#16962 - Professional Responsibility Outline - Professional Responsibility Outline

Professional Responsibility Outline

Professor Crystal – Spring 2019

Introduction

• 1. Foundations of PR – Lawyer as:

  • Fiduciary

    • Fundamental duties:

      • Competence ABA 1.1,

        • ABA 1.3 for diligence

      • Communication ABA 1.4

      • Fairness ABA 1.5

      • Confidentiality ABA 1.6

      • Loyalty ABA 1.7

      • Safekeeping of Client Property ABA 1.15

  • Officer of the Court

    • Adversarial system: (1) neutral decisionmaker, (2) competent advocates zealously representing clients, (3) fair rules of procedure

    • Duties to Court and Adversaries:

      • Prohibition on making frivolous claims ABA 3.1

      • Duty to reveal client perjury ABA 3.3(a)(3)

      • Prohibition on communication with represented parties ABA 4.2

    • Policy Reasons for Limitations:

      • Excessive zeal on behalf of client can undermine adversarial system

      • Certain 3P/societal interests can outweigh client interests

  • Own Person

    • COI, legal fees, marketing of services

• 2. Tension in Lawyers’ Obligations (In Re Pautler)

  • Prosecutor pretends to be PD on phone.

  • Issues + Holdings:

    • Pautler violated MRPC 8.4(c) – “conduct involving dishonest, fraud, deceit or misrepresentation”

    • Violated MRPC 4.3 – advice to unrepresented person whose interest may be adverse to lawyer’s own client.

    • ***Pautler could not have asked a PO to impersonate PD 8.4(a) – cannot do through the acts of another which lawyer could not do himself.

  • Tensions:

    • Pautler emergency situation, pressure of situation, duty to prevent future harm, conflicting obligations as peace officer, misrepresentation permissible in some cases

    • Court/Judges concerned about integrity and reputation of profession (recent substantial criticism), removed from pressure of situation (hindsight 20/20), worries that exceptions to rules may promote abuse of rules

• 3. Sources of Professional Obligations

  • 1. PR Rules and Standards:

    • Rules of Professional Conduct

    • Ethics Advisory Opinions

      • Interpretations of the Rules – persuasive but NOT binding.

      • ABA Committee on Ethics and PR

      • NYSBEAC and NYCBC

    • Standards of Practice

      • Published by organizations in particular areas of practice

      • Persuasive

      • Deal with specific problems in particular areas of practice

    • Institutional Norms

  • 2. Law Governing Lawyers

    • (i) Court decisions, sometimes rely on PR rules

      • Disciplinary, malpractice, disqualification, sanctions, FRCP 11, criminal prosecutions

    • (ii) Statutory Law

    • (iii) Admin Rules and Regs (ex. SOX)

    • (iv) Court rules (Rest. v. Model Rules)

  • 3. Relationship Btw PR Rules and Standards & Governing Lawyers

    • (i) Sometimes law overrides professional standards (ex. State statutes limiting contingency fees)

    • (ii) Sometimes law deals with substantive issues not covered by rules/standards (ex. Confidentiality, ACP)

    • (iii) Sometimes law supplements rules or standards (ex. improper questioning)

    • (iv) The law often deals with the remedy and not standards (ex. IAC)

  • 4. Developing Philosophies of Lawyering and Moral Accountability

    • (i) Client-centered philosophy/neutral partnership

      • Principle of professionalism: lawyers should do everything possible to advance client interests; only refuse to act if clear violation of PR rules.

      • Principle of non-accountability: lawyers not morally responsible for actions taken in their roles on behalf of clients

      • **Possibly allows for justification of immoral actions

    • (ii) Philosophy of institutional values

      • Values that express social/institutional role of lawyer

      • Wendel: lawyer is quasi-public official who has obligation to respect law (not override for personal interest/use as instrumentality)

    • (iii) Rule of Law

    • (iv) Philosophy of self interest/defensive lawyering

      • Maximize own interest: money, reputation, avoidance of risk (discipline)

  • 5. Morality

    • (i) Freedman-Tigar

      • Both agree morally accountable for choice of clients but differ on whether accountability requires public justification

      • Freedman: lawyers morally responsible for decision to undertake representation

      • Tigar: burden would make it harder for clients to obtain representatives, possible violation of ACP

    • (ii) No moral responsibility in choosing which cases to take or fore the outcome of case (Standard Conception)

    • (iii) Moral responsibility for choice of area of practice

    • (iv) Responsibility to engage in moral dialogue with client during representation, but client maintains right to make decision

    • (v) Lawyers may remove from representation if they oppose client on moral grounds

    • (vi) Lawyer who decides to represent client, despite strong moral obligations, is not morally accountable (MR 2.1, 1.16(b)(4), 1.2(b))

    • (vii) Obligation to be morally active in representation of clients

    • (viii) Lawyer has moral obligation to preserve legal institutions (takes moral obligation from practice to institutional dimension)

Duty of Competence (ABA 1.1)

• Occasional sanctions for lack of competence (Sandstrom)

• Togstad: violations can lead to malpractice liability

  • Holding: Lawyers can be liable for negligence in turning down cases.

