Legal Profession Class 7
C hired attorney A to draft a trust agreement naming B as a beneficiary. A drafted the trust agreement negligently, making it subject to an unnecessary tax; the tax reduced the amount that B could receive from the trust. Can B sue attorney A for malpractice as a third-party (not the client)?
Because B was intended to benefit from A's services, and because the potential for harm to B was obvious, B has a good malpractice claim from A
Attorney A decided not to take the pretrial deposition of witness Y. A's motive was to save litigation expenses for her client; further, it appeared that X's testimony would be peripheral and unimportant. At trial, X turned out to be a critical witness for the adversary. Is Attorney A liable for malpractice? What would happen if the witness was a key witness in the case? For example, is Attorney A liable for malpractice if in a medical damages malpractice lawsuit, A represents the injured plaintiff and she fails to interview the only nurse in the operating room?
Even if A's failure to take X's deposition caused A's client to lose the case, A has not committed malpractice if her judgment was well-informed and reasonably exercised. But in the second example, it is more ignorance than a tactical decision. No excuse. The attorney would be liable for malpractice.
You represent real estate developer Simon Shout, who is the sponsor and builder of condominiums. In closing the sale of the first completed unit, you learn that Shout has changed the offering documents you drafted in order to defraud customers. You withdraw from representation, following the proper steps. Are you permitted to disclose your information about Shout's fraud?
Make sure students know that many times in 1.6 questions, will also have a withdrawal element too possibly. Need to understand what the issue is. Under 1.6(b), a lawyer may reveal information to prevent a crime or fraud by the client that is reasonably certain to result in substantial injury to financial or property interests of another if the client has used or is using the lawyer's services to commit the crime or fraud. Facts here support this exception to confidentiality.
You graduate from law school, pass the bar, and hang out a shingle as a general practitioner. Ted Thomas hires to represent you in a product's liability action against the Toxic Company. An inside scientist, Dr. Hyde, knew that the company was doing bad things and had created records proving the toxic nature of the products. An experienced lawyer would have subpoenaed the company's records, but it never occurs to you to do that and you lose the case. When he reads about the decision in the local newspaper, Hyde calls Thomas to ask why the lawyer never called him to testify and did not subpoena the records. Thomas sues you for malpractice based upon your incompetence. You claim you breached no duty of care because your work met the standard of care for a new lawyer. Who wins?
Thomas wins. New practitioners don't get a different standard of competence from that imposed on more experienced practitioners.
You defend Matt Mingle in a breach of contract action brought by Johnson. Matt misleads you in private conversations in your office into asserting a worthless defense based on false data. Matt loses the case and sues you for malpractice. In defending yourself, you disclose the conversations with Matt. Are you subject to discipline?
This is an exception to the 1.6 Rule. A lawyer may, in her discretion, disclose the information if there is a controversy between her and the client, and the disclosure is necessary to establish her claim or defense. Thus, you may disclose the information, to the extent necessary, without fear of discipline.
Norman Jones is arrested on murder charges. He hires you to represent him. You have serious doubts about his mental competence. He discharges you in a fit of rage. What should you do?
Usually, as a rule, the client has the absolute right to discharge (fire) the attorney at any time. However here b/c of incompetent-client scenario, you should make a special effort to consider consequences of firing you. 1.16 cmt. [6]. Then, if that doesn't change Norman's mind, you should think about taking reasonably necessary protective action as provided for in 1.14(b). See 1.16, cmt. [6].
You represent Aria Jones in his criminal trial for extortion. She is acquitted. However, she refuses to pay you, and you sue her to recover unpaid legal fees and unreimbursed expenses. In support of your claim, you allege how many hours you spent on Jones's behalf, details of the expenses, and precisely what services are rendered. Are you subject to discipline for disclosing Jones's confidential information?
Exception to client confidentiality rule. MR 1.6(b)(5). You may disclose the information, to the extent necessary to establish and collect your fee, without acting improperly. But must only reveal the information to the extent necessary to establish or collect your fee. You couldn't use it, in an example, to force Jones to pay you by threatening to disclose the information to credit-reporting agencies.
