Professional Responsibility

DeGraw

I. Introduction to Professionalism

A. “Can Ethics be Taught in Law School?” - Supplement Article

1. Most people are moral in face-to-face activities

a. This is not enough, however; also need to be moral in our societal relations (Act morally for the common good).

b. Acting for the common good is more difficult, however, b/c you don’t know who is being affected - if you don’t know this, then you can’t be certain how to act.

2. Bottom Line = people can learn ethics whenever.

3. Even though your duty as lawyer is to zealously represent your client, you must also be accountable to society by the actions you take.

B. ABA Modern Rules of Professional Responsibility

- Latest installment of self-governing body. Old set of rules called the “Code”.

1. Preamble - A lawyer’s responsibilities (p.8 of codebook).

2. ABA MR (Model Rule) 8.4 Misconduct

- What our profession views as immoral conduct for a licensed attorney.

- Comments following the rule make it clearer.

3. ABA MR 8.5 - Disciplinary Authority and Choice of Law

(A) Disciplinary Authority - Regardless of where ethical misconduct occurs, lawyer is subject to the jurisdiction of where he is, but also can be sanctioned in any state (even where he isn’t licensed).

- 1993 - ABA thought this was too tough, so they put in ...

(B) Choice of Law - rules applied are those where the Ct. sits if conduct involved in that Ct.; if conduct didn’t occur in that Ct., then lawyer is subject to the jurisdiction where :

(1) lawyer previously practices, or

(2) where the predominant effect of the actions occurred.

C. TX Disciplinary Rules of Professional Conduct (p. 23 of supp.)

- Similar to ABA preamble, but goes beyond

- Ex. Zealous representation ¹ scorched earth policy (can’t use any tactics to get your clients an advantage).

- Remember, the ABA rules are merely a guide ® they don’t have any weight until a state adopts them; merely advisory.

1. TX 8.04 - Misconduct - somewhat diff. than MR

- Picks up where ABA rule leaves off - more changes made.

- has 6 more rules than ABA (7-12)

- Unlike MRs, TX doesn’t have a rule against saying bad things (??).

2. TX 8.05 - Jurisdiction

- If admitted to practice in TX, lawyers are subject to our state discipline.

- If there are problems in other jurisdictions, then TX Cts. can still get you:

(1) If there’s an 8.04 violation, or

(2) If another state disciplines you.

D. Defining Professionalism

1. Pound’s defn.

The term refers to a group ... pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.

2. Freidson’s defn. - 4 things that make a job a “Profession”

1. That its practice requires substantial intellectual training and the use of complex judgments.

2. That since clients cannot adequately evaluate the quality of the service, they must trust those that they consult. (Trust = fiduciary relationship)

3. That the client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good.

4. That the occupation is self-regulating - organized in a way as to assure the public and the courts that its members are competent, don’t violate their client’s trust, and transcend their own self-interest.

II. The Lawyer-Client Relationship

A. What is it?

1. The relationship must be determined beforehand - can’t be liable to a client for malpractice if they aren’t really your clients.

2. Lawyers are liable to:

a. Clients - If you agree to represent a client, then your liability to them is a duty to do something for pay. Often, clients will want you to do something borderline illegal. Lawyers aren’t obligated to do so, despite the demands of clients. If they request you to do an illegal act, then it’s easy to spot and refuse. Harder to choose when they only ask you to do something immoral.

b. Judicial system - Lawyers are obligated as officers of the Ct. to act in certain manner. Ex.-Not supposed to “Rambo” someone into the ground.

c. Society - Lawyers are the key to the system.

d. Themselves and their family - This refers to self-interest. This liability comes last. Although remember the old saying, “In a home w/o bread, ethics is not an appropriate dinner topic.”

B. The Practice of law regulated different by each state.

In most states:

Executive (none)

Legislature (inherent) Judicial (delegated)

- Executive has no power to regulate lawyers

- Legislature has inherent, law-making power to regulate. In most states, however, Leg. delegates power to the Judiciary.

* Leg. retains:

1. Taxing power on lawyers (TX)

2. Regulate lobbying

3. Determination of who practices in front of state administrative agencies

4. Power of restraint - keep folks from practicing law who’re not lawyers

5. Barratry - no ambulance chasing

6. Power over Ct. jurisdiction - which Cts. get which cases

7. Day to Day operation of legal profession t State Bar. TX has a mandatory bar association.

- Besides the delegating power, Judiciary also has some inherent power (licensing attorneys, discipline, etc.).

