The Basic Elements of Law Practice

Powerpoint Chapter 2

2. The Basic Elements of Law PracticeA. Unauthorized PracticeB. Creating the Lawyer-Client RelationshipC. Ending the Lawyer-Client RelationD. CompetenceE. Allocating Decision-Making Between

Lawyer and Client

Chapter 2 Overview

Is the law prohibiting unauthorized practice found in the Rules?Yes and No.Rule 5.5 (governs unauthorized practice by

lawyers) (Comment “[2] The definition of the practice of law is established by law and varies from one jurisdiction to another.” )

Criminal and Civil Liability

Basic Principles of Unauthorized Practice

How can lawyers engage in unauthorized practice of law?Rule 5.5

What case provides the general rule for permissible nonlawyer practice?Brumbaugh

What Rule explains the lawyer’s obligations in supervising nonlawyers?Rule 5.3

What Rule governs sharing fees with nonlawyers?Rule 5.4

What Rules govern ancillary businesses?Rule 5.7 & Rule 1.8

What Rule determines whether lawyer not admitted to practice in a particular jurisdiction is engaged in unauthorized practice?Rule 5.5

What Rule provides choice of law rules for multijurisdictional practice?Rule 8.5

UPL and Nonlawyer Practice

A.  Protecting the legal profession from competition.  

B. Protecting consumers from incompetent and unethical practitioners. 

C. Preventing innovation in the delivery of legal services.  

D. None of the above.

Question 2-1 What is the bar's rationale for restrictions on non-lawyer practice?

Rule 5.5 Comment 2 (“limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons”)

Brumbaugh (“not done to aid or protect the members of the legal profession,” “done to protect the public from being advised and represented in legal matters by unqualified persons over whom the judicial department can exercise little, if any, control in the matter of infractions of the code of conduct which, in the public interest, lawyers are bound to observe”)

What doctrine we discussed in Chapter 1 explains this answer? Why?

A.  Sell legal forms.  B. Type in the blanks in legal forms for a

customer.C. Publish books advising people on how to

complete legal forms. D. Advise customers in person on how to

complete legal forms.E.  No exceptions - a non-lawyer may perform

all of the above.Brumbaugh (facts and holding)Dacey

2-2 As a general rule, in most jurisdictions a non-lawyer may do the all of following except:

Nolo.comNolo.com videoNolo Estate Planning Video

Legal Software

A. According to the traditional rule, no because software is the same as a book.  

B. According to the traditional rule, no because the service is not personalized.  

C. According to the traditional rule, yes because the service is personalized.

D. According to the traditional rule, yes, but the rule has changed to permit legal software. Parsons Technology

2-3 Legal Software Inc. makes available to consumers a program that helps them fill out legal forms. Based on the answers, the program helps the consumer complete the appropriate form, suggesting specific provisions tailored to the consumer's needs and preferences. Has Legal Software Inc. engaged in unauthorized practice of law?

Legal Zoom Litigation

UPL: Lawyers Working with Nonlawyers

A. Yes, because an employee of the firm may be compensated based on the profits of the firm.

B. No, because the administrator's bonus is computed on the same basis as those of the lawyers in the firm.

C. No, because the administrator's compensation is derived from the legal needs of the firm's lawyers.

D. No, because the administrator's compensation is derived from the legal needs of the firm's lawyers.

2-4 An attorney is a senior partner at a law firm in which there are 50 lawyers. The firm pays each of its lawyers a fixed annual salary. In addition, at year's end, each lawyer receives a bonus from the profits of the firm in the proportion that the annual salary of each bears to the total of the fixed annual salaries of all lawyers. The attorney plans to introduce a new management plan under which the firm's non-lawyer office administrator would have general charge of all business matters but would not participate in any decisions involving legal judgment. The administrator would be paid a fixed annual salary and would be included as a participant in the firm's bonus plan on the same basis as the lawyers in the firm. This would usually yield a bonus of approximately one-fourth to one-third of the administrator's total annual compensation. The amount paid to the administrator will not exceed the compensation commonly paid to law office administrators within the local legal community. Is it proper for the attorney to institute such a plan?

