Professional Responsibility 2013
Chapter 2-2
Terminating L-C Relationship
• http://www.youtube.com/watch?v=itj9sKHTT
8g
Terminating Lighting Round - I
• What Rule section requires termination of l-c
relationship?
– Rule 1.16 (a)
• What Rule section permits termination?
– Rule 1.16 (b)
• What Rule section describes the court’s role?
– Rule 1.16 (c)
•
•
•
Q1 Attorney Alpha, a sole practitioner, recently suffered a heart attack and was
advised that she could not return to work for six months. Alpha delivered all of her
clients' files to Attorney Beta, who is also a sole practitioner. Beta agreed to review
each client's file promptly, take any action necessary to protect each client's
interests, and treat the information in the files as confidential. Alpha then wrote
her clients, advising each client that the client's file had been delivered to Beta for
review and for any action necessary to protect the client's interest, and that the
client was free to select another lawyer. Alpha knows that Beta is a competent
attorney. Beta did not accept the file of any person whose interests were, or could
be, adverse to the interests of any of Beta's own clients. Was it proper for Alpha to
deliver the files to Beta for review?
A. Yes, because Alpha knows that Beta is competent to protect the clients'
interests.
B. Yes, because Beta agreed to treat the information in the files as confidential.
C. Yes, because given her medical condition, Alpha's delivery of the files was
necessary to protect the client's interests.
D. No, because Alpha did not obtain the prior consent of each client whose file
was delivered to Beta.
• What would the text of the Rules suggest?
– Rule 1.16 (a) (2) must withdraw (“lawyer’s physical or mental
condition materially impairs the lawyer’s ability to represent the
client”
– Rule 1.6 must keep confidential client information.
• Consider this provision that is not in the text of the Rules (or this
edition of the Casebook):
– Rule 1.3 Diligence
– Comment [5] To prevent neglect of client matters in the event of a sole
practitioner's death or disability, the duty of diligence may require that
each sole practitioner prepare a plan, in conformity with applicable
rules, that designates another competent lawyer to review client files,
notify each client of the lawyer's death or disability, and determine
whether there is a need for immediate protective action.
Q2
• Attorney is employed in the legal department of Electco, a public
utility company, and represents that company in litigation. Electco
has been sued by a consumer group that alleges Electco is guilty of
various acts in violation of its charter. Through its general counsel,
Electco has instructed Attorney not to negotiate a settlement but to
go to trial under any circumstances since a precedent needs to be
established. Attorney believes the case should be settled if possible.
Must Attorney withdraw as counsel in the case?
• Yes, if Electco is controlling Attorney's judgment in settling the case.
Yes, because a lawyer should endeavor to avoid litigation.
No, if Electco's defense can be supported by a good faith argument.
No, because as an employee, Attorney is bound by the instructions
of the general counsel.
• What are the Rule provisions for mandatory termination of the
representation?
– Rule 1.16 (a) Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced, shall
withdraw from the representation of a client if:
– (1) the representation will result in violation of the rules of
professional conduct or other law;
– (2) the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client; or
– (3) the lawyer is discharged.
• How does they apply to this problem?
• What if Electco’s claims were frivolous?
– FRCP Rule 11
– Rule 3.1
Q3
•
•
•
•
An Attorney represents a Client in commercial litigation that is scheduled to go to
trial in two months. Over the past several weeks, the Client has disagreed with
almost every tactical decision that the attorney has made. Frustrated, the Attorney
finally said to the Client that the Attorney didn't like the way the Client was
handling the lawsuit and perhaps the Client should get another lawyer. The Client
was upset at the suggestion and accused the Attorney of trying to get out of the
case. Reasonably believing that he could no longer work effectively with the Client,
the Attorney sought the client's permission to withdraw from the representation,
and the Client reluctantly agreed. After giving the Client sufficient notice to obtain
replacement counsel, the attorney requested the Court's permission to withdraw
from the litigation, but the Court denied the request. May the attorney withdraw
from the representation?
