Professional Responsibility 2013

Chapter 2-2

Terminating L-C Relationship

• http://www.youtube.com/watch?v=itj9sKHTT8g

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

• Your lawyers are not competent

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.

Q 9• 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• 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• 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 assistanceStrickland 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