C. The Client

1. The lawyer is the client’s agent - agency rules apply.

- Agency laws differ according to state.

2. Lawyer is also the client’s fiduciary - client’s trust rests w/them.

- Fiduciary role exceeds any responsibility you owe as an agent.

3. Lawyers may also be a trustee, but this isn’t as common - most lawyers don’t want to be trustees.

4. Lawyer can also be a govt. agent.

D. When is a Client a Client?

1. This is a question of law, not ethics.

2. Money need not change hands to form a relation, but this is usually a good indication when it does.

3. Courts are beginning to recognize that such a relation exists when the client reasonably believed under the circumstances that a relation existed (especially if confidential info. is exchanged).

- If you have a client, and your actions have been muddled from original plan, or your actions have not been clearly defined, you’ll likely get into trouble. This is b/c the lawyers actions that fall w/in the scope of the authority given by the client are attributed to the client.

- Only resource for client at this point = malpractice action. Ct. won’t rectify the situation b/c of lawyer ignorance/mistake.

- Taylor v. Illinois - Taylor, as attorney, refused to obey state discovery laws. Client is screwed, b/c attorney has full authority to manage the case t Client must accept the consequences of lawyer’s actions. “Litigant chooses counsel at his peril”.

- Cotto v. US - Failure to prosecute a claim is a decision (or mistake) made by the lawyer, and is attributed to the client too. Acts or omissions are visited customarily upon the client in a civil case.

- By hiring lawyer, client necessarily delegates authority to speak/act for him. If lawyer acts foolishly, client may still be bound, but may be able to sue for damages.

- Togstad v. Vesely, et al - Client went to lawyer about med mal case. Came down to each side saying a diff. story about what happened regarding whether or not lawyer accepted the case or not. Jury said he either did or gave the impression of that to his client. Why? She trusted lawyer - someone w/superior knowledge. The Ct. put an affirmative duty on the lawyer to tell client about SOL, which had run by then and barred claim. May also have a duty to say whether has or hasn’t taken the claim.

Rule = Must be very careful w/your relationships - You may take on a client w/o meaning to if it’s reasonable for the client to believe that you’re their lawyer.

- 3 Periods of the Lawyer/Client Relationship

1. Pre-representation - very few duties involved. Must be careful here though b/c this can easily turn into a client relationship.

- Confidentiality does arise even this early in the process

2. Representation - lots of duties here.

- Duties arise only when there is a client.

- Have to make sure there is a dividing period between pre-rep and rep. periods.

- In Togstad, the lawyer could have done things to ensure that a relationship didn’t arise w/o him knowing:

a. Tell her he’s not going to accept the case

b. Investigate the merits

c. Don’t give her opinions on the case

d. Advise her on the SOL

e. Follow-up letter saying that their business together was ended

3. Post-representation - Lawyer must send the follow-up letter saying that this concludes their business together.

- People who were clients will always be former clients. Therefore you will always have issues regarding their confidentialties, conflicts of interest, etc.

- If don’t send that follow-up letter, then clients may feel that they are still a client, so your attorney-client duties continue to exist.

4. Other issues of law that arise in Pro-Res.

a. Agency law - Lawyer is a special type of agent. Have both high duties and responsibilities. Lawyers also usually have fiduciary responsibilities as well, and sometimes that of a trustee.

- Test for agency = What would a prudent lawyer do? (The avg. lawyer).

* When a client is “bound” by his lawyers actions (e.g. in court), this is pure agency law.

* The authority to act ends when the client terminates the relationship.

- Test for fiduciary = much higher than agent. This makes it much easier for a client to prove a breach.

- Trustees have a high standard, but not nearly as high as that of fiduciary.

b. Malpractice

- In malpractice cases, normally lawyer has obligations to client that arise from either Breach of K or Tort/Negl.

* Most are brought under Breach - the SOL is longer and it’s an easier burden.

* Proving Negl. - In Togstad, lawyers brought in experts who testified. Once you show ordinary negl. (ordinary lawyer would have done otherwise), must also show proximate cause (in addition to the duty that was already shown to get to this point). PC is also proven w/ experts.

* If there is a breach of a fiduciary duty, then it is almost implied that PC is found.