Rule 5.5 Comment (“This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.)

Rule 5.3: With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

The Lawyer Must be the Boss

Rule 5.4: (a) A lawyer or law firm shall not share legal fees with a nonlawyer

(with exceptions) (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (d) A lawyer shall not practice with or in the form of a professional

corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary

representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;

(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;

(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and

(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.

Exceptions to Rule 5.4(a)

A.  Yes, because by sending out the newsletter the attorney is giving legal advice to persons who are not his clients. 

B. Yes, because the attorney is assisting the bank in the unauthorized practice of law. 

C. No, because no charge is made for the attorney's advice. 

D. No, because the attorney is a member of the bar.

2-5An attorney is a member of the bar and a salaried employee of a bank's trust department. As part of his duties, he prepares a monthly newsletter concerning wills, trusts, estates, and taxes that the bank sends to all of its customers. The newsletter contains a recommendation to the customer to review his or her will in light of the information contained and, if the customer has any questions to bring the will to the bank, where the attorney will review the customer's will and answer the customer's legal questions. The bank provides that attorney's services to its customers for no charge. Is the attorney subject to discipline for the foregoing?

1. Can a Corporation practice law?Review UPL: Who can practice law?

2. Does a lawyer face discipline for helping a Corporation practice law?Rule 5.5 (a) A lawyer shall not practice law in a

jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

A. Yes, because some of the activities of the partnership consisted of the practice of law.  

B. Yes, because lawyers may not form partnerships with nonlawyers.

C.  No, because the accountant performed only work that she was authorized to perform as a certified public accountant.  

D. No, because the attorney made reasonable efforts to ensure that the accountant did not interfere with the attorney's compliance with his professional obligations as a lawyer.

2-6 A business attorney entered into a partnership with a certified public accountant. The partnership provided legal and other assistance to clients in connection with business and tax planning, tax filings, and other personal and corporate business matters. The accountant performed only work that she was authorized to perform as a certified public accountant. The attorney made reasonable efforts to ensure that the accountant did not interfere with the attorney's compliance with his professional obligations as a lawyer. Is the attorney subject to discipline?

Rule 5.4 (b) A lawyer shall not form a partnership with a nonlawyer if any

of the activities of the partnership consist of the practice of law. (d) A lawyer shall not practice with or in the form of a professional

corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Only if the lawyer is the boss. See Rule 5.4.Compare U.K.: Alternative Business

Structures

Do the Rules permit multidisciplinary practice?

Why are public interest legal organizations permitted to be corporations and to include nonlawyers on their boards?

Rule 5.4 (d) d) A lawyer shall not practice with or in the form of a professional corporation or

association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the

estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Rule 5.4 (a) (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (4) a lawyer may share court-awarded legal fees with a nonprofit organization that

employed, retained or recommended employment of the lawyer in the matter.

Why could in-house counsel potentially be a problem under Rule 5.4?The Rationale for Rule 5.4Rule 5.4 (a) and (c)

Why are in-house counsel permitted?

A. Joan is not subject to discipline if the clients give informed consent in writing.  

B. Joan is not subject to discipline because she informs clients of the opportunity to consult independent counsel. 

C. Joan is not subject to discipline because the rates and policies of Small County Title are comparable to those of its competitors.  

D. Joan is subject to discipline unless she complies with all three requirements listed above.

2-7 Joan Lawyer has a leading real estate practice in Small County. She is also part owner of Small County Title. She suggests to her clients who purchase real estate that they consider purchasing their title insurance from Small County Title. Joan discloses that she owns the company and recommends that her clients consider the rates and policies of competing title insurance companies. She explains that the services provided by Small County Title are not legal services and that the legal ethics rules do not apply to the purchase of title insurance. Joan suggests that clients feel free to consult another lawyer as to whether they should purchase title insurance from a company their real estate lawyer owns. The rates and policies that Small County Title offers are comparable to those of its competitors. Which of the following is true:

What’s the first question in analyzing conduct regarding ancillary businesses? Are the services “law-related”? Rule 5.7 (a): A lawyer shall be subject to the Rules of

Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b)”

How do you answer that question? Rule 5.7 (b): (b) The term "law-related services" denotes

services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

Comment [9] A broad range of economic and other interests of clients may be served by lawyers' engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical or environmental consulting.

