Professional Responsibility Basics aba has zealously V. Nyr's "competance"



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Ali Puente Douglass

Professional Responsibility in New York Civil Practice

Oscar Chase

Spring 2012



  1. Professional Responsibility Basics

    1. ABA has zealously v. NYR's "competance"

      1. Throughough-ness

      2. Preparation

    2. NYR Preamble and Scope:

      1. 1.1:

        1. (a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

        2. (b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.

        3. (c) A lawyer shall not intentionally:

          1. (1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or

          2. (2) Prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

        4. Comment:

          1. Legal Knowledge and Skill:[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to associate with a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances. One such circumstance would be where the lawyer, by representations made to the client, has led the client reasonably to expect a special level of expertise in the matter undertaken by the lawyer

          2. Thoroughness and Preparation: [5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client may limit the scope of the representation if the agreement complies with Rule 1.2(c)

      2. 3.3(a): A lawyer shall not knowingly:

        1. (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

        2. (2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

        3. (3) Offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.

      3. 3.4 Fairness to opposing party and counsel

        1. (a): A lawyer shall not :

          1. (1) suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce;

          2. (2) advise or cause a person to hide or leave the jurisdiction of a tribunal for the purpose of making the person unavailable as a witness therein;

          3. (3) conceal or knowingly fail to disclose that which the lawyer is required by law to reveal;

          4. (4) knowingly use perjured testimony or false evidence;

          5. (5) participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false; or

          6. (6) knowingly engage in other illegal conduct or conduct contrary to these Rules;

        2. (b) A lawyer shall not: offer an inducement to a witness that is prohibited by law or pay, offer to pay or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the matter. A lawyer may advance, guarantee or acquiesce in the payment of:

  1. (1) reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses; or

  2. (2) a reasonable fee for the professional services of an expert witness and reasonable related expenses;

      1. 8.4 MISCONDUCT
        a lawyer shall not:

        1. (c): engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation

        2. (d): engage in conduct that is prejudicial to the administration of justice

    1. Lawyer Client Relationship:

      1. Summary or Lawyerly Obligations

        1. Competence

        2. Confidentiality

        3. Conflict of interest rules (loyalty)

        4. Communication

        5. Client Control of Decisions

      2. 1.2: SCOPE OF REPRESENTATION and Allocation of Authority Between Client and Lawyer (see rule):

      3. 1.4: COMMUNICATION:
        a lawyer shall

        1. (1) promptly inform the client of:

          1. (I) any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(j), is required by these Rules;

          2. (ii) any information required by court rule or other law to be communicated to a client; and

          3. (iii) material developments in the matter including settlement or plea offers.

        2. (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

        3. (3) keep the client reasonably informed about the status of the matter;

        4. (4) promptly comply with a client’s reasonable requests for information; and

        5. (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by these Rules or other law.

        6. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      4. 1.6: CONFIDENTIALITY OF INFORMATION (see rule)

      5. 1.18: DUTIES TO PERSPECTIVE CLIENTS (see rule)

      6. Is there a client here?

        1. A vast majority of attorney-client relationships are still formed the old-fashioned way. By agreement, which can be applied

          1. When:

            1. (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; (2) and the lawyer fails to manifest lack of consent, (3) and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.

            2. Payment is pretty good evidence, but not required

            3. Giving advice over the phone forms a relationship (via a 900 number that charges)

          2. Either party can end the representation by informing the other party if there is a reasonable belief in the other party that they are still in a relationship.

          3. Gionis: going through divorce tells friend he wants to kill his wife; friend later becomes attorney; that statement is not privileged because you weren’t the attorney at the time

      7. What do lawyers owe clients?

        1. Competence:

          1. Defined: “the legal knowledge, skill thoroughness and preparation reasonably necessary for the representation 1.1”

          2. “about half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop”

          3. Incompetence has many parents: ignorance, inexperience, neglect, lack of time

          4. Not every mistake amounts to incompetence

        2. Confidentiality:

          1. Perez Pg. 32: school bus accident. Coke truck driver tries to stop truck at stop sign, the brakes fail, and it collides with a school bus. Kills 21 children by knocking it into a pond.

