PROFESSIONAL RESPONSIBILITY
FALL 2009 GLESNER FINES
Preparation questions for Allocation
of Authority Between Attorney & Client
QUESTION 1: Linda
Lawyer filed suit on behalf of Client against client’s employer, claiming
wrongful discharge and sex discrimination.
Employer’s attorney filed an answer, and also filed a noncompulsory
counterclaim against Client for trade secrets.
Although there is a tolling issue, Lawyer is thinking of pleading
statute of limitations defense to the counterclaim; yet she would prefer to
meet the attack on the merits because, in her tactical judgment, she believes
that this approach would ultimately be stronger. She believes her client might also wish to
meet the issue on the merits, rather than have the question of her honesty
unaddressed.
Is it proper for Lawyer to
waive the statute of limitations defense when answering the counterclaim?
A. No,
because it is incompetent for a lawyer to waive a statute of limitations
defense, and client may not consent to a lawyer's incompetence
B. No,
because she would be prejudicing her client, who may not waive this prejudice.
C. Yes,
without the consent or direction of client, if Lawyer, in her best tactical
judgment regarding the means to answer this counterclaim, believes that she
should waive the defense.
D. Yes, if
the client had first made an informed decision to waive the statute of
limitations defense.
QUESTION 2: Attorney A was approached by Sam who asked for
assistance in filing an admittedly fraudulent claim for personal injuries. A
refused the representation and counseled Sam that filing a false claim would be
a violation of several different laws.
He told Sam, “Do what you want, but I’m advising you strongly not to
file this claim. I won’t represent
you. If you want an attorney to help
you, go see Attorney B, who has no scruples against filing false claims."
Sam obtained the services of Attorney B for the filing of the claim, however,
the case was dismissed almost immediately and Sam was required to reimburse the
insurance company for their costs and fees.
Is Attorney A subject to discipline?
A. Yes, Attorney A violated his duty to the public and the
courts.
B. No, because he counseled the client regarding the
limitations on his conduct.
C. No, because there was no harm to the insurance company.
D. No, because Attorney A was not in the same firm and did not
share fees with Attorney B.
QUESTION 3: Attorney
has agreed to represent Plaintiff in a personal injury action. The agreement provides that all of the
expenses of litigation shall be deducted from any amount collected. Attorney will then collect 35% of the
remainder as his fee. The entire fee
arrangement is in writing including the following clause: "To assure that Plaintiff does not
settle for too low an amount (thereby depriving Attorney of a reasonable
contingent fee), no settlement shall be accepted unless agreed to in writing by
both Attorney and Plaintiff." Many
of the lawyers in Attorney's city charge only one‑third, but some do
charge as much as 40%.
Is Attorney subject to
discipline?
A. No, because the limitation on settlement is intended to
assure Attorney a reasonable fee.
B. No, because the entire fee arrangement is in writing.
C. Yes, because the fee is excessive given the fact that many
lawyers in Attorney's city charge less than a 35% fee.
D. Yes, because Attorney may not deprive Plaintiff of the right
to decide whether to settle a case.
QUESTION 4: Darren
Driver injured Paula Pedestrian. Larry
Lawyer represents Paula, and has filed suit against Driver. On the day that Driver’s answer was due,
Arnold Attorney called Larry Lawyer and asked him to agree to a one-week
extension of the time in which to answer because Attorney had been out of town
due to a family emergency. A consent to
this extension would not prejudice Paula.
Which of the following
statements best describes Larry Lawyer’s obligation:
A. Larry may not agree to the extension of time unless Larry
first informs Paula and secures her informed consent.
B. Larry may not agree to the extension of time because it will
delay the proceedings and violate his duty of diligence.
C. Larry may agree to the extension of time even if Larry does
not inform or secure consent from Paula.
D. Yes, unless Paula had already informed Larry that under no
circumstances should Larry accede to any requests regarding continuances, no
matter how reasonable.
QUESTION 5: Uncle
approaches Lawyer seeking representation for his 12-year-old nephew Clarence,
who has been charged with some serious incidents of vandalism. Uncle tells
Lawyer that Clarence’s parents are taking a “tough love” stance and have
refused to help him. Uncle prefers that Clarence have representation and will
pay all of Clarence’s legal fees, should Lawyer agree to assume the
representation of Clarence. Lawyer met with Clarence and Clarence agreed to
Lawyer’s representation. Uncle issued a check for Lawyer’s initial retainer.
Clarence’s case proceeded to trial. At trial, Lawyer was convinced the
prosecution had failed to meet its burden of proof. He therefore moved for a
dismissal. The judge denied the motion and recessed the trial until the next
day. Lawyer told Clarence it would be unwise for Clarence to testify since the prosecution’s case was
so weak. Clarence protested, but accepted Lawyer’s advice and agreed not to
testify. On the steps of the courthouse the next morning, an angry Uncle
confronted Lawyer, saying, “You put my nephew on the stand or I’m not paying
the rest of his bill.” Lawyer needed the money so, against Lawyer’s better
judgment, he put Clarence on the stand. The jury acquitted Clarence.