Yes, because the Client agreed, and the Attorney gave the client sufficient notice to
obtain replacement counsel. Yes, because the Client had made it unreasonably
difficult for the Attorney to carry out the representation effectively.
No, because the Court denied the Attorney's request to withdraw.
No, because the Attorney's withdrawal would cause material prejudice to the
client, and the Client's agreement was not voluntary.
• What Rules govern the answer to this problem?
• Rule 1.16(b) and (c)
– Rule 1.16 (b) – may
– (b) Except as stated in paragraph (c), a lawyer may withdraw from
representing a client if:
– (1) withdrawal can be accomplished without material adverse effect on the
interests of the client;
– (2) the client persists in a course of action involving the lawyer's services that
the lawyer reasonably believes is criminal or fraudulent;
– (3) the client has used the lawyer's services to perpetrate a crime or fraud;
– (4) the client insists upon taking action that the lawyer considers repugnant or
with which the lawyer has a fundamental disagreement;
– (5) the client fails substantially to fulfill an obligation to the lawyer regarding
the lawyer's services and has been given reasonable warning that the lawyer
will withdraw unless the obligation is fulfilled;
– (6) the representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client; or
– (7) other good cause for withdrawal exists.
• (c) A lawyer must comply with applicable law
requiring notice to or permission of a tribunal
when terminating a representation. When
ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding
good cause for terminating the
representation.
Q4
• Attorney experience several instances when clients failed to pay their fees
in a timely manner, but it was too late in the representation to withdraw
without prejudicing the clients. To avoid a recurrence of this situation,
Attorney had drafted a stipulation of consent to withdraw if fees are not
paid according to the fee agreement. She proposes to have all clients sign
the stipulation at the outset of the representation. Is it proper for Attorney
to use the stipulation to withdraw from representation whenever a client
fails to pay fees?
• A. Yes, because a lawyer may withdraw when the financial burden of
continuing the representation would be substantially greater than the
parties anticipated at the time of the agreement.
• B. Yes, because the clients consented to the withdrawal in the stipulation.
• C. No, because a client's failure to pay fees when due may be insufficient
in itself to justify withdrawal.
• D. No, unless clients are provided an opportunity to seek independent
legal advice before signing the stipulation.
• What Rule provisions govern the answer to this problem?
– Rule 1.16 (b) and (c)
Rule 1.16 (b)
– Rule 1.16 (b) – may
– (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a
client if:
– (1) withdrawal can be accomplished without material adverse effect on the
interests of the client;
– (2) the client persists in a course of action involving the lawyer's services that the
lawyer reasonably believes is criminal or fraudulent;
– (3) the client has used the lawyer's services to perpetrate a crime or fraud;
– (4) the client insists upon taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement;
– (5) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;
– (6) the representation will result in an unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by the client; or
– (7) other good cause for withdrawal exists.
Rule 1.16 (c)
• (c) A lawyer must comply with applicable law
requiring notice to or permission of a tribunal
when terminating a representation. When
ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding
good cause for terminating the
representation.
And, btw, Rule 1.16 (d)
• (d) Upon termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a
client's interests, such as giving reasonable notice to the
client, allowing time for employment of other counsel,
surrendering papers and property to which the client is
entitled and refunding any advance payment of fee or
expense that has not been earned or incurred. The lawyer
may retain papers relating to the client to the extent
permitted by other law.
• Comment [9] Even if the lawyer has been unfairly
discharged by the client, a lawyer must take all reasonable
steps to mitigate the consequences to the client. The
lawyer may retain papers as security for a fee only to the
extent permitted by law. See Rule 1.15.
Q5
• Rule 1.16 implements the dominant
conception that the lawyer should serve as a
"neutral partisan" for her client.
