firm can’t have agreement how a client will be notified on leaving law firm
Restrictions that say may not settle or ask to settle a lawyers right to practice right in future – assume suing GM it is unethical to agree never again to sue GM, and separate violation for GM lawyers to even ask - two violations, to agree to it or even ask for it
Client funds – high priority area – May not commingle your funds or firm funds with client funds – must create escrow accounts for client money, may not commingle your money or firm money, may commingle other clients money not yours
How to handle disputes over how much money owed to client – Assume representing a client in 300,000 case on contingency fee basis for 30% and settle for full value, you are entitled to 100,000 and they are entitled to 200,000 and must call client ASAP and tell the news and now client say thought about fee too much, 1/6 is better, you try to convince stick to agreement but will not how do you divide this money (this is always on test) what should do is take a check for 200,000 and send it to client then write a check for 50,000 to yourself or firm for that amount, because client concedes that much, and the left over 50,000 you should in dispute keep that in escrow account, you may not take whole 100,000 because part in dispute, and cannot hold whole amount as ransom till client concedes your way.
However if question says may you pay 250,000, yes of course, you may send all 300,000 to client if want, but what should do is above
You are required to keep accurate records on you escrow accounts – cannot live off interest of escrow accounts – sometimes lawyers keep things other than money for client must keep property in safe guard, put in safe or some place safe not just around office
Use of funds – Where you hold client funds to pay client expenses or other things empowered to spend money on – that money belongs in escrow account – if client indigent and you pay cost client should ultimately responsible for expenses – you may advance cost for litigation in an action, filing fees, experts and so forth – you may never pay a lay witness for testifying but may advance cost to witness for cost to getting to court and lost wages for going to court may not pay for testimony never, never pay non-litigation cost for client, food, clothes or housing only advance litigation cost
Fees paid by client, which are unearned – advance of 50,000 and says bill against it, they must go to escrow account until earned
Example 4: Client retained attorney B to represent him in a criminal case brought against client as a result of bank failure, client bank president made certain loans in violation of certain banking laws, client gave B 300,000 to be used as follows: 150,000 as an advance against B’s 200/hour fee 100,000 for expert witness and 50,000 for general expenses, travel, postage etc – B deposited in client escrow account (that’s where it belongs) – B spent 500 hours on client defense and during next 5 months also paid handwriting expert and figure print expert 25,000 each to examine documents government was going to present against client as trial, each expert would produce report saying were not client’s, also spent 10,000 on genera expense, postage phone calls etc at the end of 5 five months client fired B accusing him of greed and demand return of whole 300,000.
Which of following proper for B:
Then asked – a. 2 only b. 1, 2, and 4 but not 3 c. 2, 3 but not 1 and 4 d. 1 and 2 but not 3 and 4
Is A good, yes, it is proper, may give 600,000 if wants – its proper to return who amount B also correct and probably what should do C and D, not relevant at all, neither not correct at all
So 1 and 2 but not 3 and 4 is correct answer – d
Law firm - Partnership – partners can only be lawyers, no non-lawyers allowed – partners must also share in profits, does not have to be equal but must share in profits – expense sharing relationships may not hold themselves out as partnerships
Limited liability law firm partnership permitted
Associates – are salaried employees not partners
Professional corporations – only lawyers’ maybe officers, principle shareholder or director – no non-lawyers
Relationship within law firm – Model rules distinguish between responsible and subordinate lawyers with respect to enforcement of potential violation of rules and model code and do so this way - No similar code provisions
Suppose – A associate and P is the partner and are working on a matter – A comes to P with a close ethical question a gray area – if two discuss matter and P decides on course of action and it later turns out that is was ethical violation the P can be disciplined but not A, the responsible lawyer the employer is the responsible lawyer for purposes of discipline, not A, however it has to be a close ethical question
Relationships with other professions – dual professions are permitted and attorney can be both attorney and accountant or physician, any profession and can be reflected on letterhead and business card – how will see this if attorney is practicing say accounting and not law, look for the facts, if being an accountant no attorney client privilege, if not practicing law
Authority of attorney, client and firm – Decisions for lawyer and other for client – outcome determinative decisions are for client, should I sue, settle, plead guilty or how settle for, lawyer should counsel client but decision is for client but tactical decisions are for the lawyer, who to call as witness, interrogatories and so forth up to attorney not the client – but must keep client informed
Under model rules – If client under disability regarding what to do, the lawyer should request the appointment of a guardian – settle or other client decisions
Law firm and its clients – Right to reject and duty to reject cases
If have a license must maintain ethical standards
Have the right to reject cases – Three exceptions – must/should Should represent defenseless and oppressed members of society Must do of fair share of pro bono work Must accept a case if appointed by court should accept if appointed by ABA pro bono
Must reject 5 types of cases; have to reject these:
Unauthorized Practice of Law: May not practice law in jurisdiction not licensed to
