The Big Picture: Seven Steps to Ethical Client Representation (Preface)
Thursday, June 17th, 2010 @ 3:17 pm
Categories: General Topics

Preface

The Big Picture: Seven Steps to Ethical Client Representation

By Lawrence J. Fox

Susan R. Martyn


The Daunting Task

Representing clients can be daunting. We summarize here our seven-step approach to legal ethics issues, which we will refer to often in this book.

Step One: Identif’y Your Clients (Chapter 1)

Your role as an officer of the legal system creates primary obligations to clients, as well as responsibilities to courts and third parties. All of these obligations require you to identify your ctients, an inquiry that can produce unanticipated results.

In most situations, lawyers know who their clients are because they have expressly agreed to represent them. Increasingly, however, the law governing lawyers also has recognized what lawyers may think of as “accidental” clients, those a lawyer did not expect, but those recognized by law as being owed the same fiduciary duties lawyers owe clients they intend to represent.

General rules of contract and tort govern the creation of client-lawyer relationships. If you provide or agree to provide legal advice or services in response to a request for either, you have a client. Courts approach discrepancies in remembering what occurred from the viewpoint of the reasonable prospective client.

Once you identifjr accidental as well as intended clients, you will be in a position to avoid client-lawyer relationships you do not wish to create and embrace those you do. When you know your clients, you will be able to know who to bill and to whom you owe your 5 C fiduciary duties (see below).

Step Two: Clarify Your Fee (Chapter 2)

Lawyers are fiduciaries and therefore owe clients certain pre-contractual duties of fairness in bargaining for fees. Model Rule 1.5 articulates this premise by providing that you may not agree to, charge, or collect an unreasonable fee or expense. You are free to charge an hourly, flat, contingent or blended fee, but it must be reasonable. Contingent fees and agreements to split fees must meet specific writing requirements. All other fees should be communicated to the client, preferably in writing, along with the scope of representation and the basis or rate at which expenses are charged.

In an increasing number of situations, courts determine a reasonable fee. Often this occurs in a statutory fee shifting case, but it also can occur where a court has jurisdiction to consider the feeas part of its general obligations, for example, in approving the reasonableness of amounts owed by estate or trustee to a lawyer for the personal representative or trust.

Once you take on a representation and agree to a fee, fiduciary duties attach, making any attempt to modify a fee after the initial agreement subject to a presumption that you unduly influenced the client. Clients also have the right to fire lawyers at any time for any reason, and you must withdraw from a matter if this occurs. You also must withdraw when your other ethical obligations will be violated if you continue a representation.

Step Three: Attend to Fiduciary Duty: The Five C’s  (Chapters 3-7)

Lawyers assume five fiduciary duties -what we call the “5 C’s” -when an actual or implied client-lawyer relationship is established. These obligations rest on a key agency law insight in the law governing lawyers: that you derive your power fiom clients, but your superior knowledge and skill also allow you to override your client’s interests. You assume fiduciary duties of proper deference to client control, communication, competence, confidentiality, and conflict of interest resolution to ensure that the client’s best interests are promoted in a representation.

The first “C,” control (Chapter 3), assumes that, like other agents, you have a duty to act on the client’s behalf, subject to the client’s right to control the objectives of the representation. The law governing lawyers divides client-lawyer authority into three spheres. Clients have sole authority to determine the objective or goals of the representation. Lawyers have sole authority to take actions required by law before tribunals and to refuse to engage in unlawful conduct. Clients and lawyers share authority and are free to negotiate control in the vast middle sphere that governs all other aspects of the representation.

All three spheres of authority require that you initiate communication during a representation. When a client decision arises, you must promptly inform, consult with your client, and clarify your client’s decision. When a client insists on illegal conduct, you must inform the client that the conduct ,is not permitted, and explain why. When a F client has decided upon an objective, you should consult with the client about the means to accomplish it. The outcome of these consultations creates your actual authority and empowers you to act on behalf ofthe client. Clients also can be legally bound by apparent authority, which requires their own holding out to a third party that you are so authorized, even if you in fact are not.

The second “C,” communication (Chapter 4), is essential to every aspect of the client-lawyer relationship. It defines the initial terms of the representation and is necessary to make each of your fiduciary duties work properly. Clients cannot control the goals of a representation without understanding feasible legal options. You cannot act competently without understanding what your client hopes to accomplish and knowing how to get there. You need facts sufficient to permit you to apply the law to your client’s situation, and confidentiality helps you get them for the client’s benefit. And you must search for and resolve conAicts of interest to avoid favoring your own or some other person’s interest over that of your client.

The key to understanding your communication duty is to recognize when you must initiate the conversation. Several specific events trigger this obligation, including your initial engagement agreement, enabling your client to determine the objectives of the representation, keeping your client reasonably informed about the status of the matter, informing your client about any material mistakes you make, promptly responding to your client’s requests for information, and informing your client whenever the law imposes limits on conduct the client expects you to undertake. Further, you must specifically obtain your client’s informed consent to important decisions, including limiting the scope of a representation, obtaining waivers of fiduciary duties, (especially confidentiality and conflicts of interest), and before providing an evaluation for use by third parties that is likely to adversely affect the client’s interests.