A. True
• B. False
– Rule 1.16 (b) – may
– (b) Except as stated in paragraph (c), a lawyer may withdraw from
representing a client if:
– (1) withdrawal can be accomplished without material adverse effect on the
interests of the client;
– (2) the client persists in a course of action involving the lawyer's services that
the lawyer reasonably believes is criminal or fraudulent;
– (3) the client has used the lawyer's services to perpetrate a crime or fraud;
– (4) the client insists upon taking action that the lawyer considers repugnant or
with which the lawyer has a fundamental disagreement;
– (5) the client fails substantially to fulfill an obligation to the lawyer regarding
the lawyer's services and has been given reasonable warning that the lawyer
will withdraw unless the obligation is fulfilled;
– (6) the representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client; or
– (7) other good cause for withdrawal exists.
Terminating Lightning Round II
• What are the three situations where a lawyer must
withdraw?
–
–
–
–
Rule 1.16 (a)
Violation of rules or law
Lawyer disability
Lawyer discharge
• When can a lawyer withdraw for no reason?
– “without material adverse effects on the interests of the
client”
• Why is a good reason under Rule 1.16 never sufficient
when a matter is in court?
– Rule 1.16 (c): Need court permission.
Terminating Lightning Round II-2
• To withdraw, must a lawyer know that “a client persists in a [criminal or
fraudulent] course of action involving the lawyer’s services?
– No. May withdraw with reasonable belief. Rule 1.16 (b)(2) (“the client
persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent”)
• Must a lawyer withdraw where “the client has used the lawyer’s services
to perpetrate a crime or fraud.”
– No. May. Rule 1.16 (b)(3) (“the client has used the lawyer's services to
perpetrate a crime or fraud”)
• Is a lawyer ever required to withdraw where client is engaged in fraud?
– Rule 1.16 (a) Except as stated in paragraph (c), a lawyer shall not represent a
client or, where representation has commenced, shall withdraw from the
representation of a client if:
– (1) the representation will result in violation of the rules of professional
conduct or other law;
– E.g., Rule 1.2 (d) A lawyer shall not . . . assist a client, in conduct that the
lawyer knows is criminal or fraudulent . . . .
Terminating Lighting Round II-3
• On what grounds can a lawyer withdraw if she find
herself in disagreement with her client?
– Rule 1.16 (4) “repugnant” “fundamental disagreement”(6)
“rendered unreasonably difficult (7) “other good cause”
• When may a lawyer withdraw when a client does not
pay?
– May. Rule 1.16 (5) client fails substantial obligation and
receives reasonable warning, (6) “unreasonable financial
burden”
• What is the most obscure provision governing
termination?
– Rule 1.3, Comment 5
Chapter 2-IV
Chapter 2-IV
Lawyer Competence
Judge to Lindsay Lohan
Competence Lightning Round I
• What Rule states the ethical duty of competence?
– Rule 1.1
• What Rules state the lawyer’s obligation to ensure the
competence of colleagues and coworkers?
– Rule 5.1, 5.3
• What determines the legal duty of competence?
– Common law of malpractice
• What Rule governs whether a lawyer may limit or settle
malpractice liability?
– Rule 1.8 (h)
• What is the leading case that states the test for ineffective
assistance of counsel?
– Strickland, interpreting constitutional right to counsel
•
•
Q1Attorney represented Plaintiff in an action against several defendants. The
retainer agreement provided that Plaintiff would pay all costs and expenses of
litigation and would, on demand, reimburse Attorney for any costs or expenses
advanced by Attorney. After serving process on two defendants, Attorney had
difficulty locating and serving the remaining defendants. Plaintiff approved the
hiring of an investigator to locate and serve the defendants, and Attorney
advanced the costs for the investigator. When Attorney asked Plaintiff for
reimbursement, Plaintiff refused to pay. Attorney then told Plaintiff that Attorney
would do no more work on the case until Attorney was reimbursed for the amount
advanced. Thereafter, one of the defendants filed a counterclaim that required a
responsive pleading within thirty days. Because Attorney had not been paid,
Attorney permitted the time to respond to the counterclaim to expire without
filing a responsive pleading, and a default was entered on the counterclaim. Later,
Plaintiff reimbursed Attorney for the costs Attorney had advanced, and Attorney
was successful in having the default on the counterclaim set aside. The case was
tried, and Plaintiff prevailed on Plaintiff's complaint, and the counterclaimant
recovered nothing. Is Attorney subject to discipline for not initially filing a
responsive pleading to the counterclaim?