An attorney represented a client who has a long criminal history and thus thinks he knows a lot about criminal law. The client told the attorney to let him testify in his latest criminal case and to call his brother, who also has a long criminal history, as a character witness. Worried that the client's rough demeanor and sleazy mannerisms would alienate jurors and that the client would open the door to questions about his prior convictions, the attorney refused to allow the client to take the stand. The attorney also refused to call the client's brother to testify on the client's behalf. The client was subsequently acquitted. Should the attorney be subject to discipline? (A) Yes, because he did not allow the client to testify. (B) Yes, because he did not call the client's brother as a character witness. (C) No, because an attorney can choose the trial strategy. (D) No, because the client was acquitted.
(A). Under RPC 1.2(a), the attorney should have let the client testify despite the attorney's concerns. Always get to do so in a criminal case. (B) is wrong because that is a tactical decision and not be a reason to discipline attorney (not the client).
A criminal defense attorney voluntarily submitted his name for inclusion on a list of attorneys willing to serve as appointed counsel for indigent criminal defendants. The criminal defense attorney is also quite active in local community efforts on behalf of the underprivileged and abused children, and he takes on many cases on a pro bono for children needing protection from abusive homes or help from government social service agencies. The clerk of the local criminal court contacted the criminal defense attorney and told him that his name was next on the list for appointed counsel and that the next case involved a particularly poor defendant. The criminal defense attorney had read about the case in the newspapers and believes that the defendant was guilty of the crimes charges - that the defendant committed a series of murders involving children and torture. Personally revolted by the prospect of defending someone who victimized innocent children, and fearing that the negative publicity from the trial would jeopardize his standing with the various community groups he belonged to, the criminal defense attorney falsely told the clerk that he was going on an extended business trip and would be unable to represent any new clients for the next two weeks. The criminal defense attorney asked the clerk to skip over his name for this appointment and stated truthfully that he would be happy to take the next indigent defendant case available upon his return. Was it proper for the criminal defense attorney to seek to avoid appointment to represent the defendant? (A) Yes. An attorney should not agree to represent a criminal defendant if the attorney has already formed an opinion that the client is guilty. (B) Yes. An attorney should not take a case to represent a client if the attorney's personal feelings are so strong that the representation of the client is likely to be impaired. (C) No. An attorney cannot make a false or misleading statement to a clerk of court once he is sought as appointed counsel for an indigent criminal defendant. (D) No. An attorney who asked to be on the list to represent indigent criminal defendants cannot refuse to take cases offered once he is sought as appointed counsel for an indigent criminal defendant.
(B). A L can seek to avoid representation for good cause. (RPC 6.2). An example of good cause includes where the client or 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. [RPC 6.2(c)].
A lawyer was just admitted to practice. A client walks into his office with a very complex land-use planning problem. The lawyer never took land-use planning in law school and knows nothing about the topic. He explains to the client that he is a newly admitted lawyer with no competence in the area. Nevertheless, the client says that he is very impressed with the lawyer, insists that the lawyer represent him, and agrees to waive any malpractice claim that he may later have against the lawyer. After the client signs the waiver, the lawyer takes the case. Is it proper for the lawyer to represent the client? (A) Yes, because he can associate with co-counsel who is an expert in land-use planning. (B) Yes, because he can buy a practice manual on land-use planning and study it without charging the client for his study time. (C) No, because he did not advise the client correctly about the prospective malpractice waiver. (D) No, because the Rules do not allow prospective malpractice waivers.
(C): L is not permitted to make an agreement with a client prospectively waiving or limiting the lawyer's malpractice unless the client is independently represented in making the agreement. RPC. 1.8. Although the lawyer tried to talk the client out of hiring him, he did not insist that the client be independently represented regarding the waiver. Therefore, the lawyer should withdraw from the case and not charge the client.