Is the lawyer “subject to the Rules of Professional Conduct with respect to the provision of law-related services?” Why does this matter?

How do we answer this question?Rule 5.7 (a) A lawyer shall be subject to the Rules of Professional

Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or

(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

If the ancillary services are law related, what is the next question?

Comment [5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a separate law-related service entity controlled by the lawyer, individually or with others, the lawyer must comply with Rule 1.8(a).

Rule 1.8(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

If the lawyer complies with the letter of Rule 5.7, what further question must be answered?

Comment [7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding. For instance, a sophisticated user of law-related services, such as a publicly held corporation, may require a lesser explanation than someone unaccustomed to making distinctions between legal services and law-related services, such as an individual seeking tax advice from a lawyer-accountant or investigative services in connection with a lawsuit.

Who has the burden of persuasion under Rule 5.7?

Unauthorized Practice by Lawyers

A. will fail because John is admitted to practice in New York.  

B. will fail because this was not a litigation matter.  

C. will fail because the legal services market is national and not restricted to a particular state.  

D. will succeed because John is not admitted to practice in California.

2-8Giant Manufacturer wants to buy widgets from Small Producer. Both Giant and Small are headquartered in California. Small's outside counsel, John Lawyer, admitted to practice in New York, travels to California from his New York office to negotiate the deal on Small's behalf. After extensive negotiations, Giant agrees to pay Small $10 million for the widgets. John bills Small $500 thousand for legal fees. Small believes the fee is far too high and refuses to pay. It retains a California lawyer and decides to argue that it does not have to pay anything to John Lawyer because he was engaged in unauthorized practice of law. Small's argument:

BirbrowerLater statutory amendment

arbitration

Rule 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:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(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.

Result under Rules?

YesNo

2-9 Joan Jones is an associate at Franklin & Ignatius. She is admitted to the New York Bar. The firm sends her to the State of Sirius to appear in court in a case where the firm has been admitted pro hac vice. Has she committed UPL?

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other

systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(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:

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; What does pro hac vice mean?

The Free Dictionary: Latin for "this time only," the phrase refers to the application of an out-of-state

lawyer to appear in court for a particular trial, even though he/she is not licensed to practice in the state where the trial is being held. The application is usually granted, but sometimes the court requires association with a local attorney.

Rule 5.5

YesNoRule 5.5 (c)(2): [the legal services provided

on a temporary basis] are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

2.10 Did Joan Jones violate UPL when she entered Sirius to investigate and prepare the case before the firm was admitted pro hac vice?

YesNoRule 5.5 (c)(3): [the legal services provided on a

temporary basis] are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission;

2-11 Would she have violated UPL if the firm had brought an arbitration on behalf of its client and not a court case?

YesNoRule 5.5 (c)(1) [the legal services] are

undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

What term in Rule 5.5 (c) makes her conduct a violation? “on a temporary basis”

2-12 Does Joan violate UPL if she transfers full-time to F&I's Sirius office and works under the supervision of a Sirius admitted attorney?

(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.

What other temporary legal services may be provided under Rule 5.5?

YesNoRule 5.5 (d): A lawyer admitted in another United

States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that :

(1) are provided to the lawyer’s employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; . . . . or

(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.

2-13 Does Joan commit UPL if she leaves F&I to become in-house counsel at Monolith, Inc., located in Sirius?

Rule 5.5 (d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that :

(1) are provided to the lawyer’s employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.

(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.

Does Rule 5.5 apply to foreign lawyers?

A. If the predominant effect is in NJ, all face discipline absent contrary reasonable belief.  

B. Only Jane faces discipline because she is a NJ lawyer. 

C. Only Jim faces discipline because he is litigating the matter in NJ. 

D. None face discipline because NY does not require disclosure.

2-14 Joan rejoins F&I as a partner in its New York office. As a corporate partner, she is in charge of representing ABC, Inc., based in New Jersey, in its takeover of DEF, Inc., based in New York. Her team includes Jim, a NY lawyer coordinating the NJ litigation, and Jane, a corporate associate admitted in NY and NJ. They discover ABC has made a fraudulent statement relevant to the litigation. NJ requires disclosure. NY does not. The F&I lawyers do not disclose. Which of the following is true?

Rule 8.5 (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

When you provide legal services outside the jurisdiction you are admitted, to what disciplinary authorities are you subject?

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. [Safe Harbor:] A lawyer shall not be subject to discipline if the

lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

The Rules of which jurisdiction govern your conduct?

What is the general rule for determining whether nonlawyer practice is permissible? Nonlawyers can help people fill in forms but cannot offer advice.

The software exception? Software is an exception but is permitted.

Common-sense rule for determining when lawyers can work with nonlawyers? It’s acceptable so long as lawyers are the bosses of the nonlawyers and

do not share fees. Exceptions to Rule 5.4?

lawyer’s estate (temporary fees, ownership interest)/purchase of practice of deceased, disabled, disappeared lawwyer

compensation or retirement plan court-awarded fees with nonprofit organization not-for profit organizations; e.g., public interest groups

.

UPL Review

What is an ancillary business?Rule 5.7 (b) (“services that might reasonably be

performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice”) Comment 9 (“include . . . Title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting”)

When can a lawyer engage in ancillary business?Always. Rule 5.7 only governs when to apply the

Rules to the activity.

UPL Review -20

Explain Rule 5.5 in one sentence. Lawyers can work in jurisdictions where they are not admitted so

long as their work is temporary or they are working in-house for an organization or the government.

Where does pro hac vice fit in? Falls within temporary exemption but creates exception to

permanent exception for in-house.Explain Rule 8.5 in three sentences

A lawyer is simultaneously subject to the disciplinary authority of the jurisdiction where admitted and where she offers legal services. The governing rules are those of tribunal where matter is pending or jurisdiction where conduct occurred unless predominant effect of conduct is different jurisdiction, in which case that jurisdiction’s rules govern. Safe harbor: no discipline if lawyer “conforms to the rules of jurisdiction” where “lawyer reasonably believes . . . predominant effect . . . will occur.”

UPL Review -3

http://www.youtube.com/watch?v=ZWI7pjfSnd4

Creating The Lawyer-Client Relationship

Where do we find the general rule for determining whether a lawyer-client relationship has been created?Restatement §14

What Rule says whether a lawyer can seek to decline a court appointment?Rule 6.2

What Rule defines the client of a lawyer for an organization?Rule 1.13(a)

What case discusses the application of civil rights laws to the creation of a lawyer-client relationship?Nathanson

Creating Lawyer-Client RelationshipIntro

 A. You have committed Unauthorized Practice of Law.  

B. If you were a lawyer, you would have created a lawyer-client relationship. 

C. Both A and B are correct. D. Neither A nor B is correct.

2-15Your friend George finds you at a party. He explains that he is having a problem with his landlord and asks your advice. You tell him what you learned about his problem in property class and explain it to him. Which of the following is correct?

What is the test for UPL? Nonlawyer cannot give legal advice. Can only serve as a scrivener.

What is the test for whether a lawyer-client relationship has been created? Restatement §14

“a person manifests . . . intent that the lawyer provide legal services for the person”

AND

EITHER “the lawyer manifests . . . consent”

OR “the lawyer fails to manifest lack of consent [where] the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.”