Yes, because Attorney neglected Plaintiff's cause.
Yes, unless Attorney had asked leave of court to withdraw.
No, because Plaintiff breached the agreement to reimburse Attorney.
No, because Plaintiff did not sustain any prejudice as a result of Attorney's action.
• Can the lawyer stop working b/c of client’s failure to pay?
– Review Rule 1.16
• What Rule governs this problem? How would you apply it?
– Rule 1.1
– A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation.
• What would the result be under the malpractice standard?
– Restatement §48
– duty of care, failure of care, legal cause of injury
Q2
• Witness was subpoenaed to appear and testify at a state legislative
committee hearing. Witness retained Attorney to represent her at the
hearing. During the hearing, Attorney, reasonably believing that it was in
Witness's best interest not to answer, advised Witness not to answer
certain questions on the grounds that Witness had a constitutional right
not to answer. The committee chairperson directed Witness to answer and
cautioned her that refusal to answer was a misdemeanor and that criminal
prosecution would be instituted if she did not answer. Upon Attorney's
advice, Witness persisted in her refusal to answer. Witness was
subsequently convicted for her refusal to answer. Is Attorney subject to
discipline?
• Yes, because his advice to Witness was not legally sound.
Yes, because Witness, in acting on Attorney's advice, committed a crime.
No, if the offense Witness committed did not involve moral turpitude.
No, if Attorney reasonably believed Witness had a legal right to refuse to
answer the questions.
• Discipline refers to rules or malpractice?
• What authority governs?
– Rule 1.1
– A lawyer shall provide competent representation
to a client. Competent representation requires the
legal knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.
• Result under malpractice law?
• Q3 A sole practitioner was appointed to represent a criminal defendant on
appeal. A recently admitted lawyer who shared office space with the sole
practitioner agreed to write the brief if the sole practitioner would pay
him one-half of the statutory fee. The defendant agreed to the
arrangement in writing, after a full consultation. The recently admitted
lawyer entered an appearance as co-counsel for the defendant and, with
the sole practitioner's knowledge, applied for and received several
extensions of time to file the brief. Subsequently, the appellate court
dismissed the appeal for failure to pursue the appeal. A third lawyer was
later appointed to represent the defendant, whose conviction was
affirmed after the appeal was reinstated. Is the sole practitioner subject to
discipline?
• Yes, because he neglected the defendant's case.
Yes, because he shared fees with the recently admitted lawyer.
No, because the defendant agreed in writing to the co-counsel
arrangement.
No, because the affirmance by the appellate court indicated that the
defendant's appeal was without merit.
• Rule 1.1
• See also Rule 1.5 (e) (not in Casebook)
• A division of a fee between lawyers who are not in the
same firm may be made only if:
• (1) the division is in proportion to the services
performed by each lawyer or each lawyer assumes
joint responsibility for the representation;
• (2) the client agrees to the arrangement, including the
share each lawyer will receive, and the agreement is
confirmed in writing; and
• (3) the total fee is reasonable.
•
•
•
Q4 An attorney was recently admitted to practice and was hired as a new associate of a
large law firm. The attorney was working late one night when he received a telephone
call from his cousin. The cousin said that he was calling from the police station because
he had just been arrested for possession of cocaine with intent to distribute. He was
permitted to make only one phone call, and the attorney was the only one he knew.