A lawyer has recently been diagnosed with a sleep disorder that causes him to fall asleep without warning. His doctor has not yet found the appropriate medication regimen that would keep him from falling asleep in court. A client, sympathetic to the lawyer, signs a waiver and wishes to have the lawyer represent her anyway, even though his inability to stay awake is likely to affect her case. The lawyer continues to represent this client. Is the lawyer's conduct proper? (A) Yes, because the client signed a waiver. (B) Yes, because lawyers may always choose which clients to represent. (C) No, because the lawyer did not obtain permission from the court. (D) No, because the lawyer must withdraw from representation if he has a physical condition impairing his ability to serve the client.
(D) A L must withdraw from representation if he has a physical condition impairing his ability to serve the client. A L shall not represent a client or where the representation has commenced, shall withdraw from representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. No provision for waiver to bypass the rule. [RPC 1.16]
John is a paralegal for the NK law firm. One day, senior partner Lara tells John to get a file for her. John tells her to "take a hike." John is a competent worker who has always observed the rules of the office, including the rules concerning client confidentiality, but he also has attitude problems, so Lara fires him. Two weeks later, a lawyer at another firm tells Lara that John has been sending NK memos to prospective employers a sample of his own writing. The memos disclose many confidences of the firm's clients. What can Lara do to avoid discipline for John's conduct?
If we assume for purposes of our answer that Lara had properly instructed and supervised John on the issue of client confidences and that non or his prior problems should reasonably have suggested this present conduct. Model Rule 5.3 - Lara may not be responsible for John's conduct, but he is under a duty to compel her to stop it and to mitigate its effects. First of all, she must tell his clients what has happened and help them to avoid the consequences. She must write to John insisting that he stop. If he does not, she must enjoin her. She must write to all attorneys he has contacted or likely to contact and ask them to return the memo.
You represent James Haus in a criminal case. James is out on bail. He knows he is likely to be convicted and tells you that he plans to commit an armed robbery of a bank to provide a nest egg for his family while he is free (and not in prison). Are you subject to discipline if you disclose Haus's intent to the police?
Issue here is whether a client may disclose confidential information disclosing the client's intention to commit some crimes. 1.6(b)(1). Under 1.6(b), the lawyer may reveal the client's information to prevent reasonably certain death or bodily harm. The threat to commit armed robbery would certainly come under this provision because there is a present and substantial threat that someone will be hurt or killed in the armed robbery. (FYI: If there is not reasonably certain death or substantial bodily harm, then the exception would not apply - Example: Parent kidnapping child who he loves in violation of court order with no threat of violence. Further, if Haus has used your services in furtherance of his plans to commit the robbery, you may disclose information to the extent necessary to prevent the robbery under MR 1.6(b), which allows disclosure to prevent a crime that is reasonably certain to result in substantial injury to financial or property interests of another if the lawyer's services have been used in connection with the crime. Not a duty but discretionary
A client asks his tax attorney a series of questions about how best to manage his money. His final question is what would happen if he hid $10,000 worth of cash so that the IRS would not find out about its existence. The attorney answers honestly by telling him that he would likely subject himself to criminal liability and advises him against taking such action. Is the attorney's conduct proper? (A) Yes, No merely answering a question is not the same as assisting in a crime. (B) Yes, because of the attorney-client privilege (C) No, because an attorney may not advise a client regarding a course of action that is fraudulent or illegal. (D) No, because attorneys should avoid answering questions that are not directly related to the case at hand.
Merely answering a question is not the same as assisting in a crime. The Model Rules prohibit a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition does not prevent the lawyer from giving an honest opinion about the actual consequences that are appear likely to result from client's conduct. RPC 1.2 [cmt 9].
Mary hired lawyer L to bring a civil suit against D. As it turned out, Mary's claim against D had no sound factual basis, and L would have recognized that from the outset had L not been negligent. D incurred trouble and expense in defending the suit. Can D sue the lawyer for malpractice?
No, D has no negligence claim against L because D was not intended to benefit from L's services and D was not any other type of protected nonclient.
