Term
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Definition
SCOPE OF REPRESENTATION
(a) - client gets to decide - has the ultimate decision
(b) - just b/c you represent client, doesn't mean you endorse their views or activities
(c) - can limit the scope
(d) - can't advise client to engage in illegal matters (applies to future/ongoing, not past) but can discuss any consequences with them and counsel them - good faith effort to determine meaning of law
POLICY:
PRO-CLIENT: clients ultimately must make their own decisions as they are the ones who suffer the consequences; scope of rep. gives client the chance to get clarity on what lawyer will/won't do
PRO-LAWYER: lawyer serves to assist client, but doesn't need to take on his own personal views - lawyer also has an out from having to handle whole problem, if it's not reasonable |
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Term
| Purposes of the adversary system |
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Definition
-Each side must do its own investigation and arguing of evidence
-Each side having a bias lessens presumption of guilt - requires both to be ready
-Ensure justice, adequate representation, preserve presumption of innocence (criminal cases)- can do so with attorneys who act as advocates |
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Term
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Definition
Louisiana, 1991
-Atty reps executrix (wife) for Wallace's will
-RULE: 1.16(a)(3) requires atty to withdraw if he's discharged by his client
POLICY:
-Shouldn't have to keep an atty you don't like or trust - makes for tension and questions ethics of the legal relationship
-Client wants trump all else - balances inherent paternalism of attorney relationships |
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Term
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Definition
ADVISOR
-In representing a client, lawyer shall exercise independent pro judgment and give candid advice - can refer only to law but can also consider moral, econ, social and pol factors relevant to client's situation
POLICY:
Using other reference points makes the advice less technical and gives client more clarity |
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Term
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Definition
DECLINING OR TERMINATING REPRESENTATION
(a) - Lawyer shouldn't rep client when it would 1) violate the Rules; 2) their physical/mental condition materially impairs their ability; 3) they're discharged
(b) - Lawyer can withdraw when 1) can do so w/o materially adverse effect on client; 2) client keeps doing what lawyer reasonably sees as criminal/fraudulent things, using lawyer's services; 3)client HAS used services to promote crime/fraud; 4) lawyer fundamentally disagreees with/finds client's matter repugnant; 5) client fails to fulfill obligation to lawyer re: their services and was given reasonable warning; 6) rep will result in unreasonable financial burden on lawyer/unreasonably difficult case; 7) other good cause
(c) - lawyer must comply with law of notification of tribunal when terminating representation
(d) after termination, lawyer takes steps reasonably practicable to protect former client's interests (give reasonable notice, allow them time to hire new layer, give them all paperwork, refund advance $, etc.)
-Lawyer should only rep when competent, prompt, w/o conflict, and to the end
POLICY:
-Protects the client absolutely - don't want clients to keep lawyers they don't want |
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Term
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Definition
| Law student used moot court funds to bail his sister out of jail, paid it back after they found out - no criminal case/conviction - was not admitted to bar, offense was too recent - holds the burden to show he has improved moral character in the future |
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Term
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Definition
White supremacist wants to sit for the bar - doesn't pass C&F because he has shown that he might allow his beliefs to take action, esp on church's behalf - Hale says he wants to deport all blacks and Jews, was tried/convicted for conspiring in 2004 murder of fed judge
POLICY:
One thing to rep a Nazi, another thing to be one |
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Term
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Definition
MISCONDUCT
Professional misconduct for a lawyer to:
(a) violate/attempt to violate the Rules or knowingly assist another in doing so
(b) commit criminal act that reflects adversely on the lawyer's integrity/fitness
(c) engage in dishonest/fraudulent conduct
(d) engage in conduct that's anti-justice
(e) state/imply ability to influence improperly gov't agency/official
(f) knowingly assist judge in violating Rules or law
-Distinguish b/w personal and professional crimes (adultery is ignored, while dishonesty in general may show moral incapacity to practice law)
-Racial, sexual or religious bias can be indicative of anti-justice conduct
POLICY:
-Lawyers are administrators of justice - if they exhibit a bias that would make them less likely to carry this out, they shouldn't be allowed to practice
-Their responsibilities, due to connections to public officials, make them more accountable for public responsibility |
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Term
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Definition
REPORTING PROFESSIONAL MISCONDUCT
(a) lawyer who knows another lawyer violated the Rules that raises questions of that lawyer's integrity shall inform the appropriate authority
(b) same for knowing of a judge violating the Rules
(c) doesn't require disclosure of info otherwise protected by Rule 1.6 or info gained when in an approved lawyers assistance program
-Lawyer must exercise reasonable judgment in deciding what violations to report
POLICY:
-Self-regulates the profession
