Professional ResponsibilityLaw 115

Wed., Sept. 5

I. my general approach to the course

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II.the sources of the law of lawyering

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• Disciplinary law–Source: usually state supreme court–Governs activities in and beyond

practicing before court–E.g. Virginia Rules of Professional

Conduct

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• Federal court regulation of those practicing before federal bar–Governs activities in and beyond practicing

before federal court–BUT sanction is usually only dismissal from

federal bar

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• procedural law–e.g. Rule 11, disqualification, atty-client

privilege

• law having source in state police power–e.g. malpractice, agency, contract,

fraud• federal law–e.g. Sarbanes-Oxley

III.the odd character of the law of

lawyering

Spaulding v. Zimmerman (Minn SCt 1962)

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IV.Admission to Bar

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• Character and Fitness–General test: predict future violations

of discipinary rules–need not be criminal or even illegal

- eg plagiarism

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• pattern of violation of laws• single infraction revealing

dishonesty or abuse of position of trust• Neglect of financial

responsibilities• Failure to disclose requested

information in application!

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• Now you are a lawyer…

V.Standards for Professional

Discipline

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MR 8.4: It is professional misconduct for a lawyer to:

(a)violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another

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8.4 (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects

- Does not say conviction- Does not say in the practice of law- Look to standards for character and fitness

- Pattern, dishonesty, abuse of position of trust, neglect of financial responsibility

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8.4(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation

- Need not be illegal- Need not be in practice of law

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8.4(d) engage in conduct that is prejudicial to the administration of justice

- Need not be illegal, need not be related to your own legal practice

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• Multistate Practice

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• Unauthorized practice of law–Even if admitted in one state,

practicing in another state may submit one to discipline –Does not include representing self–Does include representation of

others outside of litigation•eg transactional work or providing

advice

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• Litigation–admission pro hac vice

Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court (Cal. 1998)

- Birbrower (NY) had a longstanding relationship with the Sandhu family (NY), a member of which was the sole shareholder of ESQ Business Services Inc. (NY)- ESQ entered into a software development and marketing agreement with Tandem Computers (Cal.)

- governed by California law and disputes to be arbitrated- later ESC California was incorporated with another member of the Sandhu family as the sole shareholder- both corporations hired Birbrower to resolve dispute with Tandem- Birbrower lawyers traveled to Cal. for interviews, consultation, negotiation and to initiate arbitration- case settled before arbitration

Cal. S.Ct. held Birbrower engaged in the unauthorized practice of law in Cal. - Birbrower could not collect fee- even if all work had been done by lawyers physically in NY- even if Birbrower had associated with local counsel- even if client had known that Birbrower was engaged in UPL in Cal.

What is practicing law?- state-by-state approach- ABA recommendation: “Application of legal principles and judgment with regard to the circumstances or objectives of a person that requires the knowledge and skill of a person trained in the law.”

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• Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law

(a)A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so

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• (b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

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5.5(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

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5.5(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1)are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter- In state counsel must actively

participate

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5.5(c)(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized

- Pro haec vice- Or reasonably expect it

- Includes depositions etc. in state other than where litigation takes place

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5.5(c)(3) are in or reasonably related to a pending or

potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission

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5.5(c)(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

• What does it “arise out of or reasonably related” mean?

- legal services that are ancillary to a particular matter in the lawyer's home state

• Comment 14: “The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction.”

• E.g. you represent a Californian in California concerning the signing of a contract with another Californian to build a hospital in Va

Comment 14: “A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted.”

you negotiate Cal. on behalf of a Va.client

- even when contract is signed in Cal., is governed by Cal. law, and disputes will be litigated in Cal.

not enough that out-of-state client approached you in Va. where you are licensed to practice

You represent a Californian in Va concerning Va accident. The Californian then asks you to represent her in Cal concerning transactional matter.

• The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.

