Instructor:

Julie Saren, Esq. julie@saren.com

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Introductions Syllabus review and course expectations What are ethics Who regulates the profession
Scope Formation of ACR Termination and withdrawal
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Introduction to the attorney-client relationship

 Syllabus Attendance policy Participation and discussion In class or take home exercises? Yes Quizzes? Possibly Mid-term? No MPRE practice exam? Yes Final exam? Closed book -- essay and m/c
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Why is this class necessary?

"A law school shall require each student receives

substantial instruction in the history, goals, structure, values, rules, and responsibilities of the legal profession and its members."
SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, AMERICAN BAR ASSOCIATION, STANDARDS: RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS (2006)

Why is this class important? Who should teach it?

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 What makes law a profession?

Isnt it also a business/livelihood?

Ethical tensions are the nature of the practice

Economic and non-economic interests Overly zealous representation to those who can aord it and little to nothing for those who cannot Attorney economic interests, e.g. billable hours Professional and public interests Should attorneys be morally accountable for the fairness of the outcomes they achieve for clients?
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During the class, you will be asked to consider

ethics rules (and their exceptions) Guidelines for evaluating a rule:

What value does the rule protect or support? What assumptions are you making about how the

rule aects behavior of clients and lawyers

And are those assumptions accurate?

How should one choose between competing

rules?

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 Client centered
so long as clients means and ends are lawful, lawyer should

have no qualms whether they are fair or hurt others

Autonomy of lawyers is important

lawyers are moral agents entitled to decline to be

instruments of injury to others, even if lawful

Some clients are bad

Bad clients (e.g. criminal/fraudulent) are owed no

professional concern or protection

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Attorneys can be tempted

Conict rules help minimize the possibility of abusing the

Attorneys may not be competent

In addition to quality control, a compensation system

clients trust for your own benet

exists when lawyers fall too far below standard

Legal rules should promote justice & fairness Legal rules should not simply to serve the bar
Question if the interests of attorneys animate the rule
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And lawyers should care about these concepts too

 To think like a lawyer

Understand legal process; analyze; see both sides;

use precise language; research; utilize facts and precedent; construct persuasive argument
To think like a professional
Reect on the kind of lawyer you want to be;

consider the social and cultural impact of your work; utilize your moral imagination; be mindful of the balance between your work and your self
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 The States police power regulates businesses

and professions

Courts (ethics rules, case law, Rules of Court) Legislature (developing bodies of law that govern

the practice) Bar Associations (admission, continuing education and discipline system)

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State supreme courts oversee the legal

profession in that state and manage the state bars and discipline process
State trial and appellate courts regulate lawyers

appearing before them.

CA Rules of Professional Conduct
Judge-made law; also includes rules of court, e.g. procedure, discovery Adopted by CA Supreme Court in 1927, revised in 1975 and 1989. Mirror some (not all) of the ABA Model Rules
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 In CA, the legislature regulates the formation

and operation of the bar through Bus. & Prof. Code 6000, et seq Some important parts of the State Bar Act:
Fee agreements The lawyers duty of condentiality (6068) was dened in the State Bar Act, rather than in the California Rules of Professional Conduct
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Mandatory bars
Aka integrated bar Majority approach in the US, including California Minority approach

Voluntary bars

Bar Associations assist the state in regulating

attorneys and imposing discipline

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 Lawyers are governed by other sources

of state law, e.g.

Criminal Civil Evidence Civil Procedure

This includes the law of legal malpractice,

breach of duciary duty, and fraud

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In addition to state law and rules, attorneys in

the Federal system have:

Agency practice rules SEC and Sarbanes-Oxley Act

Substantive regulation FTC attempts to regulate lawyers as creditors of clients Court rules and procedures Federal Rules of Civil Procedure regulates the advocacy of the lawyers appearing before the court
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 Federal treaty obligations

Trade agreements and other international

commitments may regulate legal practice Because federal law is the supreme law of the land, these regulations may preempt traditional state-based regulations

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Another very important source of law

aecting attorneys

Ineective assistance of counsel (6th Amendment) Limits on free speech of lawyers (1st Amendment) Advertising; trial publicity; criticizing judges; judicial campaign speech IOLTA accounts (5th Amendment takings clause) Prosecutorial decisionmaking (5th, 14th) Privileges & immunities (lawyer residency reqmts)
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 The ABA does not formally regulate the legal

profession.

Its ethics rules are a model code that states are free

to adopt, modify, or reject.

