Legal Ethics for Social Services Attorneys Institute of Government 2006.

Legal Ethics for Social Services Attorneys

Institute of Government

2006

Problem #1


2006

Institute of Government © 2006 3

Rule 1.3 Diligence

Lawyer must act with reasonable diligenceLawyer’s workload must be controlled

So each matter can be handled competently


Rule 1.1 Competence

Lawyer shall not handle legal matterKnows or should know not competent

Without associating competent lawyer


Rule 1.1

CompetenceLegal knowledge, skill, prep & thoroughness

reasonably necessary for representationAdequate inquiry & analysis of facts & lawUse of methods & procedures employed by

competent practitionersDepends on what is at stake, complexity, etc.


Rule 1.16

Lawyer may not represent clientDecline or withdraw from representation

If representation will violate RPCLawyer should decline representation

If can’t provide competent representation

Problem #2


2006


Rule 1.1 Competence

Lawyer shall not handle legal matterKnows or should know not competent

Without associating competent lawyer


Rule 1.1

CompetenceLegal knowledge, skill, prep & thoroughness

reasonably necessary for representationDepends complexity, experience, etc.Special training & prior experience not

always requiredOK to if lawyer can obtain competence via

reasonable preparation


Rule 1.16

Lawyer may not represent clientDecline or withdraw from representation

If representation will violate RPCLawyer should decline representation

If can’t provide competent representation

Problem #3


2006


Rule 4.2

Lawyer shall not communicateDirectly or through acts of anotherWith person represented by another lawyer

If actually knows person representedEven if represented person consents

About subject of representationIn representing client


Proposed 2005 FEO 5

Rule 4.2 doesn’t apply to all employees“Key” employees or officials

Elected officials & managersAuthority to “bind” entityDirect or consult with lawyer on matterParticipate substantially in representation


Rule 4.2

ExceptionsOther lawyer consentsLegal authority or court order OK to talk to elected official

In writing with copy to government lawyerOrally with notice to government lawyerIn course of legal proceeding


Rule 4.2

ExceptionsOK to encourage client to communicate

With represented person to resolve matterDon’t need opposing attorney’s consent

Talk with witnesses (except physician)


Rule 3.4

Lawyer shall not request personOther than client

Or client’s agent or managerial employeeTo refrain from voluntarily providingRelevant info to opposing party

OK to advise witness of legal rightsUnless witness’ interest adverse to client

Rule 4.3

Problem #4


2006


Rule 4.2

Lawyer shall not communicateDirectly or through acts of anotherWith person represented by another lawyerAbout subject of representation

In representing clientWithout other lawyer’s consent


RPC 249 (1997)

Child represented by GAL & attorney advocate in juvenile proceedingParent’s attorney may not interview childDistrict attorney may not interview childDA may not instruct sheriff to interview childDSS attorney may not interview child

Problem #5


2006


Rule 1.10 Imputed Conflict

While lawyers are associated in firmNone shall represent clientIf any one alone would be disqualified due to

conflict of interest under Rule 1.7 or 1.9Except disqualification based on personal

interest that doesn’t materially limit representation


Rule 1.7 Concurrent Conflict

Lawyer shall not represent clientIf concurrent conflict of interest exists

Representation of one client “directly adverse” to another client

Representation of one client “materially limited” by responsibilities to another client (or former client, third party, or personal interest of lawyer)


Rule 1.7 General Rule

Lawyer may not represent client Against another client in same matterAgainst another client in unrelated matter

Unless …


Rule 1.7

ExceptionLawyer reasonably believes she can provide

competent representation to each client, andNot prohibited by law, andNo claim by one client against other in same

proceeding, andEach client gives informed consent

Confirmed in writing

Problem #6


2006


Rule 1.9

Lawyer who formerly represented clientShall not represent another client

Whose interest is adverse to former clientIn same or substantially related matterUnless former client gives informed consent



Rule 1.9

Substantially related mattersSame transaction or legal dispute, orSubstantial risk that info obtained in prior

representation of former clientWould advance second client’s position in

subsequent matter


Rule 1.6

Lawyer shall not reveal infoAcquired during relationship with clientWithout client’s informed consent

Or permitted by RPC

Former clientDuty of confidentiality continues after

lawyer-client relationship terminated


Rule 1.9

Lawyer who formerly represented clientShall not reveal info relating to former

representation except as allowed by RPCShall not use info to disadvantage of former

client unless info generally known or except as allowed by RPC

Same rule if lawyer’s former firm Formerly represented client


Rule 1.9

Lawyer shall not represent personIf lawyer’s firm represented client whose

Interest is materially adverse to personIn same or substantially related matter andLawyer has actual knowledge of

Confidential info (Rules 1.6 & 1.9(c))Unless former client gives informed consent


Problem #7


2006


Rule 1.7 Concurrent Conflict

Lawyer shall not represent clientIf concurrent conflict of interest exists

Representation of one client “directly adverse” to another client

Representation of one client “materially limited” by responsibilities to another client (or former client, third party, or personal interest of lawyer)


Rule 1.7

ExceptionLawyer reasonably believes she can provide

competent representation to each client, andNot prohibited by law, andNo claim by one client against other in same

proceeding, andEach client gives informed consent



Rule 1.6

Lawyer shall not reveal infoAcquired during relationship with clientWithout client’s informed consent

Or permitted by RPC

Former clientDuty of confidentiality continues

After lawyer-client relationship terminated


Rule 1.18 Prospective Client

Lawyer shall not use or reveal infoObtained from prospective clientEven if no attorney-client relationship ensuesUnless permitted under Rule 1.9


Rule 1.9

Lawyer who formerly represented clientShall not reveal info relating to former

representation except as allowed by RPCShall not use info to disadvantage of former

client unless info generally known or except as allowed by RPC

Same rule if lawyer’s former firm Formerly represented client

Problem #8


2006


Rule 2.1 Advisor

Lawyer shall render candid adviceExercise independent professional judgment

May provide non-legal adviceMoral, social, political, economic factors

Relevant to client’s situation

May give advice without being askedIf doing so is in client’s best interest


Rule 1.2

Lawyer shall abide by client’s decisionsRegarding objectives of representation

If lawyer & client disagree regarding meansConsult & seek mutually agreeable resolutionIf disagreement can’t be resolved

Client may discharge lawyerLawyer may withdraw as per Rule 1.16(b)(4)


Rule 1.16

Lawyer may withdraw from representationIf client insists on taking action That lawyer considers repugnant, imprudent,

or contrary to lawyer’s advice, or With which lawyer fundamentally disagrees

If lawyer withdrawsMust give reasonable notice to clientTake steps to protect client’s interest


Rule 1.13 Organization Client

Lawyer retained by organizationRepresents organization

Acting through duly authorized constituents

Lawyer generally must acceptDecisions made by authorized constituents

Even if utility or prudence is doubtful


Rule 1.13

Lawyer shall take reasonable steps To protect organization’s best interest

Ask for reconsiderationTake to higher authority

If officer’s or employee’s actionsViolate law or legal obligation to organizationRisk substantial injury to organization

Legal Ethics for Social Services Attorneys


2006

Legal Ethics for Social Services Attorneys Institute of Government 2006.

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Transcript of Legal Ethics for Social Services Attorneys Institute of Government 2006.