- In majority of jurisdictions, lawyer must be in privity (have a duty) to a 3rd person that enables them to sue; TX doesn’t follow the majority - there must be a separate duty to the 3rd party.

- Exception - breach of fiduciary duty to a 3rd party will have standing (TX and all other states follow). Third party fiduciary cases are rare.

D. Duties within the Attorney-Client Relationship

1. Competence (MR 1.1)

- Very tough to prove.

- Always a supplementary charge to another claim by a client.

- Always arises during malpractice claims.

- Usually a fact question.

- Competence Standard = prudent lawyer in that jurisdiction act?

* Exception = If lawyer holds himself out as a client, then he’ll be held to higher standard. Specialist standard doesn’t rise to level of fiduciary.

a. Fiduciary Duties - competence standards in this area governed by states.

- There is agreement/conformity about which duties are fiduciary.

- Unique position of trust, which means that duty applies at the time the person becomes a client until they’re no longer.

- If lawyer commits an act that gives the client a COA against him, lawyer has obligation to turns himself over and reveal, b/c this duty is so high.

- No need for client to prove what they would have received competent advice - fact that fid. duty was breached is enough.

- Burrow v. Arce - Fiduciary relationship exists between attorneys and clients as matter of law. Because relationship between attorney and client is highly fiduciary in nature, dealings between client and attorney require utmost good faith, and dealings, intentions and intendments between attorney and client are subject to exacting scrutiny.

2. Diligence (M.R. 1.3)

- Lawyer must perform duties w/o delay. To the extent that the delay is undue, lawyer is subject to liability.

- Diligence is not a fiduciary duty.

- Diligence complaints aren’t usually malpractice, but occur in disciplinary actions and sanctions; Actions brought by clients, opposing parties, or judges.

- Duty arises the moment you accept a client and continues until task complete.

- When matter concluded, send that follow-up letter to “end” relationship. Most lawyers don’t do this, b/c it’s a symbolic “severing” of ties. Want to make it seem that the clients are still current. Much easier, however, in long run - don’t have to worry so much about conflicts of interest. Also alerts to any lack of diligence issues - client will call you to tell you otherwise if necessary.

- Loyalty - a related topic, which is a fiduciary duty. Lawyer must be free of conflicting duties ® aids in being more diligent. This is a conflict of issue matter as well.

3. Duty to Inform and Advise (Communicate) (M.R. 1.4)

- Applies to any area where client has final authority.

- Lawyer must advise clients of any matter that may affect their final decision.

- Inform/Advise/Communicate = means in a way that the client can understand.

- Nichols v. Keller - Nichols (P) was injured on job. Hired Keller to pursue workman’s comp. claim. D didn’t advise P that he might also have civil claims against others (manufacturers of defective products). P learned of civil claims after SOL ran and sued. Tr. Ct. gave SJ to D. P appealed.

Held - liability can exist b/c attorney fails to give advice. Attorney should advise even when client doesn’t ask about such matters. Attorney need not advise client of every possibility that may arise, but only those that may result in adverse consequences if not considered.

- D could have possibly gotten out of this mess by saying that P should go see a specialist, if the matter wasn’t a matter of expertise.

- Requirement to clarify falls upon lawyer.

4. Duty of Confidentiality (M.R. 1.6, TX 1.05) - significant diff. in MR & TX

- As lawyer, have to determine what happens if info. we have is privileged under the rules of evidence (Evidentiary Protection), and which is privileged under the rules of ethics (Ethically Protected).

- Ethical protection is much larger - think of it as two concentric circles, with ethical circle almost completely surrounding evidentiary protection (bit of evidentiary protection escapes).

- The two bodies have different origins

* Evidentiary privilege - developed through Ct. and statutory material

* Ethical privilege - drafted mostly by attorneys and adopted by states.

a. Evidentiary Protection (Attorney/Client Privilege) - involves person who seeks legal advice from lawyer acting on behalf of client for indeterminate period.

- The client may, and the lawyer must evoke a privilege of confidentiality not to testify regarding confidential info. to lawyer or govt. Exception = if client expressly or impliedly waives the privilege.

- Policy for Privilege = want clients to tell lawyers everything, so they can act in client’s best interests.

- Ct. and Govt. make exceptions when privilege can’t be taken:

1. In furtherance of a crime or fraud

2. Claimed through a deceased client

3. Defense to breach of duty suit against lawyer

4. Document stating/serving joint clients