The legislature in Lawyer's jurisdiction has recently passed a "Plain English" law, requesting all consumer contracts to be drafted in terms that make sense to non-lawyers. The fast loan company ("FLC") drafts a new form loan agreement that will comply with the new law. Consumer Jane Doe comes to Lawyer complaining that FLC has a form that no one can understand and violated the Plain English law. She tells Lawyer her story of being taken advantage of by FLC and she reveals confidential information about her finances. Jane Doe asks lawyer to represent her in a lawsuit against FLC. The lawyer decides not to represent Jane. Can the lawyer later defend FLC when the company contacts him for representation? ANS: No, because Lawyer owes Jane a duty of confidentiality as a prospective client and Lawyer would have to abuse the confidences of Jane in order to represent FLC in this matter. Still duty of confidentiality under 1.18(b).
No, because Lawyer owes Jane a duty of confidentiality as a prospective client and Lawyer would have to abuse the confidences of Jane in order to represent FLC in this matter. Still duty of confidentiality under 1.18(b).
You have two clients, Jason and Sandra, who are married to each other. Sandra tells you, out of Jason's presence, that she intends to divorce Jason and run away with her boyfriend, Zeus. Jason, out of Sandra's presence, tells you that he intends to transfer a valuable piece of property to Sandra as a token of his affection for her. May you tell Jason about Sandra's plans? Why would this be a problem?
No, can't disclose the confidential information from one client to another client. MR 1.6(a). Also, can't tell Sandra about Jason's gift to influence Sandra into not running away with Zeus. NOTE: There is also a conflict of interest problem too under MR 1.7 if Jason asked you to draft the documentation to transfer the property to Sandra. Would have to withdraw from representing both clients. (Will discuss this issue later in a future class.)
You represent business partners, Aaron, Baker, and Cold. They want to develop a tract of land in town and encounter some zoning problems. You want to discuss the case with Jane Jackson, a sole practioners with experience in zoning issues. If you get consent from Aaron to discuss the matter with Jackson, may you do so?
No. As part of her duty to preserve client confidences, a lawyer may not disclose confidential information to another lawyer outside her own firm without the client's consent. Where there are multiple clients, every client must consent to the disclosure. Here, you needed the consent of all three partners. Because that didn't happen here, your action was not proper. You can discuss the matter with Jane in the abstract without your client's consent, if you take care not to disclose your client's confidences, but you must be careful not to disclose anything that may suggest to him who your client is.
You represent Lisa Douglas. She tells you that she's going to kill her husband, Tyron Douglas, and collect the insurance proceeds so that she can afford to marry her boyfriend, Marty Marson. If you do not disclose Lisa's intent to the police in order to prevent a crime (or, at least to Tyron, so he can protect himself), are you subject to discipline?
No. Lawyer has the discretionary right to disclose such information to prevent the intended crime. However, this disclosure is a discretionary right, not a duty.
Kendra Kind decides that her husband, Joe Johnson, is a not a good husband and wants to divorce him. Kendra hires you to represent her. During one conference, she discloses to you that while married to Luke she had an affair with Hans Handsome. This confidence is not revealed during the proceedings, and Joe has no idea about it. Immediately after the proceedings, Kendra and Joe get back together again. Kendra refuses to pay your fee, believing that since she's back with her husband, she owes you nothing. You call her and tell he, "Pay my fee or I will tell Joe about your affair with Hans." Are you allowed to collect your fee in this way?
No. The exception to the duty of confidentiality providing for fee collection only allows you to reveal facts necessary to establish your fee (e.g., to show that you performed the services) or collect your fee (e.g., attach client property). MR. 1.6. You can't blackmail the client by threatening to spill secrets.
You represent a famous movie star, who is overwhelmed by a cocaine addiction and decides to go to a rehab center to get over the habit. To protect his reputation, he asks you to keep all of this quiet. You hear your new law clerk tell a friend on the phone about the movie star's addiction. You realize that you have never cautioned her about the confidential nature of your practice. Are you subject to discipline?