Definition – Unauthorized practice of law is both in code and model rules – where a non-lawyer is providing services that require professional judgment of lawyer
What code and rules really mean is – intended to prohibit legal services of anyone who is not a lawyer where such services involve the substantial legal rights of a client
Ask self if substantial legal rights are involved in this area
4 problem areas – Law clerks should be law students are graduate of law school but not yet admitted to practice of law – they can write legal memo and research and provide a whole range of services – and lawyer does not have to read each case – however that letter must be review by the lawyer and determine if it describes the law accurately he cannot simply sign the letter without reading or endorse without understanding what is being said – must supervise
Paralegals perform certain services, research and so forth but must be supervised and work reviewed both law clerks and paralegals can talk to client in certain situations, factual issue are fine, who is so and so
An accountant (for our purposes) is someone who prepares financial statements not one who interprets the code
A real estate agent can probably prepare the deed, but if married and can’t remember proper language you cannot ask real estate that is something important
Preparing a will is considered giving legal advice – this is also consider substantial
Problem 5- Smith graduated from University with a BA, he then attended paralegal school and was awarded a degree, Smith worked as sales person for local TV/cable company but in free time worked as a community activist promoting interest in living will through which people express written wishes regarding under which circumstances when or what medical care should be withheld if they are suffering from terminal illness in the state he is in this is controversial subject, based in no small part a State Supreme court case which holds in absence living will the decision to withhold care is a decision for medical professionals not the family or patient – S feels strongly everyone should have a living will – his feelings based on grandfather that died recently who was in agonizing pain for eight months before he died. S purchased living will kits from local place on weekends goes to local mall and sells the kits for profit the kits have instructions and preprinted forms the conform to legal rights for this type of will.
Is Smith violating the unauthorized practice of law rules?
A is incorrect S is not providing people with legal advice, selling kits not practicing law, s does not offer advice B is incorrect because them people who sold law books to lawyers would be in violation C is incorrect living will does require independent judgment of lawyer but selling books does not D is correct s not giving advice just selling a book
Conflicts of interest – Most frequently asked question are here –
Financial dealings – A lawyer should avoid entering into business with client – unless it is the client’s business, you can buy a car from your car dealer client you can borrow money from you client bank
Where there is a business relationship with a non-lawyer the relationship must be fair, in writing and must advise him to seek independent counsel, and advice
Generally avoid business as a client
Lawyer as a witness – Lawyer may not be an advocate and a witness in same matter
Four exceptions –
Conflicts based on lawyers’ family who are lawyers: A lawyer may appear to have a conflict because member of family may work for a law firm or institution that represents other side – many times problem between husband and wife but can be between parent child – rules assume no pillow talk and as long as that is true each side can continue to represent each side – both code and model rules recognize this
Where one of family members is actually appearing in court and other side just works in the firm where the client has his primary attorney probably no problem, but nonetheless client consent should probably be obtained
Limits on how far this goes – cannot be prosecutor and defense, husband and wife, cannot be dad and daughter against each other in personal injury case – clients cannot consent to these –
Client gifts – A client should not suggest a client give a gift to lawyer if wants to – not talking about a bottle of scotch or flowers this means something more substantial the lawyer should suggest the client get independent legal advice
A lawyer may not prepare a will or any instrument that will give the lawyer or close relative any inter vivos to testamentary gift unless the donee lawyer is related to the client
Books and Media rights done above
Positional and personal difference of the lawyer: Here concerned with lawyer personal interest is in conflict with client or that may inhibit lawyers ability to represent client
If you believe the protection of environment is most important thing facing us – and a clinet walks in and wants to build a hydrocarbon plant ask yourself if you can do this Or Feel that all rapists should be castrated, and feel strongly about this should ask self if can do this, represent them
If you traditionally and have strong feelings about this, if you represent banks and you get a client who wants to sue a bank, not one of yours but another ask yourself if you can do this
Where there are positional and personal difference that limit you ability to represent a client zealously then there is a conflict
Use of information – Model rules and code differ under and when may use information when can use information provided to you by the client
Under the code you may never information from you client, or you learn in the course of representation – for example you client is going to build a shopping center on parcel A, and is not even interested in parcel B you may not buy B and build a parking lot, even though you not competing with you client
However under model rules you may buy parcel B so long as not using the information to the detriment of the client and you can build the parking lot
Conflicts between the lawyer the client and other clients – 3 basic parts to this – Present clients Former clients Government as former client
Present clients - Assume a, b, c, d are driving down the highway, d is the driver a truck crosses yellow dividing line and all are injured – can you represent all four
