PROFESSIONAL RESPONSIBILITY ESSAY SERIES
ESSAY QUESTION #1
MODEL ANSWER
Attorney Ann is a member of the State Bar of California and represents
primarily low-income tenants. Frank, a friend of Ann, told her about an
apartment complex that appeared to be very run down and to have many
elderly tenants. Ann visited the building and was shocked at its dilapidated
and unsafe conditions.
Ann sent a letter to each of the tenants in the building, which stated:
It has come to my attention that there may be ILLEGAL and UNSAFE
conditions at your apartment building!
I am an attorney experienced in this type of case, and I am willing to
represent you in a lawsuit against your landlord regarding these conditions.
CALL TODAY!
Tom, a tenant, called Ann in response to the letter and told her he wanted to
hire her to sue Landlord. He said that another tenant named Barbara, who is
82 years old and speaks only Spanish, also wanted to hire Ann.
Ann met with Tom and Barbara. Since Ann speaks very little Spanish, and
Tom is bilingual, he acted as a translator. It became clear that Tom's interest
was in obtaining a money judgment and that Barbara's interest was in
obtaining an injunction requiring the landlord to make repairs. Ann, Tom
and Barbara signed a contingency fee agreement for Ann to represent Tom
and Barbara in a lawsuit against Landlord. Under the agreement, Ann would
receive 40% of any recovery in the case. Ann also separately agreed with
Frank that she would pay him 10% of any fees she recovers in return for his
having told her about the apartment complex.
Ann filed a lawsuit against Landlord. The suit had a sound legal basis, and
she handled it in a professionally competent manner.
Ann and Tom worked together closely on the case, and before the case was
resolved, he asked Ann to date him. He also gave her a free airline ticket to
accompany him on a trip to Hawaii, which she accepted.
Eventually, Landlord made a written settlement offer to pay money damages
only, which Ann conveyed to Tom. Tom, without consulting Barbara, told
Ann that he and Barbara accepted the offer. Ann concluded the settlement.
What professional responsibility issues are raised by Ann's conduct?
Discuss.
MODEL ANSWER
ATTORNEY DUTIES.
PREAMBLE STATEMENT. As a member of the California State Bar,
May must abide by the American Bar Association and California Rules of
Professional Responsibility, or she will be subject to discipline by the Bar.
May owes duties to her clients, the profession, other attorneys, the
community at large and to the court.
ADVERTISEMENTS / SOLICITATION. Advertisements are widely
distributed public statements about services.
PROCEDURE. The advertisement must identify one lawyer as responsible
for the content of the ad, it must be labeled as advertising, and it must be
preserved for two years. An attorney may send targeted direct-mail
solicitations, with truthful correspondence to persons facing a legal
situation.
Ann identified herself as an attorney in the letter, and she should keep the ad
for two years. However, it appears as though she did not clearly indicate
that the material she sent was advertising material, and she may be subject
to discipline for lack of such a notice.
TARGETED DIRECT MAIL. Attorneys may only solicit relatives and
former clients. Solicitation is the initiation of personal contact for the
purpose of obtaining fee-paying work. Here, Ann is not soliciting since she
is sending out a targeted direct mail advertisement, which is allowed
FALSE STATEMENTS. False or misleading statements are not allowed
under the rules. A misleading statement will be present if an attorney
misstates, or fails to state, material information that creates unjustified
expectations, or makes unverifiable comparisons.
Here, Ann sent a letter to each of the tenants in an apartment building.
While Ann did not make any blatantly false statements within the
advertisement, she did present her statements in CAPS, and seemed to state
unequivocally that illegal and unsafe conditions were present at the
apartment complex, and she seemed to assert that she would represent
people before having an interview with them. Therefore, she may have
created an unjustified expectation that all of the recipients of the letters
would win a legal case, and receive remedies. Her ad may be judged to be
misleading inasmuch as it says nothing about the possible cost of
representation. Many elderly residents may interpret the letter as a guarantee
of a winning lawsuit. Such an unjustified expectation would be in violation
of the rules on advertising.