The attorney responded that he had no criminal law experience and that his firm did
not handle criminal cases. Nevertheless, the cousin pleaded with the attorney to come
to the police station and See what he could do to get him out on bail. The attorney
replied that he would do what he could. The attorney went to the police station and
used what information he recalled from his criminal law and procedure courses to
attempt to get his cousin released on bail. However, as a result of his inexperience, the
attorney was unable to secure his cousin's release that night. The next morning, the
attorney found an experienced criminal lawyer for his cousin, who obtained his release
within one hour. Was the attorney's conduct proper?
Yes, because neither referral to another lawyer nor consultation with another lawyer
was practical under the circumstances.
Yes, because the attorney was a close relative.
No, because the attorney had no special training or experience in criminal cases.
No, because the attorney did not have the requisite level of competence to accept
representation in the case.
• Result under Rule 1.1?
– A lawyer shall provide competent representation to a
client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.
• But see
– Rule 1.1 Comment [3] In an emergency a lawyer may give
advice or assistance in a matter in which the lawyer does
not have the skill ordinarily required where referral to or
consultation or association with another lawyer would be
impractical. Even in an emergency, however, assistance
should be limited to that reasonably necessary in the
circumstances, for ill-considered action under emergency
conditions can jeopardize the client's interest.
•
•
•
•
•
Q5 An attorney hired a recent law school graduate as an associate. For the first six
months, the associate was assigned to draft legal documents that the attorney
carefully reviewed and revised before filing. However, shortly after the associate
was admitted to the bar, the attorney told the associate that he would be going on
vacation the following week and was assigning her the representation of the
landlord in a housing case that was going to trial while he was away. The associate
had never conducted or observed a trial before and, because she had not
previously worked on any housing cases, she was unfamiliar with the relevant law
and procedure. She did not believe that she would have enough time to learn
everything that she needed to know, but she was reluctant to decline the
assignment. Before the trial began, she met with the landlord and disclosed that
this would be her first trial, but the landlord did not object. Although the associate
prepared diligently, the landlord lost the trial. Is the attorney subject to discipline?
Yes, because the attorney did not ensure that the associate was competent to
conduct the trial on her own.
Yes, because the landlord lost the trial.
No, because the attorney could reasonably assume that, having been admitted to
the bar, the associate was capable of conducting the trial.
No, because the landlord did not object to the associate's representation.
Did the associate violate Rule 1.1?
•
•
Rule 1.1
– A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary
for the representation.
Does this mean a lawyer can only take cases in areas where she is already competent?
– No. Rule 1.1 Comment [2] A lawyer need not necessarily have special training or prior
experience to handle legal problems of a type with which the lawyer is unfamiliar. A
newly admitted lawyer can be as competent as a practitioner with long experience.
Some important legal skills, such as the analysis of precedent, the evaluation of evidence
and legal drafting, are required in all legal problems. Perhaps the most fundamental
legal skill consists of determining what kind of legal problems a situation may involve, a
skill that necessarily transcends any particular specialized knowledge.A lawyer can
provide adequate representation in a wholly novel field through necessary study.
Competent representation can also be provided through the association of a lawyer of
established competence in the field in question.
– Also Comment [1] In determining whether a lawyer employs the requisite knowledge
and skill in a particular matter, relevant factors include the relative complexity and
specialized nature of the matter, the lawyer's general experience, the lawyer's training
and experience in the field in question, the preparation and study the lawyer is able to
give the matter and whether it is feasible to refer the matter to, or associate or consult
with, a lawyer of established competence in the field in question.
Is the senior attorney liable:
•
•
•
•
•
•
•
Under respondeat superior?
Under the Rules?
Rule 5.1 (a) A partner in a law firm, and a lawyer who individually or together with
other lawyers possesses comparable managerial authority in a law firm, shall make
reasonable efforts to ensure that the firm has in effect measures giving reasonable
assurance that all lawyers in the firm conform to the Rules of Professional
Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Rules of
Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the Rules of
Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm
in which the other lawyer practices, or has direct supervisory authority over the
other lawyer, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
Q6
• Attorney has a highly efficient staff of paraprofessional legal
assistants, all of whom are graduates of recognized legal assistant
educational programs. Recently, the statute of limitations ran
against a claim of a client of Attorney's when a legal assistant
negligently misplaced Client's file and suit was not filed within the
time permitted by law. Which of the following correctly states
Attorney's professional responsibility?
