Professional Responsibility Law 115 Wed., Sept. 5

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Professional ResponsibilityLaw 115Wed., Sept.
5
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I. my general approach to the course
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• II.
• the sources of the law of lawyering

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• Disciplinary law
• Source usually state supreme court
• Governs activities in and beyond practicing
  before court
• E.g. Virginia Rules of Professional Conduct

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• Federal court regulation of those practicing
  before federal bar
• Governs activities in and beyond practicing
  before federal court
• BUT sanction is usually only dismissal from
  federal bar

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• procedural law
• e.g. Rule 11, disqualification, atty-client
  privilege
• law having source in state police power
• e.g. malpractice, agency, contract, fraud
• federal law
• e.g. Sarbanes-Oxley

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III.the odd character of the law of lawyering
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Spaulding v. Zimmerman (Minn SCt 1962)
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IV.Admission to Bar
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• Character and Fitness
• General test predict future violations of
  discipinary rules
• need not be criminal or even illegal- eg
  plagiarism

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• pattern of violation of laws
• single infraction revealing dishonesty or abuse
  of position of trust
• Neglect of financial responsibilities
• Failure to disclose requested information in
  application!

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• Now you are a lawyer

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V.Standards for Professional Discipline
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• MR 8.4 It is professional misconduct for a
  lawyer to
• violate or attempt to violate the Rules of
  Professional Conduct, knowingly assist or induce
  another to do so, or do so through the acts of
  another

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• 8.4 (b) commit a criminal act that reflects
  adversely on the lawyer's honesty,
  trustworthiness or fitness as a lawyer in other
  respects
• Does not say conviction
• Does not say in the practice of law
• Look to standards for character and fitness
• Pattern, dishonesty, abuse of position of trust,
  neglect of financial responsibility

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• 8.4(c) engage in conduct involving dishonesty,
  fraud, deceit or misrepresentation
• Need not be illegal
• Need not be in practice of law

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• 8.4(d) engage in conduct that is prejudicial to
  the administration of justice
• Need not be illegal, need not be related to your
  own legal practice

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• Multistate Practice

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• Unauthorized practice of law
• Even if admitted in one state, practicing in
  another state may submit one to discipline
• Does not include representing self
• Does include representation of others outside of
  litigation
• eg transactional work or providing advice

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• Litigation
• admission pro hac vice

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Birbrower, Montalbano, Condon Frank, P.C. v.
Superior Court (Cal. 1998)
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- Birbrower (NY) had a longstanding relationship
with the Sandhu family (NY), a member of which
was the sole shareholder of ESQ Business Services
Inc. (NY)- ESQ entered into a software
development and marketing agreement with Tandem
Computers (Cal.) - governed by California law
and disputes to be arbitrated- later ESC
California was incorporated with another member
of the Sandhu family as the sole shareholder-
both corporations hired Birbrower to resolve
dispute with Tandem- Birbrower lawyers traveled
to Cal. for interviews, consultation, negotiation
and to initiate arbitration- case settled before
arbitration
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Cal. S.Ct. held Birbrower engaged in the
unauthorized practice of law in Cal. - Birbrower
could not collect fee- even if all work had been
done by lawyers physically in NY- even if
Birbrower had associated with local counsel-
even if client had known that Birbrower was
engaged in UPL in Cal.
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What is practicing law?- state-by-state
approach- ABA recommendation Application of
legal principles and judgment with regard to the
circumstances or objectives of a person that
requires the knowledge and skill of a person
trained in the law.
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• Rule 5.5 Unauthorized Practice Of Law
  Multijurisdictional Practice Of Law
• A lawyer shall not practice law in a jurisdiction
  in violation of the regulation of the legal
  profession in that jurisdiction, or assist
  another in doing so

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• (b) A lawyer who is not admitted to practice in
  this jurisdiction shall not
• (1) except as authorized by these Rules or other
  law, establish an office or other systematic and
  continuous presence in this jurisdiction for the
  practice of law or
• (2) hold out to the public or otherwise represent
  that the lawyer is admitted to practice law in
  this jurisdiction.