            1. Lawyers come representing Coke, and telling the truck driver that they are his lawyers and that this is confidential

              1. They end up not repping him and turn his statement over to the DA

              2. They owed him confidentiality because: an agreement to form an attorney-client relationship may be implied from the conduct of the parties. Moreover the relationship does not depend upon the payment of a fee, but may exist as a result of rendering services graciously

              3. Saying they were there to help him was sufficient

              4. Attorney client r.ship “has been described as one of uberrima fides, which means, “most abundant good faith” requiring absolute and perfecet candor, openness and honesty and the absence of concealment or deception.

        3. Diligence (doing a good investigation into the facts).

        4. NY Written letter of engagement: shortly after agreement the attorney needs to send a letter to the client describing the fees and scope of service (as long as reasonably determinable). 22 NYCRR Part 1215: Lawyers are responsible for providing clients with a "written engagements"



    2. Termination Issues:

      1. 1.9: DUTIES TO FORMER CLIENTS (see rule)

      2. 1.14: CLIENTS WITH DIMINISHED CAPACITY (see rule)

      3. 1.16: DECLINING OR TERMINATING REPRESENTATION (see rule)

        1. When not to accept

        2. When to terminate

        3. When can terminate

      4. Termination by Client:

        1. Clients can terminate for any reason or no reason. Even for race

          1. Racial termination is not allowed for employed lawyers (wtf does this mean? Like an attorney at a firm. We theorize it has to do with a single lawyer lobby not wanting to be sued every time they terminate a client of a different race.)

          2. Another court has found that if you can prove it was because of being a jew then 42 USC 1981 should provide a remedy

        2. Indigent criminal defendants may not fire the lawyers who have been assigned to them. They can go pro se or request a new appointment

        3. Litigant with a retained lawyer is not permitted to fire counsel close to or during trial without permission

      5. Termination by Attorney:

        1. Lawyer’s right to terminate is circumscribed by rule 1.16, which tells us when a lawyer may or must withdraw. Leaving a client without a good reason can be characterized as abandonment, which is disloyal and has consequences.

        2. In some states a lawyer who abandons is not entitled to any compensation

        3. There are permissive withdrawals for what might be called “professional” reasons.

          1. If a client states his intention to perjure – you can withdraw, and you do not give up your right to unpaid fees.

      6. Termination by drift

        1. Some representations end for reasons other than their choice. Usually because work ends. But does that mean the end of the professional relationship?

          1. One firm was deemed current counsel because it stored files from that matter; hadn’t marked it closed; and it was listed on settlement documents from the matter to receive a copy of any notice to the client.

        2. Episodic clients: if you do something small for them two or three times a year

          1. The relationship exists during the intervals. It’s like a dentist. Someone is your dentist even though you don’t see them that often

          2. Some firms send out termination letters.

        3. Lingering question: When is an attorney no longer your attorney

    3. Interference with the Client-Attorney relationship:

      1. 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

        1. (a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

        2. (b) Notwithstanding the prohibitions of paragraph (a), and unless otherwise prohibited by law, a lawyer may cause a client to communicate with a represented person unless the represented person is not legally competent, and may counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to represented person’s counsel that such communications will be taking place.

        3. Comment [8] knowledge may be inferred from the circumstances and a lawyers cannot evade this requirement by losing their eyes to the obvious

      2. Nieseg v. Team 1 Pg. 115: are they employees of a corporate party also considered parties?

        1. Upjohn says that confidential communications are protected by A/C privilege even in midlevel and lower employees.

        2. However, this is different because it’s about the underlying facts

        3. So, we balance clarity of a blanket preclusion of this contact, with the danger of losing important information

        4. Control group test: (a corporations controlling members are protected) also does not serve the policy goals of open access to factual information

        5. So we turn to New Test: we look to employees and whether their actions had a binding authority on the corporation – or if they were acting on behalf of counsel  if so, then there must be a formal interview…otherwise informal is fine.