• Attorney is subject to civil liability and is also subject to discipline on
the theory of respondeat superior.
• Attorney is subject to civil liability or is subject to discipline at
Client's election.
• Attorney is subject to civil liability but is NOT subject to discipline
unless Attorney failed to supervise the legal assistant adequately.
• Attorney is NOT subject to civil liability and is NOT subject to
discipline if Attorney personally was not negligent.
Does the lawyer have respondeat
superior liability?
What Rule helps answer this
problem?How do you apply it?
•
•
•
•
•
•
•
Rule 5.3
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm shall make reasonable
efforts to ensure that the firm has in effect measures giving reasonable assurance
that the person's conduct is compatible with the professional obligations of the
lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make
reasonable efforts to ensure that the person's conduct is compatible with the
professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a
violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm
in which the person is employed, or has direct supervisory authority over the
person, and knows of the conduct at a time when its consequences can be avoided
or mitigated but fails to take reasonable remedial action.
Malpractice
• What happens “when your lawyer screws
up?”
Q7
•
An attorney who is a sole practitioner limits his practice to personal injury cases. He regularly
places advertisements in local newspapers, stating that his practice is limited to personal injury
cases, including medical malpractice. After Seeing one of the attorney's ads, a man approached the
attorney for representation in a medical malpractice case. After a 30-minute interview, the attorney
told the man that he was too busy to take his case because it appeared quite complicated. He
further offered to refer the man to another lawyer who regularly practiced in the field. He
reminded the man that he should See another lawyer promptly before the statute of limitations
expired and he lost his right to sue. Although the attorney did not charge the man for the interview,
the man was upset at wasting 30 minutes of his time. The man did not contact another lawyer until
eight months later, when he learned that the statute of limitations on his claim had expired six
months after his interview with the attorney. In fact, the man had a meritorious medical
malpractice claim. Is the attorney subject to civil liability?
•
Yes, because the attorney falsely advertised his availability for medical malpractice cases.
Yes, because the attorney did not advise the man as to the date the statute of limitations would
expire.
No, because the attorney did not violate any duty owed to the man.
No, because the attorney offered to refer the man to another medical malpractice lawyer.
•
• Does a lawyer owe any malpractice duty to a prospective
client?
– Restatement § 15 (1) (c) (“reasonable care to the extent the
lawyer provides . . . legal services”
– Restatement § 15 comment (e) (these include evaluating a
“claim or defense,” “whether conflicts of interest exist . . . ,
[and] the time within which an action must be taken and, if the
representation does not proceed, what other lawyer might
represent the prospective client.”)
• Does a lawyer owe any competence duty to a prospective
client under the Rules? (answer not in text)
– Rule 1.18 (confidentiality and conflicts) Comment [9] For the
duty of competence of a lawyer who gives assistance on the
merits of a matter to a prospective client, see Rule 1.1.
Q8
• Jane Lawyer represents Ron Client in settling a dispute with his
employer. After Jane explained the terms of the settlement to Ron,
he knowingly and voluntarily agreed to it. The terms of the
settlement were fair. Ron later learns that his friend Lester had
received a significantly better settlement based on a similar dispute
with their mutual employer. Ron retains counsel to sue Jane Lawyer
for malpractice. Ron is:
• Not barred from suing Jane Lawyer.
Barred from suing Jane Lawyer because he voluntarily agreed to the
settlement.
Barred from suing Jane Lawyer because the settlement was fair.
Barred from suing Jane Lawyer unless Jane intentionally mislead
Ron regarding the terms of the settlement.
• Modern approach:
– Ziegelheim v. Apollo (party to settlement may sue
for negligent advice even where settlement “fair
and equitable”)
• Traditional rule:
– Party to settlement may not sue for malpractice
absent fraud.
