PR Rules Flashcards
MRPC 8.1: Bar Admissions & Disciplinary Matters:
An applicant for admission to the bar, or a lawyer in connection w/a bar admission application or in connection w/ a disciplinary matter shall not:
(a) knowingly make a false statement of a material fact, or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6
(2) This rule is subject to the provisions of the 5th Amendment and corresponding provisions of State Constitutions.
* A person relying on such provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this rule.
TDRPC 8.01: Bar Admission, Reinstatement, and Disciplinary Matters
An applicant for admission to the bar, a petitioner for reinstatement of the bar, or a lawyer in connection w/a bar admission application, a petition for reinstatement, or a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information rom an admission, reinstatement, or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.05.
Texas Gov’t Code 82.038(d):
The board may not deny a person who successfully takes the bar examination a probationary license to practice law solely because the person
(1) suffers from a chemical dependency; or
(2) has been convicted or is on community supervision for a first offense of operating a motor vechicle while intoxicated under .. or intoxication assault committed while operating a motor vehicle.
Bar Admission Danger Zones:
Felonies & Crimes of Moral Turpitude
Example: Theft, fraud, etc.
False statements in a bar application
Substance abuse- In Texas this cannot result in the denial of provisional license
Misconduct during law school
MRPC 8.4: Misconduct:
It is professional misconduct for a lawyer to:
a. Violate or attempt to violate the MRPC, knowingly assist or induce another to do so, or do so through the acts of another
b. Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
c. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
d. Engage in conduct that is prejudicial to the administration of justice;
e. State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the MRPC or other law or;
f. Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct of other law.
Most common violations of attorney misconduct:
i. Co-Mingling Funds
ii. Lack of communication with clients
iii. Not meeting deadlines
Example: In Texas, 1,628 grievances filed and classified (maj. based on criminal law, family law, and personal injury)
•Neglect, failure to communicate, and complaints about the termination or withdrawal of ineffective counsel
•Complaints likely revolve around ineffective counsel are personal injury claims where sole practitioners are involved (they likely represent clients in very complex cases and don’t seek the knowledge they need), or family law (where no one is happy with the result)
Misconduct that can also lead to discipline:
Misconduct in the representation of clients and
Misconduct unrelated to the practice of law that has a bearing on the lawyer’s fitness to practice.
MRPC 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers:
(a) A partner in a law firm, (…), shall make reasonable efforts to ensure that a firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the MRPC.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the MRPC
(c) A lawyer shall be responsible for another lawyer’s violation of MPRC if:
(1) The lawyer orders or, w/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 other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated by fails to take remedial action
MRPC 5.2: Responsibilities of a Subordinate Lawyer:
(a) A lawyer is bound by MRPC notwithstanding that the lawyer acted at the direction of another person
(b) A sub. Lawyer does not violate the MRPC if the lawyer acts in accordance w/ a supervisory lawyer’s reasonable resolution of an arguable question of professional duty
MRPC 8.3: Maintaining the Integrity of the Profession – Reporting Professional Conduct:
(a) A lawyer who knows that another lawyer has committed a violation of the MRPC that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority
• NOTE: The term substantial means the weight of the violation not the amount of proof.
• Case law has determined the reporting must be prompt.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as the judge’s fitness for office shall inform the appropriate authority
(c) This rule does not require the disclosure of info that is confidential or gained by a lawyer or judge while practicing in the LAP.
TDRPC 5.01: Responsibilities of a Partner Supervisory Lawyer:
(a) The lawyer is a partner or supervising lawyer and orders, encourages, or knowingly permits the conduct involved, or
(b) The lawyer is a partner … and with knowledge of the other lawyer’s violation of these rules knowingly fails to take reasonable remedial action to avoid or mitigate the consequence of the other lawyer’s violation
NOTE: Unlike the MRPC the TDRPC does not require the managing partner to ensure firm wide compliance of rules, it only states that the partner violates the rule if they have knowledge of the violation and knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of the other lawyer to violate these rules.