          1. (in effect the corporations “alter egos”)

          2. Confidentiality does not attach to not binding individuals who were interviewed informally

      3. How big of a circle?

      4. Testers? Pg. 119 (people coming to a buyer and pretending to be part of the ordinary public) you are seeking information offered to the general public

        1. Not misrepresentation and clearly falls outside the scope of the a/c relationship

    4. Financing legal services: Fee regulation:

      1. 1.5: FEES AND DIVISION OF FEES (see rule)

        1. Section a discusses not charging excessive fees

        2. Section b regards making clients aware of the scope of fees and representation

        3. Section c describes when contingent fees are allowed and how calculated

        4. Section d No contingent fees for family or criminal

      2. The Role of the Market Place

        1. Brobeck Phlegler & Harrison v Telex Pg. 144: defines unconscionability for a contingent fee arrangement contract – “in these circumstances the contract between Telex and Brobeck was not so unconscionable that no man in his senses and not under a delusion would make on the one hand, and as no honest and fair man would accept on the other”

          1. Cannot be resolved by hindsight; need to look at the time and circumstances under which it was made

          2. For, as Telex acknowledged, Brobeck’s petition provided Telex with the leverage to secure a discharge of its counterclaim judgment, thereby saving it from possible bankruptcy in the event the supreme court denied its petition for certiorari

          3. **if the court found it unreasonable they could have thrown out the fee and awarded quantum merit based off of a fair hourly rate.

      3. Unethical Fees

        1. Cooperman Pg. 162: special non-refundable agreement clashes with public policy. Sure if you render some services and get terminated you should be entitled, and we also don’t want to remove your right to terminate, but you shouldn’t have to pay just for termination when no work has been rendered.

        2. In re Estate of Sylvan: unconscionability of the fee agreement can be determined before or after.

      4. Contingent fees: ADD THIS PORTION FOR POLICY

        1. NY Judiciary Law 474(a): explain your fees

        2. 1.5:

          1. Section c: Contingent fees and Conflicts of interest:

          2. Section d Prohibition on contingent fees in matrimonial and criminal cases:

        3. Should they be outlawed or further regulated?

          1. Can create perverse incentives

            1. Avoid doing work

          2. Good incentive: no overbilling

          3. Discourage settlement

          4. Gambling

    5. Conflicts of Interest:

      1. 1.7: CONFLICT OF INTERESTS: CURRENT CLIENTS

        1. Don't be a dick

        2. Don't be on both sides of a law suit

        3. Don't represent someone with contrary interests to you or another client

        4. Cured with informed consent

      1. 1.8: CURRENT CLIENTS: SPECIFIC CONFLICT OF INTEREST RULES

        1. White People Problems

        2. Don't use information they give you against their interest

        3. Can engage in settlement for both sides if you have informed consent

        4. Cannot demand sexual relations or employ coercion DON'T BE A RAPIST.

        5. You can fuck your client if you were fucking them before they became your client

      2. 1.18(c): PROSPECTIVE CLIENTS:

        1. Can't use information gained in a consultation

        2. Can't represent a client with interests adverse to prospective clients when substantially related and materially adverse.

        3. These restrictions apply to other lawyers in a firm that are associated with can knowingly take on.

      3. 1.9: FORMER CLIENT

        1. "substantially related"

        2. "materially adverse"

        3. Cured by informed consent

      4. 1.10: IMPUTATION OF CONFLICTS OF INTEREST

        1. Whole departments can be conflicted out

        2. The conflict lies with both the firm and the individual

        3. Can be cured with informed consent

      5. Fiandaca v. Cunningham Pg. 272: lead counsel represents plaintiffs in two conflicting actions. Defendant in one brings suit, reviewing the D.Courts lack of removal of counsel on motion. Apply abuse of discretion. You do not ask, would this result have happened. “would it not have been encumbered”.

        1. You must show the movant strategically sought disqualification for improper purposes. Timing alone is not enough to disqualify a disqualification motion.

        2. Result: no new trial even though P thinks its plain reversible error. This doesn’t taint all proceedings; we will instead look to the ill effects

          1. We just retrial on the issue of what’s the proper remedy since the improper counsel did influence that decision

        3. Take Aways: we have incentives to be careful about conflict rules because apart from discipline you can run the possibility that your liability will accrue. Chase thinks these lawyers were sloppy

      6. Analytica v. NPD research Pg. 310: two law firms appeal orders disqualifying them from representing analytics.

        1. Malec works for analytica. Retains Schwartz for them on certain matters. Then leaves starts his own company and retains shwarts for a suit that his old company wages against him

          1. A lawyer may not represent adversary of his former client if it means the lawyer COULD have obtained confidential information in first representation that would be relevant in the second

          2. Substantial relationship test has its issues, but it’s better than an intense factual inquiry to see if information really was obtained.