Q9
•
•
An attorney agreed to represent a client in a lawsuit. The attorney and the client
executed the attorney's preprinted retainer form that provides, in part: "The client
agrees to pay promptly the attorney's fee for services. In addition, the client and
the attorney agree to release each other from any and all liability arising from the
representation. The client agrees that the attorney need not return the client's file
prior to receiving the client's executed release. Upon full payment, the attorney
will return the file to the client." Although the attorney recommended that the
client consult independent counsel before signing the retainer agreement, the
client chose not to do so. The attorney reasonably believes that his fee is fair and
that the quality of his work will be competent. Is the attorney's retainer agreement
with the client proper?
Yes, because the attorney furnished consideration by agreeing to return the
client's file.
Yes, because the attorney reasonably believes that his fee is fair and that the
quality of his work will be competent. No, because the attorney is attempting to
limit his liability for malpractice.
No, because the attorney uses a preprinted form for all retainers.
What Rule answers this problem and
what result?
• Rule 1.8 (h)
• (h) A lawyer shall not:
• (1) make an agreement prospectively limiting
the lawyer's liability to a client for malpractice
unless the client is independently represented
in making the agreement;
Q10
•
•
•
Attorney represented Buyer in a real estate transaction. Due to Attorney's
negligence in drafting the purchase agreement, Buyer was required to pay for a
survey that should have been paid by Seller, the other party to the transaction.
Attorney fully disclosed this negligence to Buyer, and Buyer suggested that he
would be satisfied if Attorney simply reimbursed Buyer for the entire cost of the
survey. Although Buyer might have recovered additional damages if a malpractice
action were filed, Attorney reasonably believed that the proposed settlement was
fair to Buyer. Accordingly, in order to forestall a malpractice action, Attorney
readily agreed to make the reimbursement. Attorney drafted a settlement
agreement, and it was executed by both Attorney and Buyer. Was Attorney's
conduct proper?
Yes, if Attorney advised Buyer in writing that Buyer should Seek independent
representation before deciding to enter into the settlement agreement.
Yes, because Attorney reasonably believed that the proposed settlement was fair
to Buyer.
No, because Attorney improperly settled a case involving liability for malpractice
while the matter was still ongoing. No, unless Buyer was separately represented in
negotiating and finalizing the settlement agreement.
What Rule answers this problem and
what result?
• Rule 1.8 (h)
• A lawyer shall not:
• (2) settle a claim or potential claim for such
liability with an unrepresented client or
former client unless that person is advised in
writing of the desirability of seeking and is
given a reasonable opportunity to seek the
advice of independent legal counsel in
connection therewith.
Rule 1.8 (h)
– (A lawyer shall not:
– (1) make an agreement prospectively limiting the lawyer's
liability to a client for malpractice unless the client is
independently represented in making the agreement; or
– (2) settle a claim or potential claim for such liability with an
unrepresented client or former client unless that person is
advised in writing of the desirability of seeking and is given
a reasonable opportunity to seek the advice of
independent legal counsel in connection therewith.
• A. Offer a rationale for the distinction between (h)(1)
and (h)(2)
• B. Offer a criticism of the distinction
Q11
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•
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An attorney is widely regarded as an exceptionally competent practitioner in the
field of criminal law. A client of the attorney became the subject of a grand jury
investigation in a matter that could result in a felony indictment. The client lacked
sufficient funds to pay for the attorney's services beyond the grand jury stage. He
asked the attorney to provide limited representation for a flat fee. Under the
arrangement he proposed, the attorney would advise the client concerning the
grand jury investigation, but the representation would end when an indictment
was returned or the grand jury decided not to indict. The attorney fully advised the
client of the practical and legal aspects of the client's proposal. Is it proper for the
attorney to accept this limited representation?
Yes, because the client and not the attorney suggested this arrangement.
Yes, because the attorney and the client may agree to limit the scope of the
representation so long as the limitation is reasonable under the circumstances.
