Professional Responsibility

Ch. 2 basic elements of law

practice
Part 2
Termination, Competence, Allocating
Decision-making Between Lawyer &
Client
Prof. George W. Conk
Senior Fellow, Stein Center for Law &
Ethics, Fordham Law School
Room 8-122

Ch. 2 - part.2 Basic elements of

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Termination
Ending the attorney client
relationship

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Termination

By mutual consent

By unilateral act of the client

By unilateral act of the attorney

By change of circumstances

- death or disability of attorney

or client
Ch. 2 - part.2 Basic elements of
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Q. 2-21 Was transferring files for review

proper?

(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, Alphas delivery of the files
was necessary to protect the clients
interests.
(D)No, because Alpha did not obtain
Ch. 2 - part.2 Basic elements of
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Transferring the file due to

disability Q. 2-21 p. 82

Was Attorney Alpha obligated to

withdraw after suffering a heart
attack?

What options did he have?

Was it proper for Alpha to deliver

the files to Beta for review?
Ch. 2 - part.2 Basic elements of
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RPC 1.16 Mandatory withdrawal

(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
Ch. 2 - part.2 Basic elements of
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R. 1.14 Client With Diminished Capacity

When a client's capacity to

make adequately considered
decisions... is diminished (due
to)
minority
mental impairment, or
other reason
the lawyer shall, as far as
reasonably possible, maintain a
normal client-lawyer
relationship
(a)

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Q. 2 22 p. 83 Electco
Must

the attorney abide

by his clients judgment

and go to trial rather than
seek settlement?

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Q. 2-22 p. 83 Electco

Must Attorney withdraw as counsel in

the case?
(A) Yes, if Electco is controlling
Attorneys judgment in settling the
case.
(B) Yes, because a lawyer should
endeavor to avoid litigation.
(C) No, if Electcos defense can be
supported by a good faith argument.
(D)No, because as an employee,
Attorney is bound by the instructions
of the general counsel.
Ch. 2 - part.2 Basic elements of
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MRPC 3.1 Meritorious Claims and

Contentions

A lawyer shall not bring or defend a

proceeding, or assert or controvert
an issue therein, unless
there is a basis in law and fact for
doing so that is not frivolous, which
includes a good faith argument for an
extension, modification or reversal of
existing law.
Ch. 2 - part.2 Basic elements of
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10

When you and the client dont

agree

When & why may a lawyer be

compelled to work against her will?

What is the functional equivalent of

a conflict of interest in Whiting v.
Lacara?

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Q. 2-23 p. 83 May the attorney

withdraw from the representation?

(A) Yes, because the Client agreed, and the

Attorney gave the client sufficient notice to
obtain replacement counsel.
(B) Yes, because the Client had made it
unreasonably difficult for the Attorney to
carry out the representation effectively.
(C) No, because the Court denied the
Attorneys request to withdraw.
(D)No, because the Attorneys withdrawal
would cause material prejudice to the Client,
and the Clients agreement was not
Ch. 2 - part.2 Basic elements of
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12
voluntary.

Q. 2-24, p. 90 Is advance consent to

withdrawal for non-payment proper?

(A) Yes, because the financial burden of

continuing the representation was..
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 clients 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
Ch. 2 - part.2 Basic elements of
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13
advice before
the stipulation.

Q. 2-25, p. 91
Are we neutral partisans?

What conception does RPC 1.16

present?

Are we simply mouthpieces?

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MRPC 1.16 (b) permissive withdrawal

(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;
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MRPC 1.16 (b) permissive withdrawal

(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;
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MRPC 1.16 (b) permissive withdrawal

(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

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MRPC 1.16 (b) permissive withdrawal

(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.
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Local Rule 1.4 - SDNY

An attorney who has appeared

as attorney of record for a party
may be relieved or displaced
only by order of the court and
may not withdraw from a case
without leave of the court
granted by order.
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Local Rule 1.4 - SDNY

Such an order may be granted

only upon a showing by affidavit
or otherwise of satisfactory
reasons for withdrawal or
displacement and the posture of
the case, including its position, if
any, on the calendar.
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FRCP 11

Attorneys have a duty to the court

not to make legal contentions ...
[un]warranted by existing law or by a
nonfrivolous argument for the
extension, modification, or reversal
of existing law....
Whiting v. Lacara, 187 F.3d 317, 32223 (2d Cir. 1999)
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CLIENT-LAWYER RELATIONSHIP

Rule 1.2: Scope of Representation

and Allocation of Authority
between Client and Lawyer
(a) a lawyer shall abide by a
client's decisions concerning
the objectives of representation
and,
consult with the client as to the
means by which they are to be
pursued.
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Authority Reserved to a Client

Restatement 22
except when the client has validly
authorized the lawyer to make the
particular decision
Whether and on what terms to settle
a claim
How a criminal defendant should
plead
To waive a jury trial in a criminal case
Whether a criminal defendant should
testify
To appeal in
civil
proceeding
or
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Authority Reserved to a Client

a client may revoke a lawyer's
authority to make such
decisions

A client may not validly

authorize a lawyer to make
such decisions when other law
requires the client's personal
participation or approval
e.g. - criminal-procedure rules re
pleas, jury-trial waiver, and
defendant testimony

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Authority Reserved to Lawyer

Restatement 23
A lawyer retains authority that
may not be overridden by the
client:
(1) to refuse to perform,
counsel, or assist acts the
lawyer reasonably believes to
be unlawful;
(2) to make decisions or take
actions the lawyer reasonably
believes to be required by law
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Authority Reserved to Lawyer

Lawyer decides after consultation:

what witnesses to call

whether and how to crossexamine

what jurors to accept or strike

what trial motions to make

all other strategic and tactical

decisions
Source: ABA Standards Relating to the
Administration of Criminal Justice
4-5.2(b) (2d ed.1982)
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I want to bury them

Mary has sued (with apparent good

cause) her uncle, aunt, and first
cousins.

She says to her attorney: issue

subpoenaes to deposition for 10 AM
on Christmas Eve. Theyre not going
anywhere for Chirstmas
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Model Rule 4.4 Respect for Rights of

Third Persons

(a) In representing a client, a lawyer

shall not use means that have no
substantial purpose other than to
embarrass, delay, or burden a third
person, or use methods of obtaining
evidence that violate the legal rights
of such a person.

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V. Competence
The biggest challenge

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Discipline
Q. 2-26 p.92

Is Attorney subject to discipline for

not initially filing a responsive
pleading to the counterclaim?
(A) Yes because he neglected the
case
(B) Yes, unless Attorney had asked
leave of court to withdraw.
(C) No plaintiff breached his
agreement to pay
(D) No because plaintiff suffered no
loss
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Q. 2-27 Upon Attorneys advice, Witness

persisted in her refusal to answer
Witness was subsequently convicted
for her refusal to answer. Is Attorney
subject to discipline?.
(A) Yes, because Attorneys advice to
Witness was not legally sound.(B)
Yes, because Witness, in acting on
Attorneys advice, committed a
crime.(C) No, if the offense Witness
committed did not involve moral
turpitude.(D) No, if Attorney
reasonably believed Witness had a
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Q. 2-28 p. 93 Is the sole practitioner

subject to discipline?
(A) Yes, because the sole practitioner
neglected the defendants case.
(B) Yes, because the sole practitioner
shared fees with the recently
admitted lawyer.
(C) No, because the defendant agreed
in writing to the co-counsel
arrangement.

(D) No, because the appellate court

Ch. 2 - part.2 Basic elements of
indicated that
the defendants32appeal
law practice

Q. 2-29 p. 94 Emergency call

Was the attorneys conduct

proper?

(A)Yes, because neither referral

to another lawyer nor
consultation with another
lawyer was practical under the
circumstances.

(B) Yes, because the attorney was

Ch. 2 - part.2 Basic elements of
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Q. 2-29 p. 94 Emergency call

(C) No, because the attorney had

no special training or experience
in criminal cases. did not have
the requisite level ofcompetence
to accept representation in the
case.

(D) No, because the attorney did

not have the requisite level of
competence to accept
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Rule 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.
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Q. 2-30 p. 96
Although the associate prepared
diligently, the landlord lost the trial. Is
the attorney subject to discipline?

(A) Yes, because the attorney did not

ensure that the associate was
competent to conduct the trial on her
own.
(B) Yes, because the landlord lost the
trial.
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Q. 2-30 p. 96
Although the associate prepared
diligently, the landlord lost the trial. Is
the attorney subject to discipline?

(C) No, because the attorney could

reasonably assume that, having
been admitted to the bar, the
associate was capable of conducting
the trial.
(D) No, because the landlord did not
object to the associates
representation.
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2-31, p. 97 Legal assistant misplaces

file, case filed late

(A) Attorney is subject to civil liability

and is also subject to discipline on
the theory of respondeat superior
(B) Attorney is subject to civil liability
or is subject to discipline at Clients
election.

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2-31, p. 97

(C) Attorney is subject to civil

liability but is NOT subject to
discipline unless Attorney failed to
supervise the legal assistant
adequately.
(D) Attorney is NOT subject to civil
liability and is NO

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Rule 1.3: Diligence

A lawyer shall act with

reasonable diligence and
promptness in representing a
client.

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Rule 1.4: Communication

(a) A lawyer shall:

(1) promptly inform the client of

any decision or circumstance with
respect to which the client's
informed consent is required

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MRPC 1.1 Comment

In an emergency a lawyer may give

advice or assistance in a matter in
which the lawyer does not have the
skill ordinarily required where referral
to or consultation or association with
another lawyer would be
impractical.

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Rule 1.4: Communication

(2) reasonably consult with the

client about the means by which
the client's objectives are to be
accomplished

(3) keep the client reasonably

informed about the status of the
matter
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Rule 1.4: Communication

(4) promptly comply with

reasonable requests for
information

(5) consult with the client about

limitations on the lawyer's
conduct when the lawyer knows
that the client expects assistance
not permitted by the RPCs or
other law.
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Prospective client Q. 2-33, p. 106

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Civil liability
malpractice

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General principle Restatement 48

a lawyer is civilly liable for

professional negligence to a
person to whom the lawyer owes
a duty of care***if the lawyer
fails to exercise careand that
failure is a legal cause of injury
The standard of care is the
competence and diligence
normally exercised by lawyers in
similar circumstances
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Malpractice Liability

Negligence
Breach of fiduciary duty
Standard of care rule, custom,
statute, protocols
Violation of rule or statute
Nonclients
Contract of Tort?
Firm and partner iability
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Q. 2-32 p. 106 Is the attorney subject to

civil liability?

(A) Yes - the attorney falsely advertised

his availability for medical malpractice
cases.
(B) Yes- the attorney did not advise the
man as to the date the statute of
limitations would expire.
(C) No -the attorney did not violate any
duty owed to the man.
(D) No - the attorney offered to refer
the man to another lawyer.
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Q. 2-33 p. 106 I shouldve had a better

settlement Ron is

(A) not barred from suing Jane Lawyer.

(B) barred from suing Jane Lawyer
because he voluntarily agreed to the
settlement.
(C) barred from suing Jane Lawyer
because the settlement was fair.
(D) barred from suing Jane Lawyer
unless Jane intentionally mislead Ron
regarding the terms of the settlement.
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Ziegelheim v. Apollo (NJ 1992) p. 107

The fact that a party received a
settlement that was "fair and
equitable" does not mean necessarily
that the party's attorney was
competent or that the party would
not have received a more favorable
settlement had the party's
incompetent attorney been
Ch. 2 - part.2 Basic elements of
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Ziegelheim v. Apollo (NJ 1992) p. 107

Attorneys who pursue reasonable
strategies in handling their cases and
who render reasonable advice to
their clients cannot be held liable for
the failure of their strategies or for
any unprofitable outcomes that
result because their clients took their
advice.

Ch. 2 - part.2 Basic elements of

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Question 2-34, p. 111 Agreement to

release attorney from liability

Is the attorneys retainer agreement

with the client proper?
(A) Yes, because the attorney
furnished consideration by agreeing
to
return the clients file.
(B) Yes, because the attorney
reasonably believes that his fee is
fair and that the quality of his work
will be competent.
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Q. 2-34 release from liability

(C) No, because the attorney is

attempting to limit his liability for
malpractice.
(D) No, because the attorney uses a
preprinted form for all
retainers

Ch. 2 - part.2 Basic elements of

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Q. 2-35 Agreement to settle claim

Was attorneys conduct proper?

(A) Yes, if Attorney advised Buyer in

writing that Buyer should seek
independent representation before
deciding to enter into the settlement
agreement.
(B) Yes, because Attorney reasonably
believed that the proposed
settlement was fair to Buyer.
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Q. 2-35 Agreement to settle claim

Was attorneys conduct proper?

(C) No, because Attorney improperly

settled a case involving liability for
malpractice while the matter was still
ongoing.
(D) No, unless Buyer was separately
represented in negotiating and
finalizing the settlement agreement.

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Q. 2-36, p. 114 Is an agreement to

limit representation proper?

(A) Yes, because the client and not

the attorney suggested this
arrangement.
(B) Yes, because the attorney and the
client may agree to limit the
scope of the representation so long
as the limitation is reasonable under
the circumstances.
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Q. 2-36, p. 114 Is an Agreement to limit

representation proper?

(C) No, because the attorney should

not limit the scope of the
representation based on the clients
ability to pay.
(D) No, because the scope of the
representation may not be limited in
a criminal case.

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Lerner v. Laufer (NJAD 2003) p. 115

Why is Laufer not liable when his
agreement contained an
unlawful agreement not to sue?

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Lerner v. Laufer (NJAD 2003) p. 108

At the heart of this case lies a clash
over two significant values to the
legal community.
The first is the value more recently
discerned and encouraged in
resolving disputes by mediation. The
second is the older, more established
value perceived in the resolution of
conflict in adversarial proceedings by
parties represented by fully
independent and empowered
attorneys.
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MRPC 1.0 (e) Informed consent

the agreement by a person to

a proposed course of conduct
after the lawyer has
communicated adequate
information and explanation
about the material risks of and
reasonably available alternatives
to the proposed course of
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MRPC 1.2 Scope of representation

(c) A lawyer may limit the scope

of the representation if the
limitation is reasonable under
the circumstances and the client
gives informed consent.

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MRPC 1.8 (h) A lawyer shall not:

(1) make an agreement prospectively
limiting the lawyer's liability to a
client for malpractice unless the
client is independently represented
in making the agreement; or

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MRPC 1.8 (h) A lawyer shall not:

(2) settle a claim or potential claim
for such liability with an
unrepresented client or former client
unless that person is advised in
writing of the desirability of seeking
and is given a reasonable
opportunity to seek the advice of
independent legal counsel in
connection therewith.
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Professional Negligence
New York Pattern Jury
Instruction

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NY PJI 2:152 MALPRACTICE

ATTORNEY

An attorney who undertakes to

represent a client impliedly
represents that

- she possesses a reasonable degree

of skill

- is familiar with the rules regulating

practice in actions of the type which
she undertakes
to bring or defend
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66

NY PJI 2:152 MALPRACTICE

ATTORNEY

[is familiar with] such principles

of law in relation to such actions
as are well settled in the
practice of law

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67

NY PJI 2:152 MALPRACTICE

ATTORNEY

- She will exercise reasonable

care.

Reasonable care means that

degree of skill commonly used
by an ordinary member of the
legal profession.
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68

PJI 2:152, CONTD

LIMITS OF ATTORNEY/AGENTS
OBLIGATION
However, an attorney is not a
guarantor of the result of the
case.

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69

PJI 2:152, CONTD

Consent

Moreover, if an attorney points

out to the client the nature of
the risks involved in a certain
course of procedure and the
client elects to follow that
course, the attorney is not
responsible for the
Ch. 2 - part.2 Basic elements of
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consequences.

70

70

PJI 2:152, CONTD

PROVING THE LOSS

Even though you find that

defendant was negligent in
failing to bring an action against
[John Doe] on plaintiff's behalf,
plaintiff may not recover in this
action unless you further find
that plaintiff would have been
successful in an action against
[John Doe] had one been
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71

PJI 2:152, CONTD

PROVING THE LOSS

In order to decide the latter

question, you must, in effect,
decide a lawsuit within a lawsuit.

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72

PJI 2:152, CONTD

PROVING THE LOSS

If you find that on the evidence

plaintiff would not have been
successful, then you will find for
defendant on this issue.
In such an action [insert rules
that would govern burden of
proof and substantive law in the
action against [John Doe].
Ch. 2 - part.2 Basic elements of
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73

Restatement 3rd
The Law Governing
Lawyers

Lawyers Civil Liability

48, 50, 52, 53, 54,
58
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74

 48 Professional Negligence--Elements
and Defenses Generally
a lawyer is civilly liable for
professional negligence to a
person to whom the lawyer owes
a duty of care within the
meaning of 50 or 51
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75

 48 Professional Negligence--Elements
and Defenses Generally
if the lawyer fails to exercise
care within the meaning of 52
and

if that failure is a legal cause of

injury within the meaning of

53,
unless the lawyer has a defense
within the meaning of 54.
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76

 48 Professional Negligence--Elements
and Defenses Generally
In addition to the other possible
bases of civil liability described
in
49 [breach of fiduciary duty]
55 [contractual, restitutionary]
56 [general substantive law*]
* e.g. - crimes, conversion, fraud,
assault, civil rights, employment
discrimination, consumer
protection
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77

 50 Duty of Care to a Client

a lawyer owes a client the duty

to exercise care in pursuing the
client's lawful objectives in
matters covered by the
representation.
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78

 52 The Standard of Care

(1) a lawyer who owes a duty

of care must exercise the
competence and diligence
normally exercised by lawyers in
similar circumstances.
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79

 52 The Standard of Care

(2) Proof of a violation of a rule or

statute regulating the conduct of
lawyers:
(a) does not give rise to an implied
cause of action for professional
negligence or breach of fiduciary
duty;
(b) does not preclude other proof
concerning the duty of care
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80

 52 The Standard of Care

Violation of an RPC, etc.

(c) may be considered by a trier

of fact as an aid in
understanding and applying the
standard of [ordinary care]
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81

 52 The Standard of Care

to the extent that

(i) the rule or statute was
designed for the protection of
persons in the position of the
claimant and

(ii) proof of the content and

construction of such a rule or
Ch. 2 - part.2 Basic elements of
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statute is relevant to the

82

82

 53 Causation and Damages

Ordinary rules of causation and

damages apply

But see Conklin v. Hannoch

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83

 54 Defenses; Prospective Liability

Waiver; Settlement with a Client

A lawyer is not liable for any

action or inaction the lawyer
reasonably believed to be
required by law, including a
professional rule.
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84

 54, contd
Limiting Prospective Liability

(2) An agreement prospectively

limiting a lawyer's liability to a
client for malpractice is
unenforceable.
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85

