Legal Ethics for Social Services Attorneys Institute of Government 2006

Problem #1 Institute of Government 2006

Institute of Government © Rule 1.3 Diligence Lawyer must act with reasonable diligence  Lawyer’s workload must be controlled  So each matter can be handled competently

Institute of Government © Rule 1.1 Competence Lawyer shall not handle legal matter  Knows or should know not competent  Without associating competent lawyer

Institute of Government © Rule 1.1 Competence  Legal knowledge, skill, prep & thoroughness reasonably necessary for representation  Adequate inquiry & analysis of facts & law  Use of methods & procedures employed by competent practitioners  Depends on what is at stake, complexity, etc.

Institute of Government © Rule 1.16 Lawyer may not represent client  Decline or withdraw from representation  If representation will violate RPC  Lawyer should decline representation  If can’t provide competent representation

Problem #2 Institute of Government 2006

Institute of Government © Rule 1.1 Competence Lawyer shall not handle legal matter  Knows or should know not competent  Without associating competent lawyer

Institute of Government © Rule 1.1 Competence  Legal knowledge, skill, prep & thoroughness reasonably necessary for representation  Depends complexity, experience, etc.  Special training & prior experience not always required  OK to if lawyer can obtain competence via reasonable preparation

Institute of Government © Rule 1.16 Lawyer may not represent client  Decline or withdraw from representation  If representation will violate RPC  Lawyer should decline representation  If can’t provide competent representation

Problem #3 Institute of Government 2006

Institute of Government © Rule 4.2 Lawyer shall not communicate  Directly or through acts of another  With person represented by another lawyer  If actually knows person represented  Even if represented person consents  About subject of representation  In representing client

Institute of Government © Proposed 2005 FEO 5 Rule 4.2 doesn’t apply to all employees  “Key” employees or officials  Elected officials & managers  Authority to “bind” entity  Direct or consult with lawyer on matter  Participate substantially in representation

Institute of Government © Rule 4.2 Exceptions  Other lawyer consents  Legal authority or court order  OK to talk to elected official  In writing with copy to government lawyer  Orally with notice to government lawyer  In course of legal proceeding

Institute of Government © Rule 4.2 Exceptions  OK to encourage client to communicate  With represented person to resolve matter  Don’t need opposing attorney’s consent  Talk with witnesses (except physician)

Institute of Government © Rule 3.4 Lawyer shall not request person  Other than client  Or client’s agent or managerial employee  To refrain from voluntarily providing  Relevant info to opposing party OK to advise witness of legal rights  Unless witness’ interest adverse to client  Rule 4.3

Problem #4 Institute of Government 2006

Institute of Government © Rule 4.2 Lawyer shall not communicate  Directly or through acts of another  With person represented by another lawyer  About subject of representation  In representing client  Without other lawyer’s consent

Institute of Government © RPC 249 (1997) Child represented by GAL & attorney advocate in juvenile proceeding  Parent’s attorney may not interview child  District attorney may not interview child  DA may not instruct sheriff to interview child  DSS attorney may not interview child

Problem #5 Institute of Government 2006

Institute of Government © Rule 1.10 Imputed Conflict While lawyers are associated in firm  None shall represent client  If any one alone would be disqualified due to conflict of interest under Rule 1.7 or 1.9  Except disqualification based on personal interest that doesn’t materially limit representation

Institute of Government © Rule 1.7 Concurrent Conflict Lawyer shall not represent client  If concurrent conflict of interest exists  Representation of one client “directly adverse” to another client  Representation of one client “materially limited” by responsibilities to another client (or former client, third party, or personal interest of lawyer)

Institute of Government © Rule 1.7 General Rule Lawyer may not represent client  Against another client in same matter  Against another client in unrelated matter  Unless …

Institute of Government © Rule 1.7 Exception  Lawyer reasonably believes she can provide competent representation to each client, and  Not prohibited by law, and  No claim by one client against other in same proceeding, and  Each client gives informed consent  Confirmed in writing

