Material We Are Covering
in Leftover Assignment #2(1) and #2(2)
II. Defining the Practice of Law
- We finished UPL: Lawyers Working with Nonlawyers [5.3 & 5-4]
- Ancillary Businesses [5.7 (+1.8)]
- UPL: Unauthorized Practice by Lawyers [5.5]
- BONUS: Choice of [Ethics] Law [8.5]
III. CREATING THE LAWYER-CLIENT RELATIONSHIP - - Defining the Relationship [Restatement 14; Morris; Westinghouse]
- Lawyers are not public utilities
- Exceptions to the general rule that lawyers aren’t public utilities
(pro bono 6.1; court appointments 6.2; other [anti-discrimination] law)
IV. ENDING THE LAWYER-CLIENT RELATIONSHIP [1.16]
- must, may, and how: mandatory and permissive withdrawal; court
permission
[Possible bonus from omitted case Whiting – Standard of Review] 1
2-7 (p. 45). Joan Lawyer has a leading real estate practice in Small
County. She is also part owner of Small County Title. She suggests to
her clients who purchase real estate that they consider purchasing
their title insurance from Small County Title. Joan discloses in
writing that she owns the company and recommends that her clients
consider the rates and policies of competing title insurance
companies. She explains that the services provided by Small County
Title are not legal services and that the legal ethics rules do not apply
to the purchase of title insurance. Joan suggests that clients feel free
to consult another lawyer as to whether they should purchase title
insurance from a company their real estate lawyer owns. The rates
and policies that Small County Title offers are comparable to those of
its competitors.
Under what circumstances, if any, would this be ok?
2
Question 2-7 Choices
1. Joan is not subject to discipline if the clients give
informed consent in writing.
2. Joan is not subject to discipline because she
informs clients of the opportunity to consult
independent counsel.
3. Joan is not subject to discipline because the rates
and policies of Small County Title are comparable
to those of its competitors.
4. Joan is subject to discipline unless she complies
with all three requirements listed above.
3
Unauthorized Practice by
Lawyers
4
2-8 (p. 47). Giant Manufacturer wants to buy widgets from
Small Producer. Both Giant and Small are headquartered in
California. Small's outside counsel, John Lawyer, admitted
to practice in New York, travels to California from his New
York office to negotiate the deal on Small's behalf. After
extensive negotiations, Giant agrees to pay Small $10
million for the widgets. John bills Small for $500,0000]
thousand for legal fees. Small believes the fee is far too
high and refuses to pay. It retains a California lawyer and
decides to argue that it does not have to pay anything to
John Lawyer because he was engaged in unauthorized
practice of law.
Will Small’s argument succeed?
5
• 2-9 (p. 56). Joan Jones is an associate at
Franklin & Ignatius. She is admitted to the
New York Bar. The firm sends her to the State
of Sirius to appear in court in a case where the
firm has been admitted pro hac vice.
Has she committed UPL?
6
2-10 (p. 57). Did Joan Jones violate UPL when she entered
Fordham to investigate and prepare the case before the firm
and its lawyers were admitted pro hac vice?
2-11 (p. 57). Would she have violated UPL if the firm had
brought an arbitration on behalf of its client and not a court
case?
2-12 (p. 58) . Does Joan violate UPL if she transfers full-time
to F&I's Sirius office and works under the supervision of a
Sirius admitted attorney?
2-13 (p. 58) . Does Joan commit UPL if she leaves F&I to
become in-house counsel at Monolith, Inc., located in
Sirius?
7
2-14 (p. 59). Joan rejoins F&I as a partner in its New York office. As a
corporate partner, she is in charge of representing ABC, Inc., based in
New Jersey, in its takeover of DEF, Inc., based in New York. Her
team includes Jim, a NY lawyer coordinating the NJ litigation, and
Jane, a corporate associate admitted in NY and NJ. They discover
ABC has made a fraudulent statement relevant to the litigation. NJ
requires disclosure. NY does not. The F&I lawyers do not disclose.
Which of the following is true?
1. If the predominant effect is in NJ, all face discipline absent
contrary reasonable belief.
2. Only Jane faces discipline because she is a NJ lawyer.
3. Only Jim faces discipline because he is litigating the matter in
NJ.