- Look out for patterns where the partner has no CLUE - under MRPC he’s liable if the firm did not implement reasonable efforts to ensure compliance = Under TDRPC not the case
TDRPC 5.02: Responsibilities of Supervised Lawyer:
A lawyer is bound by these rules notwithstanding that the lawyer acted under the supervision of another person, except that a supervised lawyer does not violate these rules if that lawyer acts in accordance w/a supervisory lawyer’s reasonable resolution of an arguable question of professional conduct.
TDRPC 5.03: Responsibilities Re: Non Lawyer Assistances
(a) Lawyer having direct supervision should make reasonable efforts to ensure that the persons conduct is compatible w/the professional obligations of the lawyer; and
(b) A lawyer should be sub. to discipline for the conduct of such person if engaged by a lawyer
(1) The lawyer orders, encourages, or permits the conduct involved, or
(2) The lawyer is:
(i) A partner …, and has direct supervision
(ii) W/knowledge of such misconduct the lawyer fails to take reasonable remedial action to avoid or to mitigate the consequences of that person’s misconduct.
TDRPC 8.03: Reporting Professionals:
(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.
(b) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority.
(c) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or by mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyers report to the approved peer assistance program shall disclose any disciplinary violations that the reporting lawyer would otherwise have to disclose to the authorities referred to in paragraphs (a) and (b).
(d) This rule does not require disclosure of knowledge or information otherwise protected as confidential information.
MUST report to the state bar or TLAP (TLAP has a duty not to disclose unless - someone is in danger, etc.)
Differences with MRPC 5.1 and TDRPC 5.01:
- As opposed to 5.1(a), under 5.01 an unknowing partner has no duty to make a reasonable effort to assure firm wide compliance.
- As opposed to 5.1(b), an unknowing supervisor has no duty under TDRPC 5.01 to make reasonable efforts to ensure subordinate compliance.
- A opposed to 5.1©(1) (requiring order or ratification of unethical behavior), TDRPC leaves supervisors on the hook for “encouragement” (i.e. “wink, wink, nod, nod”).
- NOTE: 5.2 and 5.02 are the same.
The Weider Rule:
At will law firm associates have a valid claim against the firm if the firm fires an associate for insisting the firm comply with the MRPC.
*Texas does not have a Weider Rule
Elements of Legal Malpractice
Owed a duty to the P
i. (i.e. Attorney/Client relationship)
Breach: Failed to exercise the “competence and diligence normally exercised by lawyers in similar circumstances” and
Causation: The breach of duty caused harm to the P
i. This is why this claim is difficult to win – the P must show that “but for” the lawyers conduct, the harm would not have occurred ii. P must win a case within a case
*“But for the attorney’s negligence, your claim would have been successful”
Types of mistakes that lead to malpractice:
a. Missing SOL w/o filing on behalf of a client
b. Representing two clients w/ conflicts of interest
c. Sue your former client for an unpaid fee
d. Accept any client and matter that comes along
e. “Do business” with your client
f. Practice outside your area of expertise
g. Go overboard in opening up branch offices and making lateral hires
h. Leave partner peer review to other firms
i. Ignore a potential claim and represent yourself in a professional liability suit
j. Settle matter w/o written authorization from your client
k. Fail to communicate w/your client
l. NOTE: Keep client records for 5 to 7 years to help protect against malpractice claims
Fiduciary Duties Owed by a Lawyer to a Client:
a. Safeguarding the client’s confidences and property
b. Avoiding impermissible conflicting interests
c. Adequately informing the client
d. Following client’s instructions
e. Not employing adversely to the client powers arising from the lawyer/client relationship
Breach of Fiduciary Duty Elements:
P must prove that but for the lawyer’s misconduct, the P would have obtained a favorable judgment or settlement in the case in which the lawyer originally represented the client or that P suffered some other compensable harm
Common Criminal Issues:
a. Fraud (Clients or third parties)
b. Theft of client property
c. White-collar crime
MPRC 1.6(a): Confidentiality of Information:
A lawyer shall not reveal information to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) (.. exceptions)
Comment 4: A lawyer’s use of a hypo to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved
What is confidential? (Summary)
a. All information relating the matter on which the lawyer is representing the client (except information that is “generally known”)
b. Personal information relating to the client that the client would not want to disclosed
c. Information learned from the client, and information learned from interviews, documents, photos, observations, or other sources
d. Information relating to the representation acquired before the representation begins (prelim consults) and after representation terminates
e. Notes or memos the lawyer creates relating to the matter
Basic 1.6(a) Guidelines:
a. A lawyer shall not reveal anything related to a client matter from any source (CIA)
i. A lawyer may reveal (implicit exceptions):
1. Information so long as listener could not possibly ID client (resolve close cases in favor of non-disclosure)
2. Generally known information (Example: Police report)
3. Be particularly careful with adverse information
a. Especially when you are the only person who knows, even if you think it cannot be connected back to you
Exceptions to the Duty to Protect Confidences:
Client can consent and waive the rule, but only to the extent that the lawyer has given the client full information about the risks
- Revelation of past criminal conduct
a. If the crime is over, the lawyer cannot prevent harm by revealing it
b. Society relies on the fair administration of justice and clients having unobstructed access to counsel
c. Lawyer should protect most information about past criminal activity by clients
MRPC 1.6: Explicit Exceptions:
(a) … Unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)
(b) Disclosure authorized by 1.6(b)
(1) To prevent reasonably certain death or substantial bodily harm;
• Big distinction between past crimes and future crimes
(6) To comply w/other law or a court order:
• Failure to render aide
• Prosecutor argued – Violation of a health law to report the location of dead bodies w/in a certain time frame
** BIG POINTS IN CLASS –> See the additional exceptions (2-5)
Protection of Information if there is a reasonable prospect of harm to the client’s interest:
- Confidential Client Information: Information relating to the representation of a client, other than information that is generally known.
- Adverse Effects: Include frustrations of the client’s objectives in the representation; material misfortune, disadvantage, or other prejudice to the client; financial or physical harm to the client, or personal embarrassment to the client
- Reasonable Prospect of Harm: Whether a lawyer of reasonable caution, considering only the client’s objectives, would regard use or disclosure in the circumstances as creating an unreasonable risk of adverse effect either to those objectives or to other interests of the client.
TDRPC 1.05(c)(7):
A lawyer may reveal confidential information (7) when the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
• Key: Disclosure is not mandatory, it is permissive
• You are not subject o discipline because reporting future crimes not involving SBI or death is discretionary.
Fraud:
Deliberate deception; conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
a. Not limited to criminal conduct b. Intended to guide a lawyer’s conduct as an officer of the court as a prophylactic measure to protect against client perjury contaminating the judicial process
A lawyer can be guilty of fraudulent behavior if:
a. Did not know but prepared a fraudulent document
b. Did not verify client information
c. Did not exercise prevailing care to discern client fraud
i. Liable for negligence to those injured by the fraudulent act
d. Could be subject to discipline or criminal charges for advising a client on how to evade detection or prosecution
e. Omissions or half-truths can also constitute fraud
Critical Distinctions Between 1.6 vs. 1.05:
Scope of confidentiality: MRPC 1.6 and TDRPC 1.05(a) make approximately the same information confidential – all information related to the representation
Exceptions for potential future client acts resulting in bodily harm or death:
o MRPC 1.6(b)(1) allows disclosure of confidential information to prevent SBI or death, whether or not client commits crime or fraud
o TDRPC 1.05(e) requires disclosure of confidential information where it is reasonably certain that doing so will prevent client crime or fraud
MRPC 1.2(d): Scope of Representation and Allocation Between Client & Lawyer:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer MAY discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
*** NOTE SAME AS 1.02(c)
MRPC 1.6(b): Confidentiality of Information:
A lawyer may reveal information relating to the representation of a client to the extent the lawyer believes reasonably necessary:
(1) to prevent reasonably certain death or SBH
(Comment 6: Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails..)
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of when the client has used or is using the lawyers services
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance w/these rules
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition of ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client
a. New exception to check for conflicts of interest
b. When you move law firms you carry your conflicts w/you. If you represented a client in the old firm, who is adverse to a client in the new firm, you could have a conflict of interest – to determine whether you have the conflicts, you have to tell them what the subject of the matter as
c. Might see conflicts of interest problem & someone is trying to resolve that in a new firm – are they sub. to discipline because they revealed confidential info while trying to make this determination? No.
MRPC 1.6(c): Confidentiality - Current Clients
Lawyer has a duty to take reasonable measures to safeguard client info.
a. i.e.: Don’t create a password for the cloud that is “password”
b. Comment 18: Facts to help you determine
c. Reasonable measures to store documents, change password if your account has been hacked, etc.
d. Not just storing but sharing also
TDRPC 1.05(b): Confidentiality of Information: (SHALL NOT)
(b) Except as permitted by p (c) and (d) or as required be (e) and (f), a lawyer shall not knowingly:
(1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information or;
(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm
(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations
(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation
TDRPC 1.05(c)(MAY REVEAL): Confidentiality of Information:
(c) A lawyer may reveal confidential information:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation
(2) When the client consents after consultation
(3) To the client, the client’s reps, or the members, associates, and employees of the lawyers firm, except when otherwise instructed by the client
(4) When the lawyer has to believe it necessary to do so in order to comply with a court order, a TDRPC, or other law
(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a lawyer/client controversy
(6) To establish a defense in a criminal charge, civil claim or disciplinary compliant against the lawyer or the lawyer’s associates based upon conduct involving the client tor the representation of the client
(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services has been used
MRPC 1.8(b): Current Clients: Specific Rules:
A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, as permitted or required by these rules
Rule 4.01:Truthfulness in Statements to Others:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client
Three Sources of “Competence” Accountability:
a. Tort Law – Legal malpractice, negligence standard
b. The disciplinary rules – MRPC 1.1 or TDRPC 1.01(a)
c. The Constitution – 6th Amendment or Strickland
Competence in Criminal Cases:
- Unsatisfied clients seek recourse against lawyers in various ways
a. Refuse to pay fees
b. File malpractice suits
c. File appeals because their lawyer was incompetent
i. Must prove only that the assistance of counsel was unusually poor but also that better representation would have made a different (i.e. “but for” the bad representation) - Sixth Amendment right to “effective assistance of counsel”
TEST: Two components to establish ineffective assistance of counsel:
(1) Serious error; and (2) Prejudice (Serious error of lawyer, lead to the bad result)
(1) D must show counsel’s performance was deficient.
a. Counsel made errors so serious that counsel was not functioning as guaranteed by the 6th Amendment
b. (i.e. serious error)
c. Not going to look over attorney’s shoulder w/regard to every tactical decision they make
(2) D must show that the deficient performance prejudiced the defense
a. Requires showing that the counsel’s errors were so serious as to deprive the D of a fair trial, a trial whose result is reliable.
b. (i.e. An error by counsel to set aside judgment, even if professionally unreasonable, does not warrant setting aside a judgment of a criminal proceeding if the error has no effect on the judgment)
MRPC 1.1: Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
• Requisite Ability: Legal knowledge, skill
• Adequate Conduct in the Representation: Thoroughness and preparation
Comment 2: A lawyer need not have special training or special experience to handle legal problems of a type which the lawyer is unfamiliar. Can be skilled as much as an experienced… (LOOK at the damages involved)
Comment 3: In an emergency a lawyer may give advice (when really would have referred or consulted but that’s impractical) but the assistance should be limited to that reasonably necessary in the circumstances for bad advice could jeopardize the client’s interest.
TDRPC 1.01(a): Competent and Diligent Representation:
(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyers competence, unless: (1) another lawyer who is competent to handle the matter is, w/the prior informed…
MRPC 1.1 v. TDRPC 1.01(a)
TDRPC 1.01(a): Similar to MRPC1.1, the TDRPC defines competence as reasonable knowledge, skill or training, but does not include “prep or thoroughness” like MRPC 1.1
• Also includes two exceptions (emergency and competence through associating other counsel) that are either in comments or implied in 101., cmt. 3
• Focus is more being competent to take the case vs. being competent during the case.
Biggest = Prep/thoroughness
Is it ever okay to lie?
- Ask: Is there an intent to deceive?
- Ethical rules specifically direct lawyers to not lie to tribunals or to persons other than clients
- Client may sue the lawyer in tort or in fraud (no limited to discipline through the rules)
- Fiduciary Duty/Lawyer/Client Relationship: One of most abundant good faith requiring absolute and perfect candor, openness and honesty, and the absence of any concealment or deception.
- Most lawyers see a lie & misrepresentation as the same thing – unless it’s a situation where you evade the question
a. Misrepresentation – Intent to deceive
Best Communication Practices:
- Return phone calls and e-mails by the end of the day
- Send status letters at least once a month (more frequently if the case demands so)
- Don’t make significant decisions in the litigation w/o consulting your client
a. Legal research, moving dates, etc. (No need to ask)
b. Venues, settling, things related to choices * Need to ask*
MRPC 1.3: Client Lawyer Relationship – Diligence:
A lawyer shall act with reasonable diligence and promptness in representing a client.
NOTE: 1.01(b) Distinction: A lawyer shall not (1) neglect a legal matter entrusted to him; or (2) FREQUENTLY FAIL to carry out the obligations that the lawyer owes a client (Comment 7: A lawyer who acts in good faith is not subject to discipline)
MRPC 8.4(c): Deceit or Fraud:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the MRPC, knowingly assist or induce another to do so, or do so through the acts of another
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
(d) engage in conduct that is prejudicial to the administration of justice
(e) state or imply an ability to influence …
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law..
MRPC 1.4: Lawyer Client Relationship: Communication:
A lawyer shall
(1) promptly inform the client of any decision or circumstance w/respect to which the cleint’s informed consent, as defined in 1.0(e) is required
(2) Reasonably consult with the client about the means by which the client’s objective is to be accomplished;
(3) Keep the client reasonably informed about the status of the matter;
(4) Promptly comply with reasonably requests for information; and
(5) Consult with the client about relevant limitation on the lawyer’s conduct when the lawyer knowns that the client expects assistance not permitted by the MRPC
(b) The lawyer shall explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation
TDRPC 1.03: (combines 3&4):
A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
• When read together the two rules function the same way (i.e. 1.03/1.4)
MPRC 2.1: Advisor:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to the law but to other consideration such as moral, economic, social and political factors, that may be relevant to the client’s situation.
• Mandatory: You shall render candid advice
• You may include – don’t have t include
o Refer to all moral/political factors (in the case of the memo)
Comment 1: A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
• This often comes into play because client’s come to you looking for a CYA (example: Client wants you to tell them they may fire an employee and be safe from discrimination claims), they then have the ability to turn around and sue you if they received “bad” advice.
Critical Distinctions MRPC 2.1 v. TDRPC 2.01:
- The two rules are substantially similar.
- Section sentence of 2.1 (re: non-legal advice) is omitted from the text of TDRPC 2.01 but included in Comment 2 of the rule.
Three facets that cannot be modified by agreement:
a. Cannot modify the scope so severely that representation would not be competent under MRPC 1.1 (See. 1.2 reasonable modification)
i. Example: File lawsuit but agree to conduct no discovery and not show up at trial
b. Cannot surrender the right to fire the lawyer
i. Lawyers never want to be fired from a contingency fee situation (you have a case even if client fires you but it gets ugly)
c. Cannot surrender the right to settle or otherwise stop litigation
i. Client cannot agree to let the lawyer decide on his/her own
MRPC 1.2(c): Scope of Representation and Allocation of Authority Between Client and Lawyer:
A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Sub. to the three rules that cannot be modified.
Critical Distinctions Between 1.2 (c) and 1.02(b):
Substantially similar and functionally identical.
The Competent Adult Client:
- The lawyer must keep the client “reasonably” informed about the “status” of the matter, to permit the client to make informed decisions regarding representation. (MRPC 1.4)
- Once consulted and advised, the client has the right to make decisions concerning the “objectives” of the representation and the explicit right to make four critical decisions:
a. Civil:- To settle or refuse to settle
b. Criminal:
- To settle or refuse to settle
- -To decide on the plea to be entered
- Whether to waive jury trial
- Whether to testify
Who Makes Decisions: The Restatement
Except for decisions reserved for clients and in the absence of an agreement on these matters, a lawyer may take “any lawful measure w/in the scope of representation that is reasonably calculated to advance a client’s objective”
a. To move to dismiss a complaint and what discovery to pursue or resist, to accommodate reasonable requests of opposing counsel b. To object or waive objection to questions during hearings, or c. To decide what questions to ask a witness
- In general, the client decides the objectives, the lawyer decides the means to accomplish those objectives.