CONSIDERATION FOR REFERRALS. An attorney may not receive consideration for
a referral. Here, Frank informed Ann of the elderly tenants at the apartment complex.
Later, Frank became part of a contingency agreement, in which he would receive ten
percent of the recovery. This may entail an improper payment for referrals.
DUTY OF LOYALTY.
A lawyer must exercise independent judgment. An attorney cannot represent two
parties on the same side of a lawsuit if they have diverging interests. However, an
attorney may represent two parties if they have only a potential conflict, rather than an
actual one, if the attorney secures waivers from both parties. If a conflict exists, the
attorney must not take the case if it would not be reasonable to believe the
representation could be provided without the conflict affecting the case.
CONFLICTING INTERESTS.
Two parties are conflicted if one party's interests would prevent the full, loyal
representation of the other party. Here, Tom sought a money judgment, and Barbara
want an injunction to repair the apartment complex. Representation of Tom and
Barbara, would entail two divergent legal strategies. A monetary judgment often
precludes injunctive relief, and if Tom received his remedy, Barbara would probably not
have received her remedy. Therefore, Ann would be forced to argue inconsistent
positions adverse to the other client throughout the claim. Ann could have refused to
accept representation of one or both of these clients. And, at this point, she should
withdraw from representation, with the suggestion to each client to seek other
representation. Since Ann did not withdraw, she is subject to discipline.
DUTY OF CONFIDENTIALITY / COMPETENCE.
An Attorney owes the client a duty of confidence not to disclose any information or use
to the client's disadvantage when learned as a result of the representation.
TOM AS TRANLATOR FOR BARBARA.
Here, Barbara only spoke Spanish. Ann should have realized that Ann needed an
independent interpreter in order to communicate with Barbara. The Duty of
Competence requires an attorney to seek outside assistance when it would not be
reasonable for the attorney to perform their services under the circumstances. Instead,
Ann let Tom serve as Barbara's interpreter. As stated earlier, Tom's interests were
diverse to Barbara's interests, and Tom could have been distorting the communication in
his favor in order to more easily achieve his goals. Further, Tom, a client, became privy
to what should have been privileged information between Ann and Barbara.
Therefore, Ann breached her duty of confidence and competence, when Ann allowed
Tom to translate for Barbara, and Ann will be subject to discipline.
INFORMED CONSENT. Ann must provide to her client an informed consent
procedure whenever there are potential conflicts of interest. First, she must fully
disclose the possible ramifications that may occur if the situation, as currently
formulated, continues. Then, she must suggest that the client seek out a second legal
opinion. Third, she must give the client ample time to secure a second opinion. Finally,
she must receive a written, signed waiver from the client. Here, there is no evidence
that the consequences of the joint meeting and of joint representation were discussed
with Barbara, and Ann would be subject to discipline.
FIDUCIARY DUTY. An attorney must use scrupulous good faith, candor,
and care in handling of client’s money and property.
REASONABLE FEES. Fee should be discussed with clients, if possible in
writing, before representation, or within a reasonable time after
commencing representation. Fees should not be unconscionable, rather,
they should be the customary fee within the locality for work of a similar
nature, considering the experience, ability, reputation of attorney, and
amount involved and result obtained.
Here, we have a relatively simple landlord / tenant situation. A rate of forty
percent in contingency seems relatively high for a routine situation,
especially since the claim was settled shortly after bringing suit.
CONTINGENCY FEE AGREEMENT.
In California, contingency fee agreements must be in writing, must disclose
the fee percentage and how the fee is calculated, must disclose what
expenses are excluded from the contingency fee and how they are to be
charged, and must disclose that fee arrangement besides contingency fee
agreements are available.
Ann stated the rate of forty percent in writing, however, there are no
indications that she fully discussed the parameters of the agreement with
Barbara and Tom. For example, there are no indications of how Ann would
be paid if Barbara were to win an injunction, instead of monetary damages.