      7. Cromley v. Board of Education Pg. 331: Whistle blower - Cromley brings suit saying she has been denied advancement because she has exercised her right to free speech. The D.ct rules against her and denied her motion to disqualify defendant’s attorneys. She appeals and court affirms

        1. She claimed that they were retaliating against her because she complained to a state agency about sexual misconduct [protected speech]. In that case she had a lawyer who was now repping the school

        2. Three step analysis:

          1. Does a substantial relationship exist between the SUBJECT MATTER

          2. Whether the presumption of shared confidences with respect to the prior representation has been rebutted (past)

          3. Has the presumption of shared confidence been rebutted with respect to the present representation (present)



      8. Simpson Pg. 289: if attorney is on both sides in a transaction no necessarily malpractice like in litigation because there are common interest. But this dealer was seller financed which makes it suspicious, he also clearly did not do enough.

    1. Whistle Blowing:

      1. The rules require reporting if conduct raises a substantial question as to a lawyer’s honesty trustworthiness or fitness as a lawyer (Does this mean you have to squeal on yourself?)

        1. Subordinate lawyers enjoy a “following orders” defense if directed to do something arguably improper, so long as the supervisor’s conclusion is “reasonable”

      2. 1.6(b)(3): CONFIDENTIALITY OF INFORMATION

        1. A lawyer MAY use confidential information including when you're going to commit a crime and only as much as reasonably necessary.

        2. (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud

      3. 1.13(b)-(d): ORGANIZATION AS A CLIENT (see rule)

        1. Don't be a dick – if you know someone's going to do something contrary to the interests of the company the lawyer may proceed in the best interests of the company.

        2. 1.13 (c) if the person with authority refuses to act then the lawyer may only reveal confidential information as permitted by 1.6 or resign as per 1.16.

          1. If the lawyer heard false testimony then the lawyer can take remedial measures because under 3.3 false testimony is always a SHALL act.

      4. 8.3(a): REPORTING PROFESSIONAL MISCONDUCT

        1. As a lawyer you SHALL tattle on other unethical lawyers

      5. Wielder v. Skala BB: guy says he was wrongfully discharged by his firm by insisting that they report professional misconduct of another attorney. He hires his own firm to buy a commercial condominium. They assign an attorney who does bad stuff professionally. The partners say don’t report, well reimburse you. He withdrew his complaint eventually because partners threaten to fire him. Kept him on because he was on the firm’s most important case. And once the case was finished they fired plaintiff.

  1. D. arg: Not surprisingly, defendants' position here with respect to plaintiff's breach of contract cause of action is simple and direct, i.e., that: (1) as in Murphy and Sabetay, plaintiff has shown no factual basis for an express limitation on the right to terminate of the type upheld in Weiner; and (2) Murphy and Sabetay rule out any basis for contractual relief under an obligation implied-in-law. We agree that plaintiff's complaint does not contain allegations that could come within the Weiner exception for express contractual limitations

  2. Moreover, as plaintiff points out, failure to comply with the reporting requirement may result in suspension or disbarment (see, e.g., Matter of Dowd, 160 A.D.2d 78, 559 N.Y.S.2d 365). Thus, by insisting that plaintiff disregard DR 1–103(A) defendants were not only making it impossible for plaintiff to fulfill his professional obligations but placing him in the position of having to choose *637 between continued employment and his own potential suspension and disbarment. We agree with plaintiff that these unique characteristics of the legal profession in respect to this core Disciplinary Rule make the relationship of an associate to a law firm employer intrinsically different from that of the financial managers to the corporate employers in Murphy and Sabetay. The critical question is whether this distinction calls for a different rule regarding the implied obligation of good faith and fair dealing from that applied in Murphy and Sabetay. We believe that it does in this case, but we, by no means, suggest that each provision of the Code of Professional Responsibility should be deemed incorporated as an implied-in-law term in every contractual relationship between or among lawyers.

  3. From the foregoing, it is evident that both Murphy and Sabetay are markedly different. The defendants in those cases were large manufacturing concerns—not law firms engaged with their employee in a common professional enterprise, as here

  4. NY has taken the position that even though employment in NY is employment at will law firms may not properly dismiss someone for whistleblowing because it's a code of professional conduct.



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