Maybe or not – what are you going to do if truck counter-claims and says d crossed line or what going to do if it turns out one of passengers distracted driver and that’s why crossed – it may be abc have a better claim against the truck and d on a res ipsa theory – look for a conflict where there are multiple clients in same matter
Criminal defendant problem – a and b accused of robbing bank (direct conflict coming) a says did not do it, b says did do it but insane and a was with me, those are inconsistent and conflicting defenses so cannot represent both clients
Directly Opposing interests – You may not as a lawyer represent someone if that representation will be directly adverse to another client or materially limit you ability to represent the other client – exception is if lawyer reasonably believes representation will not effect other clients and the client if effected this can consents to new client, the lawyers reasonable belief must be based on what a dis-interested lawyer would believe and not himself
Consultation of the client and the client waiving the conflict – You must consult with client inform them completely, must inform them of rights and all options and the client can waive if fully informed – obviously a lawyer cannot represent both sides in a conflict or lawsuit –that is can’t represent both x and y
Potential conflicts based on opposing present clients – First, what about situation where x is suing y and z is a witness and z is y witness can you cross examine a present client in a case on behalf of another present client – can you cross examine z who is going to appear for y who client x is opposing, maybe. Must consult with x though the affected client
The lawyer as intermediary – mode rule provision only – The lawyer may act as intermediary if both sides understand a lawyer is appearing in non-traditional role and that there is no attorney client privilege w/respect to situation and that both sides understand that lawyer will have to bow out if there is litigation on a successful mediation agreement – other than that the lawyer may appear to do this
Non-litigation conflicts - Adverse interest exist in non-litigation – you cannot represent the landlord and tenant in a lease negotiation – one has to look at function of lawyer if present client have conflicts in present situation then lawyer cannot represent both sides and another lawyer will have to be found
Former clients – You can’t switch sides in a case – prosecuting attorney could not switch over and represent the client on appeal
Representation that are adverse to former client – First when lawyer represent a client whose interest are adverse to former client may have a conflict situation, next when lawyer uses information obtained through representation of former client to disadvantage of that client also may have conflict situation
May not represent another client against a former client in the same matter, unless the former client consents
Similar matters – quick test to see of matters are substantially related and when are not related – if you are asked on the MPRE, a former client question in conflict context but facts do not reveal to whether, sometimes they will, but if do not, new matter involving new client is substantially related to the old matter of the old client, do not guess, pretend you are lay person and see if involve same kinds of facts, stockholder suit in both cases, do the matters appear to be related, do the involve same legal issue, workers comp – if look the same, or smell the same if walk and talk like a duck then cannot without client consent represent the new client against old client because of client
Does not mean you can never represent a new client against old – if your represented Ford in workers comp cases and five years later a client comes to you and wants you to represent them in a product defect case then can, facts are different, legal issues are different you can probably take this case no problem
Government lawyer as a former client – Former judges – if judge sat on the matter as a judicial officer the judge may not there after represent parties in that case as a private lawyer this would conflict
Former government lawyers – local and federal – A lawyer may not represent a private party, while in private practice, in a matter a lawyer in which the lawyer participated personally and substantially as a government lawyer unless the government agency where lawyer worked consents – what constitutes substantially related matter, personally and substantially has been litigated, the facts will tell you this, if the former government attorney learns information about a person while working as a government attorney which the lawyer knows is confidential government information about a person, the lawyer may not represent a person and use that information that he learned on the job
Imputed disqualification when former client is government – If any lawyer has a conflict then the entire law firm has that conflict – if paralegal, associate, secretary or anyone – has a conflict the whole firm has that conflict – anybody in firm smells bad all smell bad
One exception will see on the MPRE – for imputed disqualification purposes if a former government lawyer leaves government and goes to private practice if we screen that lawyer out of from case because of conflict and lawyer does not share in fees generated from that case and the government agency consents there is no imputed conflict to whole firm – public policy reason being do not want to punish people for government service so the former lawyer does not have to carry the bad smell with him
But no similar rule if in private practice and go to another firm you bring as a private practitioner all conflicts based on the old law firm - so private practice following private practice does carry imputed disqualification taints
Hour 4 tape 2 – Final Hour – Conflicts involving 3rd parties and Fees paid by 3rd parties –
A lawyer may accept compensation for representing a director; a parent may pay for child a trade association will pay for a member
A lawyer may never accept a fee from 3rd person who will interfere will lawyers representation of the client
Thus the lawyer represents the client regardless who pays the fee – does not matter who pays