YES. MR 5.3 - lawyer has a general duty to preserve the confidences of his clients. This duty carries with it the responsibility to control the conduct of the lawyer's employees and non-lawyer assistants. A lawyer must take reasonable care in selecting and training employees and assistants with access to client information to ensure that they honor the client's confidences. She must also exercise supervision "concerning the ethical aspects of their employment, regarding info not to disclose info.
C asked attorney A to represent him as plaintiff in a products liability case. A said that she would have to check with her partners to make sure the case posed no conflict of interest, and A said that she would "get back to C one way or the other." A never checked with her partners, and she totally forgot C's case. The statute of limitations ran. Was there an Attorney - Client relationship?
Yes
Lawyer L requires his clients to sign a standard, pre-printed retainer agreeemmnt that provides, in part, that the client cannot sue L for malpractice. L's clients are not independently represented in signing his retainer agreement. Is that ok? Is L subject to discipline?
Yes
Tom Henley is arrested for committing murder of several people. He retains you to represent him. Tom is released on bail and fails to show for his arraignment. You know where Tom is hiding out, but Tom tells you not to tell anyone. When you appear at the arraignment without him, the court orders you to disclose Tom's whereabouts. You comply with the order. Have you acted properly?
Yes - you are permitted to disclose Tom's location in response to the court order. Under MR 1.6(a) - duty not to disclose client confidences. But you can disclose confidential information if the court orders him to do so or applicable law requires it. MR 1.6(b), cmt. [13]. In the absence of a court order, Tom's location would be protected as a confidential client information.
Businessman has been charged with fraud and money laundering. In light of this, the authorities have frozen his financial accounts. Prior to the freezing of his accounts, the businessman hired a criminal defense attorney. The criminal defense attorney has been preparing for trial for over a year, conducting investigation and finding expert witnesses. After a year of preparation, the criminal defense attorney has still not received any payment from the businessman. He wants to withdraw from the case, and informs the court of his decision. However, the judge tells the criminal defense attorney that he cannot quit, even though he has yet to be paid. Is the judge's action permissible under the Model Rules?
Yes, 1.16(b) specifically authorizes permissive withdrawal in cases where the client has failed to pay the lawyer after given reasonable warning the lawyer will withdraw if the client doesn't pay. However, in this case, litigation is pending before the court and therefore the court's permission is generally required. A court likely will deny permissive withdrawal where interests of those other than the client or where withdrawal will impede the administration of justice. Here, if businessman had to find new counsel, trial prep would begin again, possibly delaying trial for another year. The Court can deny the motion for withdrawal if it will impede the administration of justice.
You represent David James. You learn that James has decided to renew his lease on "James's restaurant," which is in the Walden shopping mall after learning that a new tourist attraction will be built nearby in the mall. Without telling James, you visit the mall manager and obtain the lease on James's space yourself, without disclosing any information about James's plans. Are you subject to discipline?
Yes, absolutely. No exception here under 1.6 and can't use information to the disadvantage of the client under 1.8. Did bad thing since lawyer took client's lease.
Jane Jackson, real estate developer, hires you to create a limited partnership to develop the Global Mall. She gives you the confidential information you need to draft all the necessary documents, including the prospectus. You believe the deal is a good one, and after complying with all the rules for transactions with clients (MR 1.8), you buy an interest in the limited partnership. Six months later, social media reveals that Jackson defrauded all the limited partners by providing you with false information for the prospectus. You are furious that Jane fed you false information, and you sue Jane for fraud in the purchase of your own interest. You need to plead the facts Jane gave you for the prospectus. May you do so?
Yes, under 1.6(b), a lawyer may reveal confidential information to establish a claim on the lawyer's behalf in a controversy between the lawyer and her client. So yes, disclosure is permissible.
You work for the law firm, Nick & Knut. One of your clients in a divorce matter is Cindy Green. You discuss the case with Kate Krichin, a more senior lawyer, for help on strategy. Cindy is pregnant with another man's child, so time is of the essence. Have you acted properly in disclosing Cindy's confidences to Kate?