Is Lawyer subject to
discipline?
A. No, because Clarence was ultimately acquitted.
B. No, because, as a juvenile, Clarence was incompetent to
direct the representation; so attorney could take direction from Uncle.
C. Yes, because he allowed Uncle to control his professional
judgment.
D. Yes, for allowing Client to testify when Lawyer felt he should
not do so.
THE ROLE OF ATTORNEY FIRM ASSIGNMENT
How we perceive our role as
an attorney is a critical aspect of lawyering.
It will guide our ethical decision-making in ways that no rules can ever
significantly change. This exercise is
designed to help you discuss and discover your attitudes toward lawyering.
Who’s in charge of your
representation? When you study Rule 1.2, you see that it does not give us a lot
of guidance on that question.
The rule says that attorneys
are in charge of “objectives” (whatever that means). But the same rule says that attorneys can’t
assist clients with objectives that are criminal or fraudulent. Also, we know from agency law that lawyers can
sometimes bind their clients even without actual authority from the client.
The rule also says that attorneys
are in charge of means, but must consult with the client (though when and how
that consultation is to occur is not clear).
From the comments to the rule, we get the impression that attorneys who
ignore a client’s express direction regarding means is unlikely to escape
without consequence (that “other law” the comments to the rules mention).
But most importantly on the
objectives/means spectrum, you need to realize how powerfully you can influence
a client. Social science has told us
that clients look for and defer to even subtle cues from attorneys about how
they should proceed. So you have a lot
of power. How should you use that power.
What kind of responsibility do you have for helping a client determine their
objectives? Should a lawyer direct,
engage, or follow client decisions?
One of the most important
challenges to lawyers and clients is addressing issues that are not controlled
by law. Will the client take steps
(legal steps) that will harm other people?
Will the officers of a corporation consider the effects of its actions
on workers, on consumers, or on the environment? In a divorce, will the client
take actions that will harm a child or spouse?
What role should the lawyer play regarding these questions? Over
recent decades, three schools of thought have emerged among legal ethicists and
legal clinicians concerning the lawyer’s role in the counseling
relationship.
Professors
David Luban, Deborah Rhode, and William Simon, advocate a more directive
lawyer, a lawyer who is willing to assert control of moral issues that arise
during legal representation. Bill Simon
argues in his book, The Practice of Justice, that “[l]awyers should take
those actions that, considering the relevant circumstances of the particular
case, seem likely to promote justice.”
He argues that the lawyer can find justice in “the basic values of the
legal system.” He assumes that lawyers
will control decisions in the law office and believes that those decisions
should be on the side of justice.
Deborah Rhode also argues that the lawyer should pursue justice. Her book, In the Interests of Justice, argues
that “[l]awyers can, and should, act on the basis of their own principled
convictions, even when they recognize that others could in good faith hold
different views.”
The
classic statement regarding the impact of this role on the lawyer’s ethical
responsibility has been outlined by Richard Wasserstrom:
“The job of the lawyer...is not to approve or
disapprove of the character of his or her client, the cause for which the
client seeks the lawyer's assistance, or the avenues provided by the law to
achieve that which the client wants to accomplish. The lawyer's task is,
instead, to provide that competence which the client lacks and the lawyer, as
professional, possesses. In this way, the lawyer as professional comes to inhabit
a simplified universe which is strikingly amoral - which regards as morally
irrelevant any number of factors which nonprofessional citizens might take to
be important, if not decisive, in their everyday lives.”
Richard
Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1, 8
(1975)
Questions
to consider regarding this approach:
1. How does the directive lawyer avoid imposing
her values on the client?
2. Does this model mean that the attorney is
morally responsible for his or her client’s choices?
3. How does this model work practically when the
client refuses to agree with the attorney’s moral assessment of a
decision?
May a lawyer simply refuse to represent any and all
client with whom the attorney disagrees?
(no, see Rule 1.16(c) following)
May an attorney withdraw because of these
disagreements? (maybe, see Rule 1.16(b)(4), but remember that if appearance has
been entered, must ask court’s permission to withdraw. Rule 1.16(c))
In the “client-directed” model of representation, the client is in charge. Those who advocate for this approach believe
that client autonomy is “of paramount importance” and therefore that in the law
office, “decisions should be made on the basis of what choice is most likely to
provide a client with maximum satisfaction.”