    • Negligence in giving advice that Togstad did not have a cause of action without adequate factual investigation

    • Negligence in failing to inform of upcoming expiration of SOL

  • Facts: Lawyer told Togstad that he “did not think we had a legal case, however, will discuss with his partner”, heard nothing and assumed there was no cause of action.

  • What should lawyer have done?/Lessons:

    • Recommend they talk to another attorney

    • Do not give specific dates but say that the SOL is ticking

    • Don’t explain exactly why can’t get into the case (that speaks to the merits of the case.

• Legal Malpractice Action:

  • Several COAs: (i) negligence, (ii) breach of fiduciary duty, (iii) fraud, (iv) misrepresentation, (v) nondisclosure

  • Elements of negligence: (i) duty, (ii) breach, (iii) causation, (iv) harm/dmgs

    • Expert testimony required

    • Proof of “cases within a case” to establish causation

    • Defense: Judgmental immunity lawyers not liable/required to predict unsettled areas of law.

• *Courts do not recognize malpractice claims in criminal cases, only IAC.

  • Stickland: Defendant must show that counsel (i) fell below objective reasonable standard of “reasonably effective assistance” and (ii) this prejudiced the judgment.

  • Nix: lawyers’ obligation to present or rectify perjury by criminal defendant.

Nonengagement Notices and Engagement Agreements

• 1. Nonengagement Letters [should include the following:]

  • (i) Inform the PC that the firm has decided NOT to undertake representation

  • (ii) Notify PC they may want to consider seeking advice of other counsel

  • (iii) Apprise PC that any action should be taken promptly because of SOL

• 2. Limited Engagement Letters

  • Purpose: (i) clarify expectations about what lawyers shall do, (ii) limit lawyer’s liability by excluding matters from engagement

  • Scope: exclude certain matters (ex. tort, worker’s comp claims)

  • Lawyer Limited Limitations for Malpractice:

    • Permissible if client has: (i) informed consent, (ii) reasonable under the circumstances (ABA 1.2(c))

      • Lerner: Stated in engagement letter that he had not conducted discovery/factual investigation + not able to render fairness opinion on agreement.

      • Barnes: failure to protect security interest (should have said representation ended with closing of sale)

      • Flatlow: Questionable, limiting representation to portion of a motion (probably not right)

  • Example of Limited Engagement Letter

    • This engagement is limited to the following matter [ID matter specifically]. The firm had not been engaged to represent the client in any other matter unless the firm and the client have entered into an engagement agreement covering that matter.

  • Additional NY Language (NYRPC 1.2, comment 6A)

    • Lawyer must adequately disclose (i) limitations, (ii) reasonably foreseeable consequences of limitation

    • Should point out if additional services are necessary or advisable then: (i) client may need to retain separate counsel which could (ii) delay, additional expense

• 3. Engagement Agreements (ABA 1.5b and c)

  • Rule 1.5(b): Duty to communicate (i) client scope, fees and expenses, (ii) before or within, (iii) reasonable time after commencement.

  • Rule 1.5(c): Must provide whether contingent fee computed BEFORE/AFTER expenses.

  • Provision Checklist:

    • Key Provisions:

      • ID of matter and limitation to matter

      • Legal fees

      • Expenses

      • Termination

      • Liens

      • Client’s File

      • Disputes/arbitration

      • Use of Technology

      • General Provisions

      • Other

    • Other Provisions

      • Hiring + fee division with co-counsel

      • COI

    • Other Issues to Discuss

      • General form of agreement

      • Authority of firm

      • Firm + Client’s respective obligations

    • NY Specific Provisions (NYCRR 1215.1)

      • Explanation of scope of legal services to be provided

      • Explanation of attorney’s fees to be charged, expenses + billing practices

      • Client right to arbitrate fee disputes (under Part 137)

      • Note: Lawyer may comply with requirement by entering into signed written retainer agreement that addresses the matters set forth above (NYCRR 1.15.1(c))

      • Exceptions in NYCRR 1215.2

    • Notable NY Differences

      • NY does not require client to sign contingent fee agreement, but must provide client with writing setting forth terms of agreement (NYRPC 1.5(c))

      • Fees in domestic relations matter must be in writing and signed (NYRPC 1.5(d)(5)

        • Limitations on security I domestic relationships matters (NYRPC 1.5(d)(5)(iii)

      • Required Statements of Clients: Rights and Responsibilities in both domestic relations matters and matters in general (NYRPC 1.5, comment 5A)

      • NY Judiciary Law (Art. 15) provisions apply to fee agreements

        • Ex. 474(a) – limitation on contingent fees in medical, dental, podiatric malpractice

      • Invalid Settlement unless...