It is sometimes possible for the lawyer to represent both the paying party and the client – Example Corporation and client – If that happens corporation must waive any potential conflict and so must a member of the organization – the person providing the waiver cannot be the person being represented – so if president being represented then someone other then the president of corporation must provide the waiver
Where a lawyer represent an individual and institution and that individual does something or fails to do something that is of serious consequence to the corporation the model rules require that the lawyer ask the client reconsider matter and that if client does not, the lawyer must go to another responsible individual person in the corporation to seek reversal of that decision and that person turns down the lawyer the must work their way up the corporate ladder to seek reversal of the situation - lawyer must consider what is best interest of organization, in corporation that is the stock holder, lawyer should consider seriousness of violation but lawyer is required under model rules to go up ladder of corporation to seek reversal of the decision
Where a lawyer who knows a 3rd who is not a client is actually going to be the beneficiary of legal advice, conflicts where legal advice is used by third persons, the lawyer may write a opinion for client which will be used by third person with client consent but under no circumstances may say something untrue in that opinion This comes up mainly where a corporation is trying to borrow money and creditor asks for a letter from counsel saying there are no contingent situations and corporation says write such a letter, the lawyer may not lie because the lawyer knows that bank is going to make or not make that lawyer depending on what the lawyer says
Where the MPRE frequently has asked questions in this regard is where a conflict exists between a client where a client has consented and where a client is not able to make such consent – we assume a knowing waiver of all conflicts – some clients cannot effect a knowing waiver – we assume consent after consultation and a knowing waiver and conflicts can exist if not knowingly or intelligently given
Problem 6: T was in charged of environmental division of state attorney general office he supervised the other four lawyers in division and handled his own cases, one of the other lawyers in division filed suit against World Industries because World was illegally dumping toxic waste into a stream the suit both damages payable to the state and injunctive relief to stop World from dumping the toxic waste. As the division head T gave extensive advice as to the drafting of the complaint and during early stages of discovery he suggested depositions questions that be asked of World’s toxic experts and plant manager where the substance was manufactured. Because of own case load he left the case to his subordinate just before the trial the T left the government job to join a private firm PG, at trial the state won the injunctive relief was granted and judgment was entered in favor of the state for 5,000,000. Three weeks later farmer B, a long time client of PG, asked the firm of PG to sue World for dumping in stream which was the subject to of the states case against World, because toxic waste killed a number of B’s cows after they drank from the stream, farmer B wants T to represent him, assume T possess no confidential information about World which he learned while working for the government.
Is T subject to discipline if represents farmer B
1 Yes, because a conflict of interest between states interest and farmer B’s interest 2 No, because T did not participate personally and substantially in the World matter which he was a government lawyer 3 Yes, because T is side switching 4 No, because farmer B obviously has consented to T’s participation in the matter
Answer –
Duty of confidentiality – There confidentially issues involving present contact and conduct
Time periods – Duty to keep you mouth shut, about client confidential issues, begins with the initial interview it continues through representation and survives the termination of the attorney client representation and survives death of client and lawyer
Libel and slander do not survive the death of someone
With respect to initial interview, even if it is decided that the attorney will not represent the client, the even was is said in initial interview may not be revealed
In terms of what is confidential – model rules and code are slightly different but not much – Model rules say – any information relating to representation whether learned from the client, learned from investigator learned from any other party or anyone
Code – what is confidential is what is protected by the attorney client privilege and second, secretes that revelation of which would be embarrassing to client
Some exceptions – You may discuss confidential information, under code and rules, with other lawyers in firm, paralegals, with other people who have to be consulted, investigators
You are not under any circumstances to discuss client affairs, past present or future, with your relatives or friends – must keep mouth shut with clients
Exceptions – If client consents may reveal that which is confidential, this must be a knowing consent, must be a waiver of confidences and a waiver after consultation with a lawyer
If a court requires you may not only reveal what is confidential but you must, newspaper reporters are permitted to go to jail to protect sources and confidences, you may not as a lawyer if a court directs you to reveal a confidence you may not litigate courts right to do that from a jail cell, you must reveal and litigate at appellate level whether court should have required it
A lawyer may reveal to protect himself, so if lawyer sues the client or client sues you may reveal to protect yourself - if you are up on ethical charges or crime in order to protect selves lawyer may reveal confidences to protect self
You are required to reveal client confidence that have intent to commit a crime, under certain circumstances – you may, you do not have to – if it’s a past crime may not reveal subject to above exceptions – it says may reveal client intention to commit f |