The lawyer should not act in ways that will influence the client’s
choice. The lawyer should be “neutral”
and “nonjudgmental.” The client-centered
counselors allow the lawyer to raise moral concerns if the client decides to go
in a direction that the lawyer believes to be “clearly immoral,” but otherwise,
client values should prevail. Paul
Tremblay, David Binder, Paul Bergman, and Susan Price advocate this approach in
their Lawyers as Counselors: A Client-Centered Approach. Other leaders of the client-centered school
include Robert Bastress and Joe Harbaugh.
Questions
for this approach include:
1.
What’s the difference between being a client-centered lawyer and merely acting
as a “hired gun” in the hands of the client?
2. Where is there room for an attorney’s
independent moral autonomy under this model?
3. How does this model work when the client has
limited ability (a child, an individual with limited decision-making capacity,
etc.?) Note that the Model Rules of
Professional Conduct provide almost no clear direction on this matter. See
Thomas
Shaffer proposes a third approach: the collaborative lawyer or “lawyer as
friend” model. He argues, in Lawyers,
Clients, and Moral Responsibility (with Robert Cochran), that the lawyer
should approach difficult moral decisions in consultation with the client, as a
friend would approach a friend. The
lawyer should neither ignore difficult issues nor impose her views on the
client, but raise difficult issues and engage in moral discourse with the
client. When the lawyer and client
consider various options, the lawyer should ask the client to identify not only
the “consequences to client” of each, but consequences to other people as
well. Among the many questions that the
lawyer raises with the client in the course of decision-making should be the
question, “What would be fair?” This
question does not impose the lawyer’s values on the client, but calls on the
client to draw on his own moral resources.
Other leaders of this school include Howard Lesnick, John Dipippa, and
Martha Peters.
Questions
that are often raised regarding this model include:
1. As a practical matter, is there really time
for moral discourse in the hourly-billing-driven practice of today? Should a client pay for advice they don’t
want?
2.
Has our society become so individualistic that true moral discourse is no longer
possible?
Note
that there is no right or wrong here in terms of professional regulation: ABA Model Rule of Professional Conduct 2.1
states, “In rendering advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social and political factors, that may
be relevant to the client’s situation.”
This is not really a rule (“a lawyer may” raise such issues). The answer in negotiating the netherworld of
your relationship with your client is to be found in your overall philosophy of
lawyering and your relationship with each individual client.
This
assignment is designed to help you consider your “default rule” when it comes
to the allocation of decision-making authority between an attorney and client.
Prepare to discuss and find consensus on
the following questions:
1. Who are the clients your firm is likely
to be representing? What are their
expectations likely to be regarding their relationship with attorneys?
2. Which of the following statements does
your firm believe should best reflect its “default position” in terms of
counseling? That is, absent some special
considerations for a particular client or a particular situation, when a client
walks in your office, what are you going to assume will be the terms of the
relationship? What will you communicate
to your client about how you work?
Consider each of these statements and circle the one statement your firm
agrees represents the best approach to counseling your clients. Be prepared to defend that choice.
·
The effective
practice of law rests on power and control.
A good lawyer is one who dominates a situation.
·
An attorney
who tries to convince a client that the client’s goals or motives are
personally (not legally) unwise or unjust will be out of business.
·
Since an
attorney cannot divorce him or herself from personal values, the attorney must
engage a client in a discussion of those values when they conflict with the
client.
·
A lawyer’s
first duty to their clients is to give them the broadest range of advice
regarding their actions, even if that advice requires consideration of
non-legal matters.
·
People do not
hire attorneys for their practical or moral wisdom. When someone hires an attorney, he or she
wants advice only on the technicalities of the law.
·
Provided the
end sought is not illegal, the lawyer is, in essence, an amoral technician
whose peculiar skills and knowledge in respect to the law are available to
those with whom the relationship of client is established."
·
Only a client
knows what they really want: Lawyers
should not be second guessing a client’s motives or goals. A lawyer’s job is simply
to help a client reach those goals.
·
Clients hire
their attorneys to help the client accomplish their goals.
·
An attorney
who simply follows a client’s directions, even if the attorney disagrees with
the personal (not legal) wisdom or justice of those directions, will be out of
business.
·
A lawyer must
never forget that he is the master. He
is not there to do the client's bidding . . . .
The lawyer must serve clients' legal needs as the lawyer sees them not
as the client sees them.
·
Counsel must
be the manager of the law‑suit. If tactical decisions are to be made by
the defendant he is likely to do himself more harm than good . . . . One of the surest ways for counsel to lose a
lawsuit is to permit his client to run the trial.
·
A lawyer is
not responsible for the consequences of his or her work, so long as they do not
flow from his or her unlawful acts or from incompetence.
·
Lawyers should
never give advice to clients about moral, psychological, or economic decisions
because lawyers are not clergy, psychologists or financial experts
·
One’s personal
values are an inappropriate input to decision-making as a lawyer.
·
The effective
practice of law rests on empowering clients.
A good lawyers is one who facilitates communication and problem solving.