Professional Responsibility Notes

Beginning Attorney Client Relationship Relationship Rule: Attorneys have no duty to accept representation. Except: When Appointed by Court. Rule: Attorneys have duty to reject when: - Violation of Law - Disciplinary Rule - Frivolous claim - Not competent to handle the matter Rule: In litigation withdrawal requires court permission. Must Refuse: - Motive to harass or injure - Frivolous case - Incompetent or too busy - Personal feelings may impair effective counsel - Lawyers mental or physical condition impair effective counsel May Withdraw: - Any reason Without material adverse effect on client interest o o Or, if client consents -

Client Persists in Criminal or Fraudulent Conduct o o

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services, may Lawyers assistance, must

Client Has Used Attorney's Services to Commit Past Crime or Fraud Client's Objective Is Repugnant or Against Against Lawyer's Beliefs Client Breaks Promise to Attorney o o

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Using

client substantially fails to fulfill an obligation to the attorney warned that the attorney will withdraw unless it is fulfilled

Financial Hardship for Attorney Client Will Not Cooperate Other Good Cause

Procedure to Withdraw -  permission of the tribunal before withdrawal - reasonable notice  - time to obtain another attorney; - R efunding efunding attorneys' fees  paid in advance - R eturning eturning all papers and property 

LAWYER'S DUTIES OF COMPETENCE AND DILIGENCE COMPETENCE

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legal knowledge, skill, thoroughness, o The complexity and specialized nature of the matter  The lawyer's general experience; o The lawyer's training and experience in the field in question o o The preparation and study the lawyer is able to give the matter  a lack of legal knowledge or skill really means a failure to seek it

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and preparation reasonably necessary for the representation

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reasonable diligence and promptness  dedication and commitment to the client's interests and o with zeal in advocacy on the client's behalf  control workload o adequately handled each matter 

DILIGENCE

Promptness

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devastating to Clients Interest o court-ordered deadline missed o statute of limitations permitted to run client needless anxiety o undermine confidence in trustworthiness

SINGLE VIOLATION SUFFICIENT TO IMPOSE DISCIPLINE MALPRACTICE LIABILITY A malpractice action differs from a disciplinary matter in three ways: In a malpractice action: (i) the forum is a civil court, not a disciplinary tribunal; (ii) the attorney's adversary is an injured plaintiff, not the state bar; and (iii) action is to compensate the injured plaintiff, not to punish the attorney, and not to protect the public from future wrongs.  Legal ethics rules are for disciplinary purposes. -  Not designed to be a basis for civil liability - lawyer's breach of an ethics rule does not automatically or presumptively mean that the lawyer has committed malpractice - Courts regard an ethics violation as relevant evidence that conduct was below the appropriate standard of care. Theories of Malpractice Liability

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Intentional Tort o fraud, o misrepresentation, o malicious prosecution, o abuse of process, or  o misuse of funds Breach of Fiduciary Duties An attorney acting as a fiduciary for the client owes the client all of the customary duties of a fiduciary, including: o loyalty, o confidentiality, and o honest dealing Breach of Contract o express oral agreement o implied promise to use ordinary skill and care to protect the client's interests Negligence Duty of Care o Standard of Care competence and diligence normally exercised by attorneys in similar circumstances Breach of Duty of Due Care o Errors of Judgment An attorney is not liable for "mere errors in judgment" if the  judgment was well-informed and reasonably made K nowledge of Law An attorney is expected to know the ordinary, settled rules of  law 

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y

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y

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y

o

Legal Causation 

o

injury would not have happened but for the defendant's negligence

Damages 

Plaintiff must prove damages Direct Indirect if foreseeable y y

Liability for Negligence of Others The

ordinary principles of respondeat superior apply in suits for professional negligence. T hus,

an attorney can be held liable for injuries caused by a negligent employee associate when acting within the scope of employment.

Contracting with Client to Limit Malpractice Liability - Client must be independently represented when signing such agreement Settling Malpractice Claims - advise in writing, to seek advice from independent lawyer about the settlement and - giving that person time to seek that advice Even if the lawyer pays the client back for any damage he caused, he is still subject to discipline.

