1. 1 Some more on the unauthorized practice of law

2. 2 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: (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.

3. 3 What does it “arise out of or reasonably related” mean? Comment 14: “A variety of factors evidence such a relationship. The lawyer’s 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.”

4. 4 1) you represent a Californian in Va concerning Va accident. The Californian then asks you to represent her in Cal concerning transactional matter. Would this work? 2) your represent a Virginian in California concerning a transactional matter

5. 5 “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.” E.g. you represent a Californian in California concerning the signing of a contract with another Californian to build a hospital in Va

6. 6 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.

7. 7 Introduction to Lawyer Client Relationship

8. 8 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

9. 9 When is a lawyer-client relationship established? – Not in model rules – A question of state contract/tort law – No money needs to change hands!

10. 10 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.

11. 11 Togstad v. Vesely, Otto, Miller & Keefe (Minn. 1980)

12. 12 Woman’s 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 didn’t call back so she assumed no case

13. 13 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

14. 14 Togstad letters

15. 15 NOTE: Duties to prospective clients who never become actual clients – Eg confidentiality

16. 16 Even if you choose to establish an attorney client relationship, you can protect yourself by limiting the scope of the representation

17. 17 Limiting the scope of representation – Limitation can be temporal (we’re through) as well as by subject matter – Lawyer’s duties are related to the scope – E.g. Assume you have represented a client solely concerning a store the client owns, but you learn from him that he has been in a car accident – Cannot be found to have committed malpractice for letting the statute of limitations run on his tort action

18. 18 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.

19. 19 What is a reasonable limitation?

20. 20 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.

21. 21 Allocation of Authority between lawyer and client Two issues 1) when can lawyer bind client - issue of agency law 2) when can lawyer be disciplined (1.2a) for acting contrary to the client’s wishes

22. 22 Lawyer may bind client if Express agency – Client explicitly tells lawyer that he can act on his behalf concerning the matter Eg accept an offer of settlement – In some cases client is prohibited from giving express authority Eg pleading guilty or not guilty in criminal case – Can revoke at any time

23. 23 Implied agency – Authority that lawyer has by virtue of creation of attorney-client relationship – Does not (usually) include power to settle a civil case – But includes many acts in court, e.g. the power to make admissions binding on the client

24. 24 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.

25. 25 Even if you can bind the client, you can still be disciplined

26. 26 1.2a 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.

27. 27 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.”

28. 28 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.

29. 29 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

30. 30 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.

31. 31 Anders Brief request to withdraw but includes brief “that refers to anything in the record that might ‘arguably support the appeal.’”

32. 32 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.

33. 33 Disabled Clients

34. 34 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.

35. 35 (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.

36. 36 (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

37. 37 Compulsory Limitations on Scope – counseling or assisting crime/fraud

38. 38 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

39. 39 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.

40. 40 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)?

41. 41 Would it make a difference if the client thought not merely that the law against euthanasia was unjust but also that it was unconstitutional?

42. 42 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)?

43. 43 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?

44. 44 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?

45. 45 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?

46. 46 You represented a company that obtained loans from a local bank. In issuing the loans, the bank relied upon your opinion letter, which certified that the company had sufficient valid contracts with customers to repay the loans. You subsequently learn that the company is in a worse financial situation than you were led to believe, because many of the documents that you relied upon were forged by the company's officers. You know that the company intends to apply for future loans from the same bank. The company has agreed that it will not ask you to represent it in further dealings in which the validity of your opinion concerning the company's worth would be relevant. May you represent the company in another capacity?

47. 47 Comment 10 to 1.2 A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

48. 48 R. 4.1 In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

49. 49 1.6b – exceptions to duty of confidentiality (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

50. 50 Permissive rejection of prospective clients

51. 51 Rule 6.2 Accepting Appointments A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

52. 52 TERMINATING REPRESENTATION

53. 53 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.

54. 54 1.16(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.

55. 55 Permissive withdrawal

56. 56 1.16(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;

57. 57 (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

58. 58 (3) the client has used the lawyer's services to perpetrate a crime or fraud;

59. 59 (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

60. 60 (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;

61. 61 (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

62. 62 (7) other good cause for withdrawal exists.

63. 63 1.16(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.

64. 64 You take a product liability case from a client, but the next day you decide that instead you want to take a trip to Greece. May you terminate the representation?

65. 65 You represent a plaintiff in a product liability case. A few days before trial, your client is offered what you think is a very generous settlement that he should snap up. He refuses. May you withdraw?