Common law student problem

 A. Yes, because the senator used her public position to attempt to influence the agency on behalf of the bank.

B.  Yes, because the agency granted the bank's application in part due to the senator's efforts.  

C. No, because the senator's letter to the agency's chair did not express an opinion about the law.  

C. No, because the senator acted on behalf of the bank as a constituent and not as a client.

2-16An attorney closed her law practice when she became a state senator. A bank, one of the senator's former private clients, asked her as its senator to try to persuade a state agency to grant the bank a license to open a new branch bank. While the bank's request was pending before the agency, the senator wrote a letter on her legislative letterhead to the agency's chair, asserting that the branch would satisfy a local business need and urging that the bank's application be granted. The senator neither sought nor received any compensation from the bank for her efforts. Eventually the agency granted the bank's application, in part because of the senator's efforts. Is the senator subject to discipline?

What is the test for whether a lawyer-client relationship has been created?Restatement §14

How do you apply that test to the facts of this problem?

“a person manifests . . . intent that the lawyer provide legal services for the person”

 A. Yes because Lincoln & Fordham has answered Center's questions.  

B. Yes because Lincoln & Fordham represented Center in its transactional work. 

C. No because Lincoln & Fordham made clear it was not representing Center. 

D. No because Center has other counsel in the matter.

2-17Lincoln & Fordham has represented Center Manufacturing in its transactional work. The SEC begins an investigation of Center Manufacturing. Lincoln & Fordham explains to Center that it cannot represent it in the SEC investigation. Center obtains other counsel. Nonetheless, from time to time, Center asks Lincoln & Fordham about issues that arise in the SEC matter and Lincoln & Fordham provides answers. Does Center have a lawyer-client relationship with Center for purposes of the SEC investigation?

What is the test? Restatement §14

“a person manifests . . . intent that the lawyer provide legal services for the person”

AND

EITHER “the lawyer manifests . . . consent”

OR “the lawyer fails to manifest lack of consent [where] the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.”

How do you apply it?

Morris v. Margulis & Grant, P.C.

 A. Yes. A lawyer who represents an organization also represents its constituents. 

B. Yes. A lawyer who represents an organization is presumed to represent its constituents absent an express agreement to the contrary.  

C. No. A lawyer who represents an organization does not thereby represent its constituents and never has a duty to them absent an express agreement to represent the constituent in addition to the organization.  

D. No. A lawyer who represents an organization does not thereby represent its constituents but may have a duty to them.

2-18The firm of Lincoln & Fordham represents the Computer & Software Association, an organization of businesses who manufacture computers or create software, in challenging proposed regulations regarding data privacy. Lincoln & Fordham has collected information on business practices from each of the businesses in the Association. Lincoln & Fordham agrees to represent one of those businesses, GoFind, in an antitrust suit against another, MacroTough. Was MacroTough a client of Lincoln & Fordham by virtue of its representation of the Computer & Software Business Association?

Does a lawyer for a corporation represent its constituents?Rule 1.13 (a) A lawyer employed or retained by an organization

represents the organization acting through its duly authorized constituents.

Comment 2: This does not mean, however, that constituents of an organizational client are the clients of the lawyer.

(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7.

How do you determine if a constituent has become a client?Restatement §14“a person manifests . . . intent that the lawyer

provide legal services for the person” AND EITHER “the lawyer manifests . . . consent” OR “the lawyer fails to manifest lack of consent

[where] the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.”

How do you apply that test to this problem?

In Westinghouse, why does the court find that Kirkland & Ellis has obligations to Gulf, Kerr-McGee and Getty? Lawyers can have a fiduciary obligation

without creating lawyer-client relationship.

A. The lawyer should not have sought to avoid the appointment.  

B. The lawyer was ethically permitted to seek to avoid the appointment and can refuse the representation. 

C. The lawyer was ethically permitted to seek to avoid the appointment but must continue the representation.  

D. The lawyer must represent the client, but does not have to follow the client's instructions.

2-19The court appoints a lawyer who believes that abortion is murder to represent a teenage girl seeking court permission to obtain an abortion without the consent of her parents. The lawyer explains that he believes that abortion is murder and asks the court to withdraw the appointment. The court refuses. Under the Rules, which of the following is true?