DUTY OF CONFIDENTIALITY Rule: Lawyer must not reveal any information relating to the representation of the client. Exceptions: - Informed Consent " informed consent "  means that the client agrees to a proposed  course of action after the lawyer has adequately explained the risks and reasonable alternatives , - implied authorization to carry out representation, unless client says NO - Attorneys Defense o Reveal only necessary o Attempt to limit disclosure - Obtain ethics advice - Court Order  - (May) Disclosure to Prevent Death or Substantial Bodily Harm - Disclosure to Prevent or Mitigate Substantial Financial Harm o (Future) reasonably certain to result in substantial financial harm to someone, if the client is using or has used the lawyer's services in the matter. o (Past) The same is true if the client has already acted, and the lawyer's disclosure can prevent or mitigate the consequent financial harm

Encourages candor between the lawyer and the client, Encourages the client to seek early legal advice, and helps the lawyer discover all of the information relevant to the client's legal problem Attorney-client privilege concerns only the disclosure of information. Discipline. Duty of confidentiality concerns both the disclosure and use of information. Discipline and Malpractice.

ATTORNEY-CLIENT PRIVILEGE Rule: -  prohibits a court or other governmental tribunal from compelling the revelation of  confidential communications Exceptions to Privilege - client seeks the attorney's services to engage in or assist a future crime or fraud - communication that is relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the attorney-client relationship.

CONFLICTS OF INTEREST RULE: Substantial risk that lawyer's representation of client will be materially and adversely affected by: - the lawyer's own interests or  - the lawyer's duties to o another current client, o a former client, or  o a third person

If conflict is apparent in beginning, Attorney must not take the case. If Conflict becomes apparent after taking the case, and informed consent from both clients will not remedy, then Lawyers must withdraw.

A lawyer's failure to handle a conflict properly can have three unpleasant consequences: (i) disqualification as counsel in a litigated matter, (ii) Professional discipline, and (iii) civil liability for legal malpractice. Imputed Conflicts of Interest

when one of the lawyers cannot take on a matter because of a conflict of interest, the other  lawyers in the "firm" are also barred from taking on that matter. Concurrent Conflicts of Interest

a lawyer must not represent a client if the representation creates a concurrent conflict of interest. - Directly adverse to another client - Significant risk of Materially limiting representation Informed, Written Consent Lawyer may represent a client if all four of the following conditions are satisfied: (i)  belief of competently and diligently represent each affected client, despite the conflict of  interest; (ii)  Not prohibited by law: (iii)  Not involve asserting a claim by one client against another client represented by that lawyer  in the same litigation (or other proceeding before a tribunal); and (iv) each affected client gives informed, written consent.  Reasonable

Lawyer Standard  If a reasonable lawyer reviewing the facts finds that the clients interests cannot be adequately  protected despite the conflict then conflict in unconsentable.  Informed 

Client is aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm them. Civil Litigations

Lawyer may represent two plaintiffs or two defendants if both give informed consent in writing. - Analyze fact to ascertain the conflicts Find effective representation possible despite conflict o - Disclose potential conflicts to both - Invite informed written consent - If potential conflict become present re-do steps

Business Transactions with Client and Money or Property Interests Adverse to Client A lawyer's professional training, together with the bond of trust and confidence between a lawyer and client, create a risk that the lawyer can overreach the client in a business, property, or financial transaction. Therefore, a lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client, unless all of the following conditions are satisfied: - fair to the client; - terms are fully disclosed to the client in writing  o client can reasonably understand o cover the essential terms  o lawyer's role in the transaction - advised in writing that he should get the advice of an independent lawyer  about the arrangement before entering into it - The client gives informed consent, in a writing that the client signs. Propriety Interest in Litigation: Lawyer must not acquire a proprietary interest in the cause of action or the subject matter of  litigation that the lawyer is conducting for the client. Exception: Contingency Fees, Attorney Lien

CONFLICTS INVOLVING THE INTERESTS OF THIRD PERSONS A lawyer must not accept compensation from a third person for representing a client, unless three conditions are met: (i) client  gives informed, written consent; (ii) third person does not interfere with the lawyer's independence or the representation (iii) does not compromise the client's confidential information.