The agreement appears not to have calculated how costs would be
calculated, or when they would be withdrawn from a judgment.
FEE SPLITTING AGREEMENT.
An attorney may not split fees with a non-attorney except under limited
circumstances. Here, Frank is due ten percent under the contingency fee
agreement. A fee may not be split with Frank unless part of an employee
compensation or retirement plan for a firm. Attorneys may split fees with
attorneys in other firms, provided that the clients consent.
Here, it is unclear whether Frank is an attorney. If he is not an attorney, in
California, runners and cappers are not allowed, and Frank must not solicit
clients for Ann, and receive compensation for his actions.
DUTY OF COMPETENCE.
An attorney owes their client a duty of competent representation and should
not take on a case in which they have inadequate skill or knowledge to
pursue it. The lawyer must act with reasonable diligence and promptness in
representing a client, and must pursue with diligence any claim filed on
behalf of the client.
Ann primarily represents low income tenants. The problem and case involve
the rights and duties of low income tenants and the landlord. She is,
therefore, competent to take on this type of representation. Ann filed a
viable lawsuit which was settled fairly quickly. Therefore, she met some of
the requirements of her duty of competence.
SETTLEMENT OF CLAIM / DECISION-MAKING.
An attorney has a duty to communicate with clients and to meaningfully
share decision-making with clients. Decisions affecting the merits of the
case, may be made only by client, while the attorney determines procedural
details.
Here, the case was settled through the actions of Ann and Tom, and Barbara
was not involved in the negotiations. Ann was precluded from settling a
claim involving Barbara, without first notifying Barbara of the settlement
offer, and then obtaining Barbara's consent to settle. Further, Barbara's right
of confidentiality was breached when Tom served as the communicative
agent in this instance.
DUTY TO THE COURT.
An attorney owes a duty to the Court and to the profession to not interpose
frivolous legal arguments or submit papers for an improper purpose, such as
to harass.
Here, Ann filed a lawsuit against Landlord. The suit had a sound legal basis,
and she handled it in a professionally competent manner. Therefore, Ann
satisfied her duty of candor and honesty to the court.
PERSONAL RELATIONSHIP WITH CLIENT.
The ABA Model Rules and California rules strongly discourage attorneys
from becoming romantically involved with their clients. An attorney may be
subject to discipline if she has used her position as a fiduciary to coerce the
client or otherwise improperly force a relationship on the client.
Here, Tom pursued Ann, and there is no indication that Ann used her
relationship as Tom's attorney to coerce Tom in any way.
However, Ann's romantic interests in Tom, and Ann's representation of
Barbara, are not aligned. In order to continue her romantic relationship with
Tom, Ann would probably seek to follow the representational path most
favorable to Tom, and thus adversely affect the possibility that Barbara
would secure her objectives. Ann's romantic foray with Tom created a
situation of potential conflict with Barbara's interests, because Ann may be
induced to favor Tom's interests over Barbara's interests. Ann should have
received informed consent from Barbara, which Ann did not obtain, or,
conversely, Ann should have withdrawn from representation. Ann took
neither of these actions, and Ann will be subject to discipline.
GIFTS FROM A CLIENT.
The gift of an airplane ticket appears as though it may have been
independent of the representation of Tom by Ann. Therefore, it may have
been proper.
DUTY TO WITHDRAW. When representation of a client may result in
violation of the rules or the law, when the physical or mental condition of
lawyer is impaired, or when a lawyer is discharged, an attorney has a duty to
mandatorily withdraw from representation of a client. In a number of the
situations discussed above, if Ann was not able to obtain informed consent
from each client, she would be under a duty to withdraw from
representation, which she did not do.
CONCLUSION.
DISCIPLINE. The range of disciplinary measures which may be levied
against Ann include censure, reprimand, suspension, disbarment,
malpractice and breach of contract.