- e.g. determining environmental liability of client that has plants in 20 states

- or a hostile takeover of an multi-state company by another multi -state company

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Disciplinary Jurisdiction

A lawyer violates a client confidence in Mass

he is admitted in Mass and Va

can only Mass discipline, or both Mass and Va?

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• 8.5(a) • A lawyer admitted to practice in this

jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs.

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• Assume a lawyer not admitted in Va violates a confidence in Va.

• Can Va’s bar discipline him?

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8.5(a) con’tA lawyer not admitted in this jurisdiction is also

subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.

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• Choice of Law• Let’s say that DC rules require one not to

violate client confidences concerning fraud upon the court, MD law says that you must violate confidences

• you are a lawyer admitted in MD bringing a case before a DC court (allowed to appear pro hac vice)

• Which law applies?

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• 8.5(b)(1)- for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise;

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• admitted in MD, not DC• DC has rule that no violation of client

confidences concerning ongoing fraud is permissible

• MD says must violate client confidences• in DC and DC client tells you of his fraud

occurring in DC• You say nothing• Disciplinary proceedings in MD• What law should it use?

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• 8.5(b)(2) • jurisdiction in which the lawyer’s conduct

occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.

• A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

Introduction to Lawyer-Client Relationship

• Once lawyer-client relation is established, many duties of disciplinary law (as well as other law, such as malpractice) arise– Confidentiality– Loyalty (conflict of interest)– Competence

• When is a lawyer-client relationship established?– Not in model rules– A question of state contract/tort law– No money needs to change hands!

Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980)

• Woman’s husband paralyzed from apparent malpractice of doctor

• Meets with lawyer (Jerre Miller)• She told him about what sparked her belief

that there was medical malpractice• he claimed that he said that he did not think

that they had a case but that he would discuss it with his partner

• if he changed his mind after talking to him, he would call her

• didn’t call back so she assumed no case

• Miller never said firm had no expertise in medical malpractice or that there was a 2 year statute limitations

• One year later she consulted an attorney again

• Found out statute of limitations had passed• Miller & firm held liable for legal malpractice

Restatement of the Law Governing Lawyers§ 14. Formation Of A Client–Lawyer Relationship

A relationship of client and lawyer arises when:(1) a person manifests to a lawyer the person's intent

that the lawyer provide legal services for the person; and either(a) the lawyer manifests to the person consent to do so; or(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or

(2) a tribunal with power to do so appoints the lawyer to provide the services.

• Togstad letters

• NOTE: Duties to prospective clients who never become actual clients– eg confidentiality– statute of limitations?

Flatt v. Sup. Ct., 885 P.2d 940 (Cal. 1994)- discussions with prospective client- lawyer said had a case and tentatively agreed to accept- did conflicts check and realized that target defendant of prospective client was a current client - withdrew- held: no duty to tell prosp. cl. about statute of limitations

scope of the representation

• Limiting the scope of representation– Limitation can be temporal (we’re through) as

well as by subject matter– Lawyer’s duties are related to the scope– E.g. Assume you have represented a client

concerning a store the client owns, but you learn from him that he has been in a car accident

– Do you commit malpractice for letting the statute of limitations run on his tort action?

• Limiting Scope of Representation Contractually

• MR 1.2(c) (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

• Comment [7] (on reasonableness of limitation)• If, for example, a client's objective is limited to securing

general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

- anonymous letter was sent to Enron's CEO, Kenneth Lay alleging violations of accounting standards and conflicts of interest by Enron officers- Lay and Enron's general counsel asked the Vinson & Elkins firm to investigate- Vinson & Elkins limited the scope of the representation, however, describing it as a "preliminary investigation" to determine "whether the [allegations in the letter] ... presented any new information ... that may warrant further independent investigation" - also agreed with Derrick and Lay that their investigation would not involve "second guessing" the accounting advice provided by Arthur Andersen and limited their sources of information to Enron officers and the relevant Anderson partners- after the interviews, the firm concluded that there was no need for further investigation. Anything wrong with limiting the scope of representation in this fashion?