The third “C,” competence (Chapter 5), focuses on why you were hired in the first place: to provide competent service in a complex legal system clients are not able to navigate themselves. Both tort law and the lawyer codes require “reasonable” competence and diligence. You do not have to be perfect, but you do have to meet or exceed the standard of practice in your jurisdiction. A violation of the Rules of Professional Conduct may be evidence of a lapse from the appropriate standard of care, whether in a civil suit or in an appeal from a criminal conviction based on ineffective assistance of counsel.

Lawyers also need to think about competence in a limited but growing class of cases where third-party nonclients seek relief, either as intended beneficiaries in a malpractice suit, or in a suit alleging fiaud. Some courts also recognize a cause of action against lawyers for negligent misrepresentation and for aiding and abetting a client’s breach of fiduciary duty. The fourth “C,” confidentiality (Chapter 6),ensures that clients are encouraged to share all relevant information with their lawyers. Without relevant facts, you can mistake what your client wishes to accomplish, the law that is relevant to your client’s circumstance, and other legal options that might be available to fulfill your client’s needs.

Modem confidentiality obligations originated in both agency law and the attomey- client privilege, an evidentiary doctrine. The agency fiduciary duty now resides in both the common law and the lawyer disciplinary codes, and protects all information relating to the representation of a client, from the initial prospective client communication, throughout the representation and beyond, even after your client’s death or reorganization. The evidentiary privilege is narrower, and may be invoked only before a tribunal to block disclosure of confidential communications between client and lawyer for the purpose of seeking legal advice. The law of evidence also immunizes lawyer work-product from discovery, which includes the lawyer’s opinions and mental impressions formed in representing the client in anticipation of litigation.

Both fiduciary duty and the evidence-based privilege recognize parallel exceptions, whose exact dimensions nevertheless may differ substantially, even within the same jurisdiction. Exceptions to the fiduciary duty usually grant lawyers discretion to disclose, and if you choose to do so, you must only disclose to the extent reasonably necessary to accomplish the narrow purpose of the exception. Once privilege exceptions are established, courts may order lawyers to testify, on pain of contempt if they refuse to do so.

Your fifth “C” requires you to identifj and avoid or resolve conflicts of interest (Chapter 7). This obligation is based on your fiduciary duty of loyalty, which imposes the obligation to seek client consent whenever your judgment might reasonably be called into question from the client’s point of view.

Both agency law and the lawyer codes recognize that conflicts of interest can arise fiom several sources, including the lawyer’s own personal interests, the interests of other clients, third persons, and former clients. Pursuing the client’s best interests requires you to remain vigilant throughout the representation so that you can recognize conflicts when they arise. Once identified, a conflict must be disclosed to your clientjs), unless doing so would violate another client’s confidentiality.

A lawyer’s conflicts are imputed to the lawyer’s h.This imputation assumes that lawyers readily interact with each other in firms, and that all firm lawyers owe loyalty to all firm clients. Imputation also requires a conflict of interest system to check for conflicts whenever a firmtakes on a new lawyer, new matter, or new client.

If conflict disclosure will not violate the lawyer’s duty of confidentiality, such disclosure is the beginning of the informed consent process, which allows your client to waive the conflict. In some situations, conflicts are so serious that client consent cannot vitiate them. When this occurs, you may not seek a waiver, and must turn down aprospective client or withdraw from representing a current client to avoid the conflict.

Step Four: Observe the Limits of the Law (Chapter 8)

Every agency and client-lawyer relationship is subject to one significant limitation: neither your client’s power of control nor your obligation of loyalty allows either of you to violate the limits or boundsof the law. Both of you remain responsible for the consequences of your conduct as autonomous legal persons.

The limits of the law include several familiar bodies of law that are explicitly incorporated into lawyer code provisions. The most obvious legal limits are created by the criminal law. Tort law, and in particular the law of fraud, creates similar limitations. The law of evidence, which recognizes ;the’client-lawyer privilege and the work product doctrine, is enforced by contempt orders and sanctions when violated. Courts also impose monetary sanctions for violations of procedural rules, such as Rules 11 and 26. Tribunals further exercise their inherent power when they disqualify, disbar, or discipline lawyers, or hold lawyers in contempt.

-Lawyer codes impose additional limits on client advocacy. Specific rules ex parfe contact with opponents, define improper inducements to settle a matter, and regulate lawyers who serve as witnesses in client matters.

All of these bodies of law impose limits or bounds that restrain unfettered client allegiance. If you violate these legal limits or fail to identi@ them to avoid violation by clients, you also may face professional discipline.

Step Five: Recognize Remedies (Chapter 9)

Lawyers owe agency-based fiduciary duties to clients, which trigger equitable as well as legal remedies. These fiduciary duties are the foundation for many of the provisions in lawyer codes, violation of which further triggers professional discipline. Client legal remedies also include claims for breach of contract, malpractice, and breach of fiduciary duty. Equitable remedies -for breaches of fiduciary duty also grant clients presumptions of undue influence and allow them to seek a constructive trust, disqualification or injunctive relief, fee forfeiture, or restoