Professional ResponsibilityLaw 115

Wed., Sept. 12

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• Multistate Practice

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• Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law

(a)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

Lawyer admitted in Va. represents a Va. client in litigation in Cal. without getting pro hac vice admission as required under Cal. law

Lawyer has violated Va. disciplinary Rule 5.5(a)

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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 lawyer’s 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:

5.5(c)(1)are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter

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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

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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 lawyer’s 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 lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

NOT enough:

You are admitted in Md. onlyA Va. client comes to your office about representing him in connection with the purchase of a Va. company

You are admitted in Md. onlyA Md. client comes to your office about representing him in connection with the purchase of a Md. companyIn assessing the value of the company, you go to Va. to examine some of its assets there

MR 5.5 Comment 14“The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction.”

You are admitted in Md. onlyA Virginian comes into your office to have you negotiate in Va. the signing of a contract with another Virginian to build a hospital in Md.

You are admitted in Md. onlyA Md. client comes to your office about representing him in connection with the purchase of a Va. company

- You are admitted in Md. Only- A Virginian comes into your office to have you negotiate in Va. the signing of a contract with another Virginian to build a hospital in Md.- Subsequently, the Virginian asks you to negotiate in Va. the signing of a contract with another Virginian to build a hospital in Va.

• The necessary relationship might arise when the client’s 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 lawyer’s 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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Disciplinary Jurisdiction

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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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8.5(a) con’tA 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.

choice of law

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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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• 8.5(b)(2) • jurisdiction in which the lawyer’s 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 lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

Introduction to Lawyer-Client Relationship

Restatement of the Law Governing Lawyers§ 14. Formation Of A Client–Lawyer 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.

scope of the representation

• 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.

Allocation of Authority between lawyer and client

Two issues1) when can lawyer bind client

- issue of agency law2) when can lawyer be disciplined (1.2a) for

acting contrary to the client’s wishes or without consultation with client

Lawyer may bind client if

• Express agency– Client explicitly tells lawyer that he can act on his

behalf concerning the matter– In some cases client is prohibited from giving

express authority• Eg pleading guilty or not guilty in criminal case

– Can revoke at any time

MR 1.2(a) “lawyer shall abide by client’s decision as to whether to settle a matter”

MR 1.2 Comment [3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

In re Lewis (Ga. 1995)

- lawyer disciplined for including in contingent fee agreement a provision giving him full power to settle without further authorization)

• Implied agency–Authority that is assumed by virtue of

creation of attorney-client relationship, or authority that reasonable follows from the particular express agency conferred by the client• can by overridden by client’s express

wishes• If overridden, the client cannot be bound

by lawyer’s actions

a lawyer settles for his client, even though the client never expressly gave the lawyer the power to do so

can opponent hold client to the agreement?

a lawyer settles for his client, even though the client expressly forbad the lawyer from doing so

can opponent hold client to the agreement?

Inherent authority

- assumed to exist by virtue of the lawyer-client relationship

- cannot be overridden by cleint’s express wishes

- e.g. the power to make admissions binding on the client before court

- a lawyer tries to settle for his client- the other side asks “did your client give you authority to settle?”- the lawyer says yes- this is false – client expressly said no authority to settle

can defendant hold client to the agreement?

• Apparent authority–Restatement § 27. A Lawyer's Apparent

Authority–A lawyer's act is considered to be that of

the client in proceedings before a tribunal or in dealings with a third person if the tribunal or third person reasonably assumes that the lawyer is authorized to do the act on the basis of the client's (and not the lawyer's) manifestations of such authorization.

Teleprompter case (2d. Cir. 1979)- principals had agreed on basic terms- lawyers drafted the details- Telep’s lawyer was told that Telep’s president had signed- lawyer informed other side of this fact- then management changed and they refused to turn over documents- ct held apparent authority existed

disciplinary law on the division of authority in lawyer-client

relationship

• MR 1.2(a)• Subject to paragraphs (c) and (d), a lawyer

shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

• MR 2.1• In representing a client, a lawyer shall exercise

independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

- a lawyer refrains from telling his client about an insufficiently low settlement offer in fear that the client will take it- they go to trial and the client wins much more than was offered. - may the lawyer be submitted to disciplinary sanctions?

• Comment 2 to 1.2• “Because of the varied nature of the matters

about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved.”

A client in a civil case insists that a lawyer present an argument in a brief that the lawyer believes is frivolous and would subject him to Rule 11 sanctions.

May the lawyer refuse to include the argument?

• MR 3.1 • A lawyer shall not bring or defend a

proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

• 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

• 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:

(3) the lawyer is discharged.

special problems in criminal cases

• Anders Brief• request to withdraw but includes brief “that

refers to anything in the record that might ‘arguably support the appeal.’”

Jones v. Barnes(U.S. 1983)

disabled clients

• Rule 1.14 • (a) When a client's capacity to make

adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

• (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

• Compulsory Limitations on Scope – counseling or assisting crime/fraud

• Counseling or assisting crime or fraud is a different question from collaborating in a way that would make one subject under other law (e.g. as criminal accomplice or joint tortfeasor)– Narrower• Only crime/fraud, not all legal violations

– Broader• Can counsel or assist crime/fraud without aiding in a

manner that would make one criminally or civilly liable under the law of crime/fraud

-Hazard’s gloss on lawyer’s duty under civil and criminal law to refrain from “assisting” a client in conduct that is “illegal”

- client is engaged in course of conduct that violates criminal law or is intentional violation of a civil obligation (other than breach of contract or failure to sustain good faith claim to property)- lawyer has knowledge of the facts sufficient to reasonably discern that client’s course of conduct is such a violation- and lawyer facilitates client’s conduct – by giving advice that encourages the client to pursue the conduct or indicates how to reduce the risks of detection, or by performing an act that substantially furthers the course of conduct

1) client gives what you know to be lies for the SEC filing- you include the lies in the filing and submit them to the SEC- you are liable for securities fraud (you made the misleading statement or omission)2) your client asks you to tell buyer what you know are inflated assets in a business he is selling- you do so- you are liable for common law fraud or for aiding and abetting common law fraud3) you represent a majority shareholder seeking to squeeze out a minority shareholder in breach of his fiduciary duty, by drawing up amendments of the corporate bylaws. - In some jurisdictions you are liable for aiding and abetting breach of fiduciary duty

You recommend to your client to breach a contract (efficient breach)- you are not liable for aiding and abetting breach of contract

disciplinary law

• 1.2(d) • A lawyer shall not counsel a client to engage,

or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

• A client comes to you and says that he plans to painlessly euthanize his mother, who is suffering from Alzheimers. He fully expects to be arrested, but thinks that the law against euthanasia in such cases is unjust. He asks you to defend him if he is indeed arrested. May you agree under Rule 1.2(d)?

• Would it make a difference if the client thought not merely that the law against euthanasia was unjust but also that it was unconstitutional?

• You are defending a client on a murder charge. He is out on bail, although this took a good deal of arguing on your part, since he showed some signs of being likely to flee the country. Your client asks you what countries do not have extradition treaties with the United States. What do you do, under Rule 1.2(d)?

• Your client is a loan shark and wants you to draft up a loan agreement form. The form is to include interest rates that you know are usurious and other terms that you know are legally unconscionable. Under Rule 1.2(d), may you draft the form?

• A client comes to you for tax advice. He wants to know at exactly what level of claimed deduction the IRS is likely to audit someone whom it suspects of making fraudulent deductions for charitable contributions. You know that the IRS never audits anyone on this ground if he claims less than $300 of charitable contributions. May you tell your client this?

• You and your client are engaging in the negotiation of an agreement between your client and a retailer. You discover that while you were out of the room your client falsely told the retailer that no significant competitor for your client's product is likely. In fact, you and the client know that a competitor is about to introduce a cheaper and better version of your product in a few weeks. Negotiations are about to continue. Under the Model Rules, must you withdraw?