No, because the attorney should not limit the scope of the representation based
on the client's ability to pay. No, because the scope of the representation may not
be limited in a criminal case.
What Rule answers this problem and
what result?
• Rule 1.2(c) A lawyer may limit the scope of the representation if the
limitation is reasonable under the circumstances and the client gives
informed consent.
• What is the limit on this limit?
• “reasonable under the circumstances”
• Comment [7] . . . 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.
• But Lerner v. Laufer?
Q12
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Rascal was convicted of murder. In preparing for the sentencing phase of the case,
Rascal's lawyer Matlock investigated potential mitigation evidence. Matlock spoke
with Rascal and five of his family members who described Rascal's childhood and
mental condition as normal. Matlock also consulted with mental health experts
who did not offer helpful mitigation evidence. Matlock was aware that the
prosecution was planning to introduce evidence of Rascal's previous convictions
for a violent rape, as well as a juvenile record. Matlock did not examine the files of
the earlier cases. If he had done so, he would have discovered mitigation evidence
of schizophrenia, organic brain damage, alcoholism, and serious childhood
problems. Rascal is sentenced to death. He appeals claiming ineffective assistance
of counsel. What result?
Not ineffective assistance. Matlock's conduct was not perfect but it was
reasonable because the interviews with Racal and his family members did not
indicate the existence of mitigation evidence.
Not ineffective assistance. Matlock's conduct was unreasonable but it was not
prejudicial.
Ineffective assistance. Matlock failed to provide zealous representation.
Ineffective assistance. Matlock's unreasonable conduct prejudiced Rascal.
• What is the test for ineffective assistance
Strickland v. Washington
– Lawyer’s conduct fails to meet reasonable lawyer
standard
• Plus
– Prejudice
• “likelihood of a different result . . . Is ‘sufficient to undermine
confidence in the outcome’”
• Apply to the facts in the problem?
– Rompilla v. Beard
• “Failure to examine . . . prior conviction file”
The Sleeping Lawyer
• Ineffective assistance?
Were the authors of the torture
memos competent?
• Expert testimony? 131
• Yes
• No
• Vote
Competence Lighting Round II
• What is the lawyer’s ethical duty of competence?
– Rule 1.1: “legal knowledge, skill, thoroughness and preparation reasonably
necessary”
• Is it objective or subjective?
– objective
• What is the emergency exception?
– Rule 1.1., comment 3: can assist even where “lawyer does not have the skill
ordinarily required where referral to or consultation or association with
another lawyer would be impractical” but “assistance should be limited to that
reasonably necessary in the circumstances”
• Can a lawyer limit representation?
– Rule 1.2(c): informed consent and reasonable limitation
• What is the malpractice standard?
– reasonable lawyer under the circumstances
• Is it objective or subjective?
– Objective
Competence Lighting Round II-2
•
Can a lawyer commit malpractice in meeting with a prospective client?
– Malpractice: reasonable care under circumstances
•
How do the standards for limiting and settling malpractice claims differ?
– Rule 1.8 (h) (1) prospective limitation requires independent representation
– Rule 1.8 (h) (2) settlement: advise in writing desirable seek independent representaiton and
provide reasonable opportunity to do so
•
What is the ethical duty to ensure the competence of colleagues and co-workers?
– Rule 5.1 (lawyers) and Rule 5.3 (nonlawyers): managers “reasonable efforts” measures
“reasonable assurance” all lawyers in compliance; supervisors “reasonable efforts” ensure
compliance; responsible for rule violation if order or ratifies conduct OR knows and fails to
take reasonable remedial action if possible to do so.
•
When is a lawyer liable for the malpractice of colleagues or co-workers?
– respondeat superior; partnership
•
Does ineffective assistance occur when a lawyer commits malpractice?
– No. Strickland test:
– 1. fails to meet reasonable lawyer standard
– 2. prejudice
•
Does the modern Rule permit suing a lawyer for malpractice in settling a case?
– Yes