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Course: Professional Responsibility 3 Nofar (Michigan)
School: unknown
Year: 2002
Professor: unknown
Course Outline provided by Legalnut.com
Also available, professional responsibility outline for the bar exam.
  1. Scope of Rep

    1. L shall seek the lawful objectives of C through reasonably avail means.

    2. L may limit objectives of rep if C consents after consultation

    3. L cant engage if illegal

    4. Client has ultimate authority to determine the scope/objectives to be served by prep.

      1. Decisions made by C; if L disagrees w/ C’s course of conduct (which the L considers imprudent) the L can w/drawl w/ cts permission and w/ affect L’s fee.

        1. Acceptance or rejection of settlement offers

        2. Waiver of affirmative defenses in a civil case

        3. Plea to be entered in a criminal case

        4. Waiver of a jury trial in a criminal case

        5. Whether to testify in a criminal case

      2. Decisions to be made by L (means/strategy);

        1. Choice of motions

        2. Scope of discovery

        3. Choice of witnesses

        4. What evidence to introduce.

      3. Example;

        1. P25 insur co is not C; injured party is C. If ins co assigns case to you; duty of confidentiality to C. Advice C to get independent counsel regarding damages in excess of policy limit.

        2. Medical report; can be shown to C & insurer b/c C is deemed to have consented to disclosure by agreeing to policy ins.

    5. Acceptance doesn’t constitute endorsement of client political, social moral views.

  2. Competence;

    1. Knowledge, skill, thoroughness, preparation; to service C

  3. Diligence

    1. L s/act w/ reasonable dil & promptness (relay settlement offers unless imprudence decision by C. C controls scope)

    2. Commitment & dedication vs procrastination

    3. Overlook S of L.

    4. Carry through to conclusion

  4. Commun

    1. L s/ keep C reasonably informed & explain to C

    2. L s/ reply to request from C for info

    3. L CAN w/hold infor if it w/ harm C but cant w/hold to serve L’s int

  5. Fees

    1. No excessive fees or unreasonable fees ($15K fee for K dispute)

      1. Consider

        1. *Fee customarily charged in locality for similar legal services.

        2. Time/labor

        3. Novelty

        4. Likelihood that acceptance will preclude other employment

        5. Amount involved $

        6. Time limitations

        7. Natural length of professional relationship

        8. Experience / rep of L

        9. Fixed or conting fee

    2. Fees shall be communicated BEFORE or WITHIN a reasonable time to C

    3. Fee can be contingent;

      1. Requ:

        1. Cant be clearly excessive

        2. M/be in writing

        3. State method of determining fees 33% max for personal injuries & 33% of net after expenses.

        4. Provide a written stmt of the outcome & method of determination

      2. NO conting fee in:

        1. Domestic relations; don’t want to encourage divorce

          1. Exception; is to collect unpaid alimony, or property settlement for a divorce that has already occurred. Then can charge a contingent fee.

        2. Criminal

        3. Can’t pay a contingent fee to an expert witness. This results in improper influence.

 

 

    1. Retainer;

      1. Return unused portion

    2. Fee paid in prop is subject to scrutiny b/c of questions as to value & L’s knowledge of value

    3. Division of fees OK; Referral fees;

      1. Tell client

      2. Consent

      3. Must be reasonable

      4. No need to disclose the share each L gets

  1. Confidential info

    1. Confidences refers to info protected by atty/C privilege (learn from C that property is valuable & L buys some)

    2. Secrets refers to all info gained in the professional relationship

      1. L/C priv survives death of C.

      2. Person who requests an investigation on a L waives L / C privilege

      3. Examples:

        1. If mother give you possession of the crime weapon & you represent son, then L w/be required turning over the gun to the authorities. L has no duty to take possession of the gun and therefore no duty to notify the authorities. Cant advice mother or son on how to hide the weapon b/c this would be counseling or assisting a crime. Should inform mother to seek independent counsel re the gun.

        2. Co-L partner seeks legal advice regarding misappropriation of C funds.

        3. Represent Wal-Mart then buy property next to them so you can make $

        4. L represents A & B engaged in an auto accident. If medical reports show that B has HIV; it’s a C secret b/c it’s embarrassing. L’s duty to A involves the auto accident; not protection from HIV. If HIV info is to be disclosed at trial then L might give A advance warning. L can talk to B & recommend disclosure.

        5. Can’t disclose C’s racial hatred. Can reveal if suit against L as self-defense—L’s discretion there is no obligation.

      4. L shall not REVEAL or USE confid or secrets unless:

          1. C consents after full disclosure

          2. When permitted by law or ct order

          3. Rectify consequences of C illegal or fraudulent acts; L has a “professional rt but not a duty to rectify the situation”. L has Discretion. Should seek to persuade C.