 54, contd
Limiting Prospective Liability

(3) Client may rescind settlement

with lawyer if:
(a) subjected to improper
pressure by the lawyer in
reaching the settlement; or
(b) (i) the client was not
independently represented in
negotiating the settlement, and
(ii) the settlement was not fair
and reasonable to the client or
former client.
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86

Professional
Liability Insurance
Risk

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87

Elements of Professional Liability Insurance

Application
Coverage
Defense
Indemnification
Claims-made
Disclosures
Reporting
Deductibles
Limits

Aggregate
Per claim
Defense costs
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88

The Application

Nature of practice
Years of practice
Licensing status
Disciplinary history
Claim History
Potential claims

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89

Potential claims

(34) At this time, does Applicant

know of any act, omission or
circumstance that could
reasonably give rise to a
professional liability claim against
any of the following: the firm, any
past or present attorneys in the firm,
or any Predecessor Firm?
If yes, please provide full details
on firm letterhead.
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90

Coverage - 1. WHAT THIS POLICY INSURES

a) The claim must arise out of the

rendering of or the failure to render
professional services.

b) The claim must be caused by an

Insured under this policy or by
any person for whose acts,
errors or omissions you are
legally liable.
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Professional Services means

a) services you render

in a lawyer-client relationship as
a
lawyer
mediator
arbitrator
notary public

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Professional Services rendered as

Administrator
Conservator
Receiver
Executor
Guardian
Trustee
or in any similar fiduciary
capacity
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Professional Services means

Member of an
Accreditation
Ethics, peer review
Licensing
Standard review
Bar association or similar
professional board or committee

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LAWYERS PROFESSIONAL LIABILITY

INSURANCE POLICY
ProDirect Essentials

COVERAGE

This is a CLAIMS-MADE AND

REPORTED policy with claim
expenses included within the
limit of liability.

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LAWYERS PROFESSIONAL LIABILITY

INSURANCE POLICY
ProDirect Essentials
Coverage is limited to liability for
only - those claims that are first
made against you and first
reported to us
- after the retroactive date and
DURING the policy period
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Coverage - 1. WHAT THIS POLICY INSURES

Subject to the terms, conditions,

exclusions and limitations of this
policy, we will pay on your behalf
all sums

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Coverage - 1. WHAT THIS POLICY INSURES

which you become legally

obligated to pay as damages
because of any claim(s)

first made against you during

the policy period

up to the limits of this policy.

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Coverage 2. When a Claim is first made

a) when you first receive written

notice that a claim has been
made; or

b) when you first receive

information or have knowledge
of specific circumstances
involving a particular person or
entity which could reasonably be
expected to result in a claim.
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Coverage 2. Per claim limits

All claims arising out of a single

or series of related acts, errors,
omissions or personal injury
arising from the rendering of or
failure to render professional
services on behalf of a single
client will be considered one
claim.

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DEFENSE AND SETTLEMENT (INCLUDED IN

LIMIT OF LIABILITY)

We have the exclusive right to

investigate, defend and/or settle
any claim made under this
policy, even if the allegations are
groundless, false or fraudulent.
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Intentional criminal acts not

insurable

We are not obligated to defend

any criminal investigation,
criminal proceding or
prosecution against you.

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Defense attorneys

You are responsible for any fees

charged by a lawyer defending
you without our written consent.

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DEFENSE AND SETTLEMENT (INCLUDED IN

LIMIT OF LIABILITY)

If the claim is excluded under

this policy, we will have no duty
to defend it.

Payment of claim expenses will

reduce the amounts available to
pay damages.

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DEFENSE AND SETTLEMENT (INCLUDED IN

LIMIT OF LIABILITY)

Our duty to defend any claim or

pay any amount as damages or
claim expenses will cease when
our limit of liability has been
exhausted.

Upon exhaustion of the limits of

liability, we will tender control of
the defense to you. You agree to
accept this tender of defense.
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