Legal Basics and Ethics

Goals: The students will1. Continue with their study of case

briefing.2. Learn about legal ethics and the Model

Rules.

Review Case Briefing ◦ Brief case in groups of three

◦HOMEWORK Brief the case in a one page brief Due Tuesday, September 3, 2015

Case Briefing

What are ethics? What does it mean to act ethically? What do you suppose the legal rules of

ethics portend to do?

First there was the Model Code of Ethics which only bound the members of the American Bar Association as opposed to lawyers across the nation.

Ethics and the Law

Model Rule 1.1 requires competence.◦ What is competence?◦ Does being competent mean being perfect?◦ Do you think an attorney can accept a case without

knowledge of the specific law in depth and gain competence at the client’s expense?

◦ So yes, an attorney can gain competence at the client’s expense, but what does it mean that the preparation be “reasonable?”

◦ How would a young attorney gain competence? Research, working with more experienced attorneys.

◦ Does competence include keeping up with modern technologies? Why or why not?

Competence

Do you think an attorney and his client can enter into agree not to sue for attorney’s lack of competence? Why or why not?◦ Ethics rules do not allow a client to waive, in

advance, the lawyer’s duty of competence. Why not? Cannot a client agree to anything the

lawyer says or asks? No, the lawyer has the upper hand.

◦ Could a client waive a claim against the lawyer retrospectively (after the fact)? Why or why not? Yes, but it must be an informed waiver. What does that mean?

Malpractice and Competence

The agreement between the attorney-client is a contract. What does that mean?◦ Does the attorney “owe” the client anything in

this relationship?◦ Does the client “owe” the attorney anything in

this relationship?◦ Does the agreement have to be in writing?

A meeting of the minds – both parties are mentally clear about what is expected of each other?

In a dispute over the relationship, who would decide the binding terms?

Attorney-Client Relationship

Three ways:◦ The prospective client lets the attorney know of

the client’s intention to hire him and the attorney agrees. What would this look like in real life?

◦ The prospective client lets the attorney know of her intent to hire the attorney and the attorney fails to say no in a situation wherein it would be reasonable to do so. What does this mean?

◦ The attorney is appointed by the court or tribunal. When does this happen?

How does the Attorney-Client relationship arise?

Not necessary, but a retainer agreement protects everyone.◦ What is a retainer agreement?◦ Why is one wise for all the parties?◦ If one is not signed, how do we know what the

parties are supposed to do? Reasonable man standard. What is that? Does a lawyer have to take every case?

What might be some exceptions?

Is it necessary to write a contract?

What does it mean to be diligent? How would this apply to an attorney working a

case?◦ Rule requires that a lawyer “shall act with reasonable

diligence and promptness in representing a client.”◦ In addition, the lawyer has an affirmative duty to

engage in reasonable communication with his client and must not neglect a legal matter entrusted to him/her. What does this mean? If an attorney forgets one small matter, is that neglect?

No, neglect means a pattern of action or inaction, not just one instance of delay.

Diligence

What if a client refuses to pay for the lawyers actions in a case? Is the lawyer relieved of his responsibility to diligently represent the client?◦ The attorney may not stop working the case or

allow deadlines to pass. The lawyer must move to withdraw and be given an order by the court and may not neglect the case in the meantime.

Diligence

The rules require the attorney to make reasonable efforts to communicate with his client and consult with the client if the client is not incapacitated.◦ What if the client is unable to communicate his

considerations with the attorney? Attorney must consult with an agent of the client and

proceed in good faith to protect the interests of the client.

Communication

Must be reasonable◦ How is this determined?◦ Would the fees in Idaho and the fees in NYC have

to be the same to be reasonable? Contingent fees – What are those? Why should fee agreements be in writing? Why do the rules put restrictions on fee

division with lawyers who are not practicing in the same law firm?

Fees

The attorney is the agent of the client. So what?

What is attorney-client privilege?◦ Could a client lose the privilege? How?◦ Could the lawyer make a mistake and violate the

privilege?◦ What about technological advanced and the rule

of confidentiality?

Confidentiality

Does an attorney have a duty to keep communications of a prospective client confidential even if the attorney is not hired?

Does an attorney have a duty to keep communications of a former client confidential?

Does an attorney have a duty to keep communication of a client who has died confidential?

Can an attorney disclose otherwise confidential information to other attorneys in his firm?

Confidentiality and the Prospective Client

When the client knowingly or impliedly waives the right. What does this mean?

To prevent a crime. Why would this be OK? If a court orders. Why would a court do this? When it is necessary for the lawyer to establish a claim

or defense in a controversy with a client. Why is this OK?

When it is necessary to defend against a civil or criminal action against the lawyer. Why?

When it is necessary to collect fees. Why? When an innocent person may be convicted. When offering the communication would result in

putting forth false evidence toward the court. Why?

Exceptions to confidentiality

Very complex subject – takes up nearly 200 pages of the Restatement of Law Governing Lawyers, 3rd Ed.

These categories are covered in that volume◦ Conflicts between

Client’s and lawyers personal and business interests Former and current clients Clients and third parties paying the bills Concurrent representation of clients whose interests

conflict

Conflicts of Interest

General rule is that the lawyer must explain to two prospective clients who seek to have the lawyer represent both of them and each on separate occasion communicates to the lawyer that there is no expectation of privacy.◦ Related rule of evidence is that the clients would

not want secrets from each other. If the clients want to maintain confidentiality from

co-party then one should engage another attorney outside the firm.

The General Principle: Consent

If a law firm finds itself simultaneously representing two adverse clients in two different lawsuits, it may not avoid the problem by dropping the disfavored client like a “hot potato”◦ If the parties do not consent to the conflict, the

law firm must withdraw from representing both parties in both cases.

The Hot Potato Doctrine

Cannot have business dealings with a client unless◦ A reasonable lawyer believes that the business

interest would not adversely affect his representation, and

◦ The lawyer secures informed consent from the client in writing.

Business Dealings with the Client

The rules prohibit the lawyer from soliciting substantial gifts.

Lawyers may not prepare any legal documents favoring the attorney or a family member of the lawyer.

Accepting Gifts from Clients

Lawyers must be careful not to comingle funds of the client with their own funds.◦ What do you suppose this means?

Lawyers may deposit the client funds in a special trust account and keep a close accounting of how much or which clients’ funds are in there.

If the attorney takes money in advance for work to be performed, she can only take out that amount that is billed for the billing cycle and keep a close accounting.

Lawyers must keep tangible property segregated from his own.◦ What does this mean?

This could mean getting a safe deposit box for negotiable documents

Safekeeping Property

What are such claims?◦ Claims with merit and claims without merit

When the client consults an attorney about filing a lawsuit, the lawyer must give an honest appraisal regarding the suit and whether it should be brought and what the up side and down side of the case is.◦ On one hand the lawyer wants to comfort the

party, on the other the lawyer does not want to raise false hopes or file a lawsuit that should not be filed and has no chance, on its face, to be won.

Meritorious and Frivolous Claims

There are plenty more rules, regulations, and bar association decisions regarding the practice of law. They are too numerous to go into here. ◦ Now that you know some important ethical

considerations, you may be wondering what the implications are when one of the rules is violated.

And there’s more . . .

What are sanctions?◦ In this case these are punishments imposed by

the state bar association or the courts for violating the rules of ethics. Professional discipline Law suit for damages in malpractice Fee forfeiture Disqualification Suspension Disbarment

Sanctions