BlogWell Bay Area Social Media Ethics Briefing, presented by Andy Sernovitz
Goals: The students will 1. Continue with their study of case briefing. 2. Learn about legal ethics...
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Transcript of Goals: The students will 1. Continue with their study of case briefing. 2. Learn about legal ethics...
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 . . .