            1. Withdrawal; if client uses service for illegal means.

          4. Collect a fees/ L has rt to defend against the C

    3. L must prevent EE’s from misappropriating & disclosing info

    4. This encourages FULL DISCLOSURE

    5. May disclose to other members in the firm

  2. Confl of int

    1. Simultaneous rep; (2 C w/adverse interests) cant do it unless

      1. L reasonably believes that the rep will not adversely affect the rep (if material then cant do it)

      2. C consents after consultation

      3. Consultation s/ include an explanation of implications adv/dis of cmn rep.

    2. Potential conflict;

      1. Cant materially limit L’s responsibilities;

    3. Loyalty is a essential element in L/C relationship

      1. Consider the likely prejudice

  3. Confli of int – prohibited trans

    1. Stake in outcome;

      1. L shall not enter into any business transactions w/ C unless: (Ex. Loan or % of business as pmt)

        1. Transaction is fair & reasonable to the C and full disclosure

        2. C is given reasonable opportunity to seek advise of independent counsel

        3. C consents in writing

    2. L shall not rec’ a substantial gift from C.

    3. L cant take literary rt/ media rt to portray or acct based on former representation.

    4. L can advance ct csts/repayment is ultimately up C unless C is indigent. (financial assistance to C)

    5. Can accept compensation from someone other than C if;

      1. Client consents after consultation

      2. No interference w L’s independence or professional judgment

      3. C’s info is protected

    6. L cant make agreement limiting L’s liability unless permitted by law

    7. Can’t settle a malpractice claim w/ former C w/o first telling C to seek independent representation

    8. No sexual relations w/ C; inhibits gd morals; ethics; honesty

  4. Confli of int – fmr client

    1. Is C viewed as a continuing C? (cant oppose former C in Subst’y same matter & disadvantage C)

    2. A L who has formerly represented C in a matter SHALL NOT thereafter represent another person in the same or substantially related manner in which that person’s interest are materially adverse to interest of the former C unless C consents after consultation

      1. Ex rep H in purchase of land then rep W in the divorce. Can’t use confidential info against former C.

    3. Happens b/c lawyers move btwn firms

      1. Screening may be employed to preserve confidences

      2. Cant rec any profits from the C.

      3. If previous adverse rep then the firm is disqualified.

  5. Imputed disqualification

    1. Waiver is ok

    2. Think loyalty to C

    3. Former gov ee shall not represent private C in connection with a matter the L participated personally and substantially as a public officer or EE, unless screened & appropriate gov agency consents after consultation. If L is not involved then no consent is required. Firm is not disqualified if L is screened & rec’s no portion of the fee & gives written notice to gov office.

    4. L serving as a public officer shall not;

      1. Negotiate for private employment w/ any person involved as a party or as an L for a party in which the L is participating personally and substantially, except that an L serving as a clerk to a judge may negotiate for private employment after L has notified the judge.

    5. Successive gov priv employment;

  6. Fmr Judge

    1. A L shall not represent anyone in connection with a matter in which the L participated personally and substantially (look at involvement) as a judge or arbitrator or clerk.

  7. Organ as client

    1. If know EE is bribing (unlawful activity) then “L s/ act in best interest of C”-aka organization.

    2. Take matters to person higher up

    3. Purpose is prevent harm to org

    4. L can’t counsel or assist in unlawful behavior RE new K supported by bribe.

    5. L s/ w/drawl

    6. L may reveal confidential info to prevent a crime or rectify unlawful activity done b/c of L services.

    7. If the harm is financial rather than physical then L may not have to disclose.

  8. Client under disabil

    1. Maintain a normal client relationship w/ C

    2. Must seek apptmnt from guardian.

  9. Safekeeping of prop

    1. Promptly notify C of rec’g funds

    2. Promptly deliver to C

    3. Promptly render a full acct’g (hold records for 5 yrs)

    4. Maintain a pooled interest saving trust acct

    5. Separate int bearing for C if int >$50

    6. Securities s/b keep in safe deposit box

    7. Cant use funds to coerce C

    8. Cant keep $ in office checking acct

  10. Declining repr

    1. Shall w/d

      1. L’s physical mental incapability materially impair

      2. L is discharged

      3. Illegal objects

    2. May w/d

      1. C persists to pursue criminal objective

      2. Used L’s services to commit past fraud

      3. Financial burden

      4. C’s objective is so repugnant

    3. L must;

      1. Give notice

      2. Allow time for C to replace L

      3. Surrender papers

      4. Refund any advance pmt

  11. Sale of law practice 1.17

    1. May sell or purchase

    2. Cant sell individual C’s

    3. Fees charged shall not increase by reason of sale; cant pass cst of gd will to C

    4. Written notice at least 91 days prior to sale

    5. Id purchaser

    6. Notice of rt to obtain other L or take file

    7. Consent will be presumed if C doesn’t object w/in 90 days

    8. Access to C records requires consent.

  12. Intermediary, (handles both sides, ex. a business combination).

    1. Can act as intermediary if:

      1. Consults w/ C’s about

      2. Advantages & dis

      3. L reasonably believes in C’s best int

      4. Adequate informed decision

      5. Little risk of material prejudice

      6. W/drawl if any C requests

  13. Meritorious claims 3.1

    1. Shall not bring frivolous claims

  14. Candor toward tribunal 3.3

    1. Cant knowingly make false stmt to tribunal

    2. Must disclose controlling authority if directly adverse

    3. If L has offered evid known to be false (perjury) must make reasonable remedial measures.

    4. Perjury; cant call any witness he believes will testify falsely

      1. If confrontation b4 trial—w/drawl

      2. If during litigation—persuade. If done anyway disclose to ct

      3. After trial is over—it’s a client secret & is privileged

    5. Adhere to rules of evidence and rules of procedure; ex. P19 can’t inquire into sexual history of P.

 