Does appointment create a lawyer-client relationship?Restatement §14(2) “tribunal with power to do so appoints

the lawyer to provide services”May a lawyer seek to avoid appointment?

Rule 6.2 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.

A.  Joan is liable for violating the laws against gender discrimination.  

B. Joan is subject to discipline for violating her ethical obligation to ensure that all clients have a right to representation. 

C. Joan is not liable because she has complied with all of her obligations under the ethics rules. 

D. Joan is not liable because her freedoms of speech and association allow her to represent only women.

2-20Joan Lawyer practices matrimonial law. She only represents women because she seeks to "redress the social and legal wrongs done to women." John Client asks her to represent him. She refuses on the ground that he is a man. John Client sues her for unlawful discrimination. What result?

NathansonDiscrimination laws apply to lawyers

National implication?

What is the general rule for determining whether a lawyer client relationship has been created? “when a person manifests . . . intent that the lawyer provide legal services

for the person” AND EITHER “the lawyer manifests . . . consent” OR “the lawyer fails to manifest lack of consent [where] the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.”

Who is the client of a lawyer for a organization?

Rule 1.13 (a) “the organization acting through its duly authorized constituents”

What complications can arise in representing an organization? Restatement §14 Rule 1.13 (g) “A lawyer representing an organization may also represent

any of its directors, officers, employees, members, shareholders or other constituents, subject the” conflicts rules. If consent required, appropriate official other than that individual or shareholders must decide whether to provide.

Review Creating Lawyer-Client Relationship

http://www.youtube.com/watch?v=itj9sKHTT8g

Terminating L-C Relationship

What Rule section requires termination of l-c relationship?Rule 1.16 (a)

What Rule section permits termination?Rule 1.16 (b)

What Rule section describes the court’s role?Rule 1.16 (c)

Introduction: Terminating L-C Relationship

Attorney Alpha, a sole practitioner, recently suffered a heart attack and was advised that she could not return to work for six months. Alpha delivered all of her clients' files to Attorney Beta, who is also a sole practitioner. Beta agreed to review each client's file promptly, take any action necessary to protect each client's interests, and treat the information in the files as confidential. Alpha then wrote her clients, advising each client that the client's file had been delivered to Beta for review and for any action necessary to protect the client's interest, and that the client was fee to select another lawyer. Alpha knows that Beta is a competent attorney. Beta did not accept the file of any person whose interests were, or could be, adverse to the interests of any of Beta's own clients. Was it proper for Alpha to deliver the files to Beta for review?

A. Yes, because Alpha knows that Beta is competent to protect the clients' interests.B. Yes, because Beta agreed to treat the information in the files as confidential.C. Yes, because given her medical condition, Alpha's delivery of the files was necessary to protect the client's interests.

D. No, because Alpha did not obtain the prior consent of each client whose file was delivered to Beta.

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What would the text of the Rules suggest?Rule 1.16 (a) (2) must withdraw (“lawyer’s physical or

mental condition materially impairs the lawyer’s ability to represent the client”

Rule 1.6 must keep confidential client information.Consider this provision that is not in the text of the Rules:

Rule 1.3 DiligenceComment [5] To prevent neglect of client matters in the

event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action.

Attorney is employed in the legal department of Electco, a public utility company, and represents that company in litigation. Electco has been sued by a consumer group that alleges Electco is guilty of various acts in violation of its charter. Through its general counsel, Electco has instructed Attorney not to negotiate a settlement but to go to trial under any circumstances since a precedent needs to be established. Attorney believes the case should be settled if possible. Must Attorney withdraw as counsel in the case?

Yes, if Electco is controlling Attorney's judgment in settling the case.Yes, because a lawyer should endeavor to avoid litigation.No, if Electco's defense can be supported by a good faith argument.No, because as an employee, Attorney is bound by the instructions of the general counsel.

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What are the Rule provisions for mandatory termination of the representation? 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:

(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.

How does they apply to this problem?What if Electco’s claims were frivolous?