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• 5.5(d) A lawyer admitted in another United States
  jurisdiction, and not disbarred or suspended from
  practice in any jurisdiction, may provide legal
  services in this jurisdiction that
• (1) are provided to the lawyers employer or its
  organizational affiliates and are not services
  for which the forum requires pro hac vice
  admission or
• (2) are services that the lawyer is authorized to
  provide by federal law or other law of this
  jurisdiction.

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• 5.5(c) A lawyer admitted in another United States
  jurisdiction, and not disbarred or suspended from
  practice in any jurisdiction, may provide legal
  services on a temporary basis in this
  jurisdiction that
• are undertaken in association with a lawyer who
  is admitted to practice in this jurisdiction and
  who actively participates in the matter
• In state counsel must actively participate

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• 5.5(c)(2) are in or reasonably related to a
  pending or potential proceeding before a tribunal
  in this or another jurisdiction, if the lawyer,
  or a person the lawyer is assisting, is
  authorized by law or order to appear in such
  proceeding or reasonably expects to be so
  authorized
• Pro haec vice
• Or reasonably expect it
• Includes depositions etc. in state other than
  where litigation takes place

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• 5.5(c)(3)
• are in or reasonably related to a pending or
  potential arbitration, mediation, or other
  alternative dispute resolution proceeding in this
  or another jurisdiction, if the services arise
  out of or are reasonably related to the lawyers
  practice in a jurisdiction in which the lawyer is
  admitted to practice and are not services for
  which the forum requires pro hac vice admission

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• 5.5(c)(4) are not within paragraphs (c)(2) or
  (c)(3) and arise out of or are reasonably related
  to the lawyers practice in a jurisdiction in
  which the lawyer is admitted to practice.

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• What does it arise out of or reasonably related
  mean?

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- legal services that are ancillary to a
particular matter in the lawyer's home state
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• Comment 14 The matter, although involving other
  jurisdictions, may have a significant connection
  with that jurisdiction. In other cases,
  significant aspects of the lawyers work might be
  conducted in that jurisdiction or a significant
  aspect of the matter may involve the law of that
  jurisdiction.
• E.g. you represent a Californian in California
  concerning the signing of a contract with another
  Californian to build a hospital in Va

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Comment 14 A variety of factors evidence such a
relationship. The lawyers client may have been
previously represented by the lawyer, or may be
resident in or have substantial contacts with the
jurisdiction in which the lawyer is admitted.
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you negotiate Cal. on behalf of a Va.client -
even when contract is signed in Cal., is governed
by Cal. law, and disputes will be litigated in
Cal.not enough that out-of-state client
approached you in Va. where you are licensed to
practice
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• You represent a Californian in Va concerning Va
  accident. The Californian then asks you to
  represent her in Cal concerning transactional
  matter.

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• The necessary relationship might arise when the
  clients activities or the legal issues involve
  multiple jurisdictions, such as when the officers
  of a multinational corporation survey potential
  business sites and seek the services of their
  lawyer in assessing the relative merits of each.
  In addition, the services may draw on the
  lawyers recognized expertise developed through
  the regular practice of law on behalf of clients
  in matters involving a particular body of
  federal, nationally-uniform, foreign, or
  international law.

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- e.g. determining environmental liability of
client that has plants in 20 states - or a
hostile takeover of an multi-state company by
another multi -state company
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• Disciplinary Jurisdiction

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A lawyer violates a client confidence in Masshe
is admitted in Mass and Vacan only Mass
discipline, or both Mass and Va?
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• 8.5(a)
• A lawyer admitted to practice in this
  jurisdiction is subject to the disciplinary
  authority of this jurisdiction, regardless of
  where the lawyer's conduct occurs.

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• Assume a lawyer not admitted in Va violates a
  confidence in Va.
• Can Vas bar discipline him?

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• 8.5(a) cont
• A lawyer not admitted in this jurisdiction is
  also subject to the disciplinary authority of
  this jurisdiction if the lawyer provides or
  offers to provide any legal services in this
  jurisdiction.

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• Choice of Law
• Lets say that DC rules require one not to
  violate client confidences concerning fraud upon
  the court, MD law says that you must violate
  confidences
• you are a lawyer admitted in MD bringing a case
  before a DC court (allowed to appear pro hac
  vice)
• Which law applies?