Nevertheless, the ABA exerts enormous

inuence over the regulation of the legal profession at the state and federal level ABA Model Rules
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ABA Model Rules California Business and Professions Code California Rules of Professional Conduct

Well point out where and how California

departs from the Model Rules It is reasonable to expect an essay question will test the CA-ABA distinction
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The ACR is a contractual relationship

Arising when the client expresses their intent that

the attorney provides the service and attorney either agrees or fails to clearly indicate they do not wish to represent the client
this is implied assent

ACR also arises from court appointments

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 No need for a written agreement No need for money to change hands

No need to explicitly say I will be your

lawyer No need for meeting to be in person

No need for the lawyer to have met the client

ACR can be formed on the phone or via website!

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Mrs. Togstad sought legal advice from attorney Miller in a consultation appointment She described a medical malpractice incident concerning Mr. Togstad Attorney Miller said she probably didnt have a case
Said he would consult with his partner and get back to her

Since he never followed up with her, she assumed his initial assessment was correct and she did not bring suit against her husbands physician.
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if he changed his mind

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By the time Mrs. Togstad got a second legal opinion it was too late to sue the doctor due to the statute of limitations Togstads sued attorney Miller for malpractice Court found an ACR existed with both H&W, elements of malpractice met and awarded $650K In groups of 4, discuss:
Was this a fair outcome? Why or why not? What should Miller have done?

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Not given an opinion and declined the case Encouraged her to get the advice of a

dierent lawyer (referral) Reviewed records and consulted experts before advising her Encouraged her to get a second opinion Sent a letter memorializing the conversation
Could have cleared up misunderstanding and

created a record

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 Whether they are not yet or not taken

Must use reasonable care in advising Must keep condential any information received Must protect any client property received Must not be adverse Must decline representation of others in the same or related matter

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 May be dened and limited by agreement Limited scope representation requires

informed consent. See Rule 1.2(c) Lawyer should pursue clients matter but must never advise client to commit a crime or fraud. See Rule 1.2(d)
It is appropriate to give your opinion on the likely

consequences of your clients conduct

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Client decides objectives of representation

Client decides whether to testify; plead; accept

Attorney decides law, tactics, strategy

settlement oer; waive jury trial; or appeal

That requires consulting with the client regarding

the means to pursue the objectives

Discussion: Just how practical is this division

of decisionmaking?

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 By client
As determined by case law Can re for any reason and for no reason Even for some discriminatory reasons

Discharging a court-appointed attorney may

depend on applicable law Client with diminished capacity may lack capacity
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Withdrawal is mandatory when:

Continuing the ACR would breach ethics rules or

CA RPC on mandatory withdrawal (3-700(B)),

other governing law (Rule 1.16(a)(1)); or Lawyers physical or mental condition materially impairs the lawyers ability to carry out the representation (Rule 1.16(a)(2)); or The lawyer is discharged (Rule 1.16(a)(3)).

is substantially similar to the ABA rule 1.16(a).

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 Withdrawal is permissive when:

Can be done without material adverse eects on

the interests of the client (Rule 1.16(b)(1)) Client persists in conduct the lawyer reasonably believes is criminal/fraudulent (Rule 1.16(b)(2)) Client has used lawyers services to perpetuate a crime or fraud (1.16(b)(3)) Client insists upon action that is repugnant to the lawyer and with which the lawyer has a fundamental disagreement (1.16(b)(4))
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Withdrawal is permissive when:

Client has breached an obligation to the lawyer

and was warned that the lawyer would withdraw if the breach was not remedied. (Rule 1.16(b)(5)) Representation will unduly burden the lawyer nancially or the client has rendered the ACR unreasonably dicult (Rule 1.16(b)(6)) Other good grounds (1.16(b)(7))
CA RPC at 3-700 (C), provide similar grounds

for permissive withdrawal, and then some

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 Death or incapacity of lawyer

Lawyers incapacity includes loss of law license

Death or incapacity of client Court orders termination of the ACR When lawyer changes rms
Typically results from an order granting disqualication
Client has the right to decide who will continue with the ACR Many recommend the departing lawyer and the prior rm write a joint letter asking the client to decide who will represent it going forward
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When does the relationship end?

When the work is done? When you have not done

any work for a long time? How long? Episodic clients may have reasonable expectations
If the ACR is ongoing, then the attorneys duty to the

current client remain in eect (so does liability for any failure to perform

Best practice: Clarify ambiguous relationships

Send a friendly termination letter at conclusion
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Duties of Attorney
Competence (Rule 1.1) Diligence (Rule 1.3) Communication (Rule 1.4) Review components of B&PC 6068

Condentiality (Rule 1.6, 1.9) and privilege The entity as client (Rule 1.1)

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