FRCP Rule 11 Rule 3.1

An Attorney represents a Client in commercial litigation that is scheduled to go to trial in two months. Over the past several weeks, the Client has disagreed with almost every tactical decision that the attorney has made. Frustrated, the Attorney finally said to the Client that the Attorney didn't like the way the Client was handling the lawsuit and perhaps the Client should get another lawyer. The Client was upset at the suggestion and accused the Attorney of trying to get out of the case. Reasonably believing that he could no longer work effectively with the Client, the Attorney sought the client's permission to withdraw from the representation, and the Client reluctantly agreed. After giving the Client sufficient notice to obtain replacement counsel, the attorney requested the Court's permission to withdraw from the litigation, but the Court denied the request. May the attorney withdraw from the representation?

Yes, because the Client agreed, and the Attorney gave the client sufficient notice to obtain replacement counsel.

Yes, because the Client had made it unreasonably difficult for the Attorney to carry out the representation effectively.

No, because the Court denied the Attorney's request to withdraw. No, because the Attorney's withdrawal would cause material prejudice to the

client, and the Client's agreement was not voluntary.

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What Rule governs the answer to this problem? Rule 1.16 (b) – may (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; (2) the client persists in a course of action involving the

lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

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

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

(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;

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

(7) other good cause for withdrawal exists.

Attorney experience several instances when clients failed to pay their fees in a timely manner, but it was too late in the representation to withdraw without prejudicing the clients. To avoid a recurrence of this situation, Attorney had drafted a stipulation of consent to withdraw if fees are not paid according to the fee agreement. She proposes to have all clients sign the stipulation at the outset of the representation. Is it proper for Attorney to use the stipulation to withdraw from representation whenever a client fails to pay fees?

A. Yes, because a lawyer may withdraw when the financial burden of continuing the representation would be substantially greater than the parties anticipated at the time of the agreement.  

B. Yes, because the clients consented to the withdrawal in the stipulation.  C. No, because a client's failure to pay fees when due may be insufficient

in itself to justify withdrawal.  D. No, unless clients are provided an opportunity to seek independent

legal advice before signing the stipulation.

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What Rule provisions govern the answer to this problem? Rule 1.16 (b) and (c)

Rule 1.16 (b) – may (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; (2) the client persists in a course of action involving the lawyer's services

that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers

repugnant or with which the lawyer has a fundamental disagreement; (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;

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

(7) other good cause for withdrawal exists.

Rule 1.16 (b)

(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.

Rule 1.16 (c)

(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.

Comment [9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Rule 1.15.

And, btw, Rule 1.16 (d)

Rule 1.16 implements the dominant conception that the lawyer should serve as a "neutral partisan" for her client.A. True

B. False

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Rule 1.16 (b) – may (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; (2) the client persists in a course of action involving the

lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

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

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

(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;

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

(7) other good cause for withdrawal exists.

What are the three situations where a lawyer must withdraw?Rule 1.16 (a) Violation of rules or lawLawyer disabilityLawyer discharge

When can a lawyer withdraw for no reason?“without material adverse effects on the interests of

the client”Why is a good reason under Rule 1.16 never

sufficient when a matter is in court?Rule 1.16 (c): Need court permission.

Review: Terminating Representation

Complete the following: to explain the difference between Rule 1.16 a and b with regard to a client’s criminal or fraudulent action: the difference between must and may is the difference between _____ and _______

To withdraw, must a lawyer know that “a client persists in a [criminal or fraudulent] course of action involving the lawyer’s services?

Must a lawyer withdraw where “the client has used the lawyer’s services to perpetrate a crime or fraud.”

Review Terminating Representation -2

On what grounds can a lawyer withdraw if she find herself in disagreement with her client?Rule 1.16 (4) “repugnant” “fundamental

disagreement”(6) “rendered unreasonably difficult (7) “other good cause”

When may a lawyer withdraw when a client does not pay?May. Rule 1.16 (5) client fails substantial obligation

and receives reasonable warning, (6) “unreasonable financial burden”

What is the most obscure provision governing termination?Rule 1.3, Comment 5

Review Terminating Representation -3