Yes, unless Cindy specifically requested that her information be confined to you or to specified lawyers in your firm. MR 1.6, [cmt. 5]. A lawyer has a general duty to preserve the confidences of his clients. However, lawyers in the same firm may disclose client confidences to each other, unless the client specifically requests otherwise. Since there is no evidence of such a request here, you have acted properly. You may also to the extent necessary disclose confidential information to employees and associates of the firm, subject of course to your general duty to instruct these employees regarding the duty of confidentiality. MR 5.1, MR 5.3.
Client C asked attorney A to help him obtain legal protection for a new manufacturing process that C had invented. A realized that he was totally ignorant about the law of patents and trade secrets, but he nevertheless tried to advice C. As a result, C lost his opportunity to apply for a United States patent on his invention. Is the attorney liable for malpractice?
Yes. A breached the duty of care by not sending the client to a patent attorney.
Defendant D hired attorney A to defend him in a criminal case, and D gave A $5,000 as an advance against attorney's fees yet to be earned. Shortly before trial, D became dissatisfied with A's work, fired her, and threatened to sue her for malpractice. A returned the unearned portion of the fee advance to D by a check with an endorsement on the back purporting to release A from all malpractice liability. Is that ok? Is the attorney subject to discipline?
Yes. A lawyer must not settle a pending or potential malpractice claim with an unrepresented client or former client without first advising that person, in writing, to seek advice from an independent lawyer about the settlement and giving that person time to seek that advice.
John Johnson comes to your office as a new prospective client. John tells you in confidence that he plans to buy a large plot of land and use it to build a combination hockey rink /ice show theater, to be called "John's Ice Castle." You decide that the representation is beyond your expertise and you offer to refer John to a colleague in another law firm who is more qualified. He agrees. Since John never employed you, do you have any obligation to preserve his confidences?
Yes. Duty of confidentiality covers preliminary discussions with potential clients even if no client-lawyer relationship arises. Model Rule 1.18
Dena Davis contacts you concerning a personal injury claim against Lucy. After an initial meeting, you tell Dena Davis that you will contact him in a few days and tell him whether or not you will take the case. When you meet, the statute of limitations on Davis's claim has three months left to run; you fail to contact Davis in that time, and she is left without a valid claim as a result. Davis sues you for malpractice based upon negligence. She proves that she would have won the case but for your negligence. You defend on grounds that you didn't formally accept Davis's case, so you can't be subject to a malpractice liability. Are you correct?
Yes. L's duty began when it was reasonable for the client to rely on the lawyer to provide professional advice or to perform some act. Here, reasonable for client to wait for L's response. NOTE: If Davis could not have proven she would have won the lawsuit, likely not be able to show negligence.
Tom Green retains you to apply for a patent for a combination umbrella/solar collector which he claims to have invented. You agree to handle the application for your normal fee, $175/hour. The case is complex and your fees begin to go up. You receive a visit from Green's venture capitalist (the individual that pays for Green's development work) and you respond "As I have told Tom, I am not too hopeful. John James has applied for a patent with similar but superior specifications." Are you subject to discipline?
Yes. Under the Model Rules, all info relating to the client is covered. Telling Green's venture capitalist anything at all was a breach of your duty to Green. Your obligation was to refer the venture capitalist to Green for any information.
You have been appointed by the court to represent David Jones, a man accused of killing someone with a hammer. In your pre-trial meeting with Jones, he tells you the case should be easy to win. "All you have to do is put me on the stand and let me say that I only have an apartment and work as an accountant, so there is no need for me to have a hammer. Also, I already threw out the hammer so there should not be any evidence to contradict me." You tell him you do not want toput him on the stand under these circumstances but he insists. Can you withdraw from the case?
Yes. You know that Jones intends to perjure himself on the stand and you cannot offer testimony under these circumstances. See 3.3(a). If Jones cannot be talked out of his plan to give false testim"ony, you MUST withdraw. 1.16(a)(1) (representation will result in a violation of the RPC or other law.). But because court involved and you are appointed counsel, must get court permission. Can only tell court, "Professional considerations require that I terminate my representation."