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• 8.5(b)(1)- for conduct in connection with a
  matter pending before a tribunal, the rules of
  the jurisdiction in which the tribunal sits,
  unless the rules of the tribunal provide
  otherwise

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• admitted in MD, not DC
• DC has rule that no violation of client
  confidences concerning ongoing fraud is
  permissible
• MD says must violate client confidences
• in DC and DC client tells you of his fraud
  occurring in DC
• You say nothing
• Disciplinary proceedings in MD
• What law should it use?

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• 8.5(b)(2)
• jurisdiction in which the lawyers conduct
  occurred, or, if the predominant effect of the
  conduct is in a different jurisdiction, the rules
  of that jurisdiction shall be applied to the
  conduct.
• A lawyer shall not be subject to discipline if
  the lawyers conduct conforms to the rules of a
  jurisdiction in which the lawyer reasonably
  believes the predominant effect of the lawyers
  conduct will occur.

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Introduction to Lawyer-Client Relationship
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• Once lawyer-client relation is established, many
  duties of disciplinary law (as well as other law,
  such as malpractice) arise
• Confidentiality
• Loyalty (conflict of interest)
• Competence

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• When is a lawyer-client relationship established?
• Not in model rules
• A question of state contract/tort law
• No money needs to change hands!

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Togstad v. Vesely, Otto, Miller Keefe (Minn.
1980)
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• Womans husband paralyzed from apparent
  malpractice of doctor
• Meets with lawyer (Jerre Miller)
• She told him about what sparked her belief that
  there was medical malpractice
• he claimed that he said that he did not think
  that they had a case but that he would discuss it
  with his partner
• if he changed his mind after talking to him, he
  would call her
• didnt call back so she assumed no case

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• Miller never said firm had no expertise in
  medical malpractice or that there was a 2 year
  statute limitations
• One year later she consulted an attorney again
• Found out statute of limitations had passed
• Miller firm held liable for legal malpractice

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• Restatement of the Law Governing Lawyers
• 14. Formation Of A ClientLawyer Relationship
• A relationship of client and lawyer arises when
• (1) a person manifests to a lawyer the person's
  intent that the lawyer provide legal services for
  the person and either
• (a) the lawyer manifests to the person consent
  to do so or
• (b) the lawyer fails to manifest lack of consent
  to do so, and the lawyer knows or reasonably
  should know that the person reasonably relies on
  the lawyer to provide the services or
• (2) a tribunal with power to do so appoints the
  lawyer to provide the services.

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• Togstad letters

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• NOTE Duties to prospective clients who never
  become actual clients
• eg confidentiality
• statute of limitations?

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Flatt v. Sup. Ct., 885 P.2d 940 (Cal. 1994)-
discussions with prospective client- lawyer said
had a case and tentatively agreed to accept- did
conflicts check and realized that target
defendant of prospective client was a current
client - withdrew- held no duty to tell prosp.
cl. about statute of limitations
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scope of the representation
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• Limiting the scope of representation
• Limitation can be temporal (were through) as
  well as by subject matter
• Lawyers duties are related to the scope
• E.g. Assume you have represented a client
  concerning a store the client owns, but you learn
  from him that he has been in a car accident
• Do you commit malpractice for letting the statute
  of limitations run on his tort action?

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• Limiting Scope of Representation Contractually
• MR 1.2(c) (c) A lawyer may limit the scope of the
  representation if the limitation is reasonable
  under the circumstances and the client gives
  informed consent.

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• Comment 7 (on reasonableness of limitation)
• If, for example, a client's objective is limited
  to securing general information about the law the
  client needs in order to handle a common and
  typically uncomplicated legal problem, 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.

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- anonymous letter was sent to Enron's CEO,
Kenneth Lay alleging violations of accounting
standards and conflicts of interest by Enron
officers- Lay and Enron's general counsel asked
the Vinson Elkins firm to investigate- Vinson
Elkins limited the scope of the representation,
however, describing it as a "preliminary
investigation" to determine "whether the
allegations in the letter ... presented any new
information ... that may warrant further
independent investigation" - also agreed with
Derrick and Lay that their investigation would
not involve "second guessing" the accounting
advice provided by Arthur Andersen and limited
their sources of information to Enron officers
and the relevant Anderson partners- after the
interviews, the firm concluded that there was no
need for further investigation. Anything wrong
with limiting the scope of representation in this
fashion?