  1. Fairness to opposing counsel

    1. L shall not;

      1. Assist witness to testify falsely

      2. Knowingly disobey tribunal

      3. Make frivolous discovery

      4. Assert personal opinion of fact at trial unless testifying

      5. Cant pay a contingent fee to expert

  2. Trial publicity; think prosecutor.

    1. L cant make extra-judicial stmt

    2. That knows or reasonably know

    3. That may create substantial likelihood of material prejudice trial

    4. 6th A rt to fair trial

    5. DP rt of liberty

  3. L as Witness

    1. Cant be L and witness (check if L’s testimony w/b cumulative (other persons were present & c/ testify) & not necessary)

    2. Disqul not imputed to firm

    3. Unless: (1) uncontested issue, (2) re value of legal services)

  4. Prosecutor duties

    1. Prosecutor’s duties are to the state and to seek justice.

    2. Must have probable cause

    3. Make sure accused has been advised rts

    4. Disclose all evid “procedural justice”. Ex prosecutor gets a hold of a diary. Failure to notify D’s L is violation of D’s Due Process rts.

    5. Shall not make an extra judicial stmt expected to be disseminated by public communication if L knows or s/know it w/ have substantial likelihood of materially prejudice an adjudicative proceeding.

      1. Calling a press conference and announcing the indictment of D id ok (id of accused is ok). This is a matter of general public concern.

      2. It’s generally improper to announce the results of any examination or test; ex. DNA testing.

      3. Prosecutor s/ mention that the accused is presumed innocent unless proven guilty.

      4. L’s have a rt to reply to prejudicial pretrial publicity.

  5. Responsibility of partners

    1. That EE’s adhere to MRPC

    2. Supervise L and non-L’s

    3. Retain responsibility for L & nonL

    4. Responsible for violations if;

      1. Orders w/ knowledge or ratifies misconduct

  6. Nonlawyers;

    1. Not subject to professional discipline but L must advise them to conduct themselves w/in ethics rules. Ex secretary cant disclose info to C’s parents b/c they are paying for sons legal counsel.

    2. Can take from general profits (profit sharing) not from specific profits

    3. L can’t assist a non-L in unauthorized practice of law.

    4. L retains responsibility for their work.

    5. L s/ instruct them on ethical obligations.

    6. Non-L cant have interest (shs of stk) in law firm

    7. Practicing across state line;

      1. Unauthorized practice of law exceptions;

        1. Pro hac vice appearances provided that a L is a member in good standing of at least one bar

        2. Clients involve in multi-state business.

        3. Multi-state law partnership

        4. Practice b4 federal administrative agencies.

  7. Accepting C’s

    1. Reject if;

      1. Violates MRPC

      2. Unreasonable financial burden

      3. So repugnant it would impair C-L relationship

  8. Referral services

    1. Cant pay for it by giving gifts to people. Look to see if it immediately followed the referral. Creates the appearance of impropriety but appearance alone is not a violation.

  9. Communication regarding L services

    1. Communication shall not;

      1. Make false or material misrep or omit necessary fact

      2. Make unjustified expectation of results (never lost a case)

      3. Can’t compare L to L unless factually substantiated. (stmt of quality)

  10. Advertising;

    1. Advertising is communication with the public at large. Solicitation (in person, by telephone, by an agent, direct mail) is a L contact with a layperson designed to entice the layperson into hiring the L.

      1. Solicitation only applies when there is pecuniary gain. If the L is doing it pro bono then no violation.

      2. Direct mailing is a violation only if L has knowledge that C doesn’t wish to rec communications. M/say “Advertising Material at bottom

        1. Can place business cards in funeral home b/c like direct mailings its ok to target clients as long as its not solicitation.

    2. Keep copy for 2 yrs

    3. Can participate in not for profit referral service; cant pay people for recommending L to others.

    4. L advertising can’t be false or misleading.

      1. Can’t use firm name if no firm exists/letterhead. Both parties are subject to discipline.

      2. Trial practice is OK no misleading

      3. Cant say litigator if its only aspirational.

      4. Can advertise in yellow pages.

  11. Direct contact w/ prospective C;

    1. Shall not solicit (telephone or in person or letter directed to specific recipient) from unless family or prior relationship

  12. Misconduct;

    1. Can’t threaten criminal prosecution to obtain advantage in civil trial.

    2. Reporting misconduct;

      1. Duty to report significant violations or RPC that raise question regarding honesty, trustworthiness.

  13. Disciplinary sanctions;

    1. Disbarment

    2. Suspension

    3. Reprimand

    4. Probation

    5. Restitution

    6. Admonishment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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