4. None face discipline because NY does not require disclosure.
8
Creating the Lawyer-Client Relationship
(p.61) [Morris 64; Westinghouse 67; Nathanson 77]
Restatement (RS) §14, 1.13(a) & (f-g); 6.2
Problems 2-15 to 2-20
9
Casebook p. 61: Another building block of law practice is
the lawyer-client relationship. In the United States, the
general rule is that a lawyer has full discretion to decide
whether to accept a client or not, subject to very limited
exceptions. These exceptions include the lawyer’s
obligation to accept a court appointment and to comply
with anti-discrimination laws.
Determining whether a lawyer-client relationship
exists is critically important because many of the rules
and principles you will study only apply if there is a lawyerclient relationship. Nonetheless, as this Part demonstrates,
the task of determining whether a lawyer has entered a
lawyer-client relationship, or has obligations similar to
those found in a lawyer-client relationship, can be quite
complex. Restatement 14 (p. 62) is really really IMPORTANT.
10
2-16 (p. 62). An attorney closed her law practice when she
became a state senator. A bank, one of the senator's
former private clients, asked her as its senator to try to
persuade a state agency to grant the bank a license to
open a new branch bank. While the bank's request was
pending before the agency, the senator wrote a letter on
her legislative letterhead to the agency's chair, asserting
that the branch would satisfy a local business need and
urging that the bank's application be granted. The senator
neither sought nor received any compensation from the
bank for her efforts. Eventually the agency granted the
bank's application, in part because of the senator's efforts.
Is the senator subject to discipline?
11
2-17 (p. 63).. Lincoln & Fordham has represented
Center Manufacturing in its transactional work. The
SEC begins an investigation of Center
Manufacturing. Lincoln & Fordham explains to
Center that it cannot represent it in the SEC
investigation. Center obtains other counsel.
Nonetheless, from time to time, Center asks Lincoln
& Fordham about issues that arise in the SEC matter
and Lincoln & Fordham provides answers.
Does Center have a lawyer-client relationship
with Center for purposes of the SEC
investigation?
12
2-18 (p. 66). The firm of Lincoln & Fordham represents
the Computer & Software Association, an organization
of businesses who manufacture computers or create
software, in challenging proposed regulations regarding
data privacy. Lincoln & Fordham has collected
information on business practices from each of the
businesses in the Association. Lincoln & Fordham
agrees to represent one of those businesses, GoFind, in
an antitrust suit against another, MacroTough.
Was MacroTough a client of Lincoln & Fordham by
virtue of its representation of the Computer & Software
Business Association?
13
Exceptions
to the general rule
that lawyers aren’t public utilities
(pro bono 6.1; court appointments 6.2;
other [anti-discrimination] law)
14
2-19 (p. 74). The court appoints a lawyer who believes that
abortion is murder to represent a teenage girl Seeking court
permission to obtain an abortion without the consent of her
parents. The lawyer explains that he believes that abortion
is murder and asks the court to withdraw the appointment.
The court refuses. Under the Rules, which of the following
is true?
1. The lawyer should not have sought to avoid the
appointment.
2. The lawyer was ethically permitted to seek to avoid the
appointment and can refuse the representation.
3. The lawyer was ethically permitted to seek to avoid the
appointment but must continue the representation.
4. The lawyer must represent the client, but does not
have to follow the client's instructions.
15
2-20 (p. 76). Joan Lawyer practices matrimonial
law. She only represents women because she
Seeks to "redress the social and legal wrongs
done to women." John Client asks her to
represent him. She refuses on the ground that he
is a man. John Client sues her for unlawful
discrimination.
Under Nathanson v. MCAD, what is the
result?
16
Ending the Lawyer-Client Relationship
(p.82) [Whiting]
Rule 1.16
Problems 2-21 to 2-25
Figure out Must, May, and How
17
2-22 (p. 83). 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?
18
2-23 (p. 85). 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 is she didn't like the way
he was handling the lawsuit, perhaps she 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?
19
2-21(p. 82). 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? (i.e. How should you end things?)
20
Do you know about the
“Standard of Review?”
• The omitted case – Whiting v. Lacara p. 86 – stated
that the trial court’s ruling on a motion to
withdraw would be reviewed for “abuse of
discretion.”
• What other kinds of “standards of review” exist?
• Do courts care about “standard of review”?
• Why should you care about “standard of review”?
• How can you learn the appropriate standard of
review for a given appeal?
21
Not assigned
22
2-24 (p. 90). 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?
23
2-25 (p. 91). Rule 1.16 implements the
dominant conception that the lawyer
should serve as a "neutral partisan" for
her client.
Yes or No
24