-Must hold one another accountable and any misconduct may indicate a problematic pattern if not taken care of right away |
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Term
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Definition
Foreign subsidiaries of the parties made payments to foreign gov'ts to secure business - main office directed counsel to interview the employees and advise them on acceptable conduct, then corp. voluntarily submitted report to SEC, which sent one to the IRS - attys refused to turn over docs, claimed A-C privilege and work-product doctrine
RULING: Atty-client privilege extends to corporations and lower-level employees - their actions could implicate the corp in legal difficulties - but only protects disclosure of communications, not facts by those who communicated with the attys |
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Term
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Definition
DILIGENCE
Lawyer shall act with reasonable diligence and promptness when repping a client
-Should pursue a matter even if inconvenient - must be committed and dedicated and a zealous advocate
-Control workload so each matter gets handled competently - NO procrastination
-Lawyer should take care of all matters for client until they're done - duties can be clarified in writing - see Rule 1.2 for scope of rep
POLICY:
Lawyer is responsible for providing their client with all available options as would come from repping them - client relies on lawyer's knowledge/skill so they need to keep them abreast of the situation |
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Term
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Definition
COMMUNICATION
(a) Lawyer shall 1) promptly inform client of any decision for which their informed consent is required, 2) reasonably consult about the means to accomplish client's goals, 3) keep client reasonably informed, 4) promptly comply with reasonable requests for info, 5) consult with client about any limitations on lawyer's conduct when client expects help that violates the Rules
POLICY: by keeping client in-the-know,waste less time/resources updating them later - and prevents misunderstandings with client
-Communication between lawyer and client is important to keep working relationship and prevent fractures in such relationships, as well as require lawyers to be diligent
-Must ultimately always act in client's interest - but can choose what to tell/withhold from client |
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Term
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Definition
CONFIDENTIALITY
(a) Lawyer shouldn't reveal info about rep of client unless client gives informed consent or impliedly authorized or allowed by
(b) lawyer reasonably believes
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent client from committing crime reasonably certain to harm financial interests/property of another by using lawyer's services;
(3) to prevent/mitigate/rectify injury as above;
(4) to secure legal advice about lawyer's compliance with these Rules;
(5) to establish claim/defense for lawyer in controversy b/w lawyer and client, to establish claim/defense against lawyer based upon client's conduct, or respond to allegations based on lawyer's rep of client; or
(6) to comply with other law/court orders.
-Can't reveal info relating to rep w/o client's informed consent
-CONFIDENTIALITY SURVIVES DEATH
POLICY:
-When clients know it's confidential, they share more facts which would help the lawyer make a better case
-Clients would be reluctant to seek atty help if it wasn't confidential |
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Term
| TOGSTAD v. VESELEY, OTTO, MILLER & KEEFE (1980) |
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Definition
-P's husband dies from medical malpractice - P goes to sue 14 months later, sees Atty Miller, who tells her he doesn't think she has a case and then she didn't follow up til a year later - SOL had run out - sued Miller, who said he told her they didn't do those cases - P said he didn't get back to her
RULING: Miller should've followed up, wrote non-engagement letter - it was reasonably foreseeable that P thought there was a relationship and that she would be harmed due to negligent advice |
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Term
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Definition
CONFLICT OF INTEREST - CURRENT CLIENTS
(a) Lawyer can't rep client if rep involves concurrent conflict of interest, which includes
(1) rep of one client will be directly adverse to another client; or
(2) high risk that rep of 1+ clients will be materially limited by lawyer's responsibilities to another client.
(b) ALLOWED EXCEPTIONS:
(1) lawyer reasonably believes he can provide competent and diligent rep to each client;
(2) it's not illegal;
(3) lawyer isn't representing two clients in the same suit;
(4) each client gives informed consent
-Loyalty and independent judgment are key to lawyer-client relationship |
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Term
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Definition
DUTIES TO PROSPECTIVE CLIENT
(a) Person who discusses possibility of forming lawyer-client relationship is a prospective client
(b) Any discussions in prospective relationship are CONFIDENTIAL
(c) Can't rep a client with interests materially adverse to prospective client in same/substantially related matter when lawyer has info that could be significantly harmful to that person in the matter - if disqualified, nobody in that lawyer's firm can rep either
(d) exceptions to rep when there's disqualifying info:
(1) both affected and prospective client have given informed consent in writing; or
(2) lawyer who rec'd info took reasonable measures to avoid exposure to more disqualifying info than was reasonably necessary to determine whether to rep prospective client; and
(i) disqualified atty is timely screened from participating and gets no fee; and
(ii) written notice promptly given.
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