Problem #6 Institute of Government 2006

Institute of Government © Rule 1.9 Lawyer who formerly represented client  Shall not represent another client  Whose interest is adverse to former client  In same or substantially related matter  Unless former client gives informed consent  Confirmed in writing

Institute of Government © Rule 1.9 Substantially related matters  Same transaction or legal dispute, or  Substantial risk that info obtained in prior representation of former client  Would advance second client’s position in subsequent matter

Institute of Government © Rule 1.6 Lawyer shall not reveal info  Acquired during relationship with client  Without client’s informed consent  Or permitted by RPC Former client  Duty of confidentiality continues after lawyer-client relationship terminated

Institute of Government © Rule 1.9 Lawyer who formerly represented client  Shall not reveal info relating to former representation except as allowed by RPC  Shall not use info to disadvantage of former client unless info generally known or except as allowed by RPC Same rule if lawyer’s former firm  Formerly represented client

Institute of Government © Rule 1.9 Lawyer shall not represent person  If lawyer’s firm represented client whose  Interest is materially adverse to person  In same or substantially related matter and  Lawyer has actual knowledge of  Confidential info (Rules 1.6 & 1.9(c))  Unless former client gives informed consent  Confirmed in writing

Problem #7 Institute of Government 2006

Institute of Government © Rule 1.7 Concurrent Conflict Lawyer shall not represent client  If concurrent conflict of interest exists  Representation of one client “directly adverse” to another client  Representation of one client “materially limited” by responsibilities to another client (or former client, third party, or personal interest of lawyer)

Institute of Government © Rule 1.7 Exception  Lawyer reasonably believes she can provide competent representation to each client, and  Not prohibited by law, and  No claim by one client against other in same proceeding, and  Each client gives informed consent  Confirmed in writing

Institute of Government © Rule 1.6 Lawyer shall not reveal info  Acquired during relationship with client  Without client’s informed consent  Or permitted by RPC Former client  Duty of confidentiality continues  After lawyer-client relationship terminated

Institute of Government © Rule 1.18 Prospective Client Lawyer shall not use or reveal info  Obtained from prospective client  Even if no attorney-client relationship ensues  Unless permitted under Rule 1.9

Institute of Government © Rule 1.9 Lawyer who formerly represented client  Shall not reveal info relating to former representation except as allowed by RPC  Shall not use info to disadvantage of former client unless info generally known or except as allowed by RPC Same rule if lawyer’s former firm  Formerly represented client

Problem #8 Institute of Government 2006

Institute of Government © Rule 2.1 Advisor Lawyer shall render candid advice  Exercise independent professional judgment May provide non-legal advice  Moral, social, political, economic factors  Relevant to client’s situation May give advice without being asked  If doing so is in client’s best interest

Institute of Government © Rule 1.2 Lawyer shall abide by client’s decisions  Regarding objectives of representation If lawyer & client disagree regarding means  Consult & seek mutually agreeable resolution  If disagreement can’t be resolved  Client may discharge lawyer  Lawyer may withdraw as per Rule 1.16(b)(4)

Institute of Government © Rule 1.16 Lawyer may withdraw from representation  If client insists on taking action  That lawyer considers repugnant, imprudent, or contrary to lawyer’s advice, or  With which lawyer fundamentally disagrees If lawyer withdraws  Must give reasonable notice to client  Take steps to protect client’s interest

Institute of Government © Rule 1.13 Organization Client Lawyer retained by organization  Represents organization  Acting through duly authorized constituents Lawyer generally must accept  Decisions made by authorized constituents  Even if utility or prudence is doubtful

Institute of Government © Rule 1.13 Lawyer shall take reasonable steps  To protect organization’s best interest  Ask for reconsideration  Take to higher authority  If officer’s or employee’s actions  Violate law or legal obligation to organization  Risk substantial injury to organization

Legal Ethics for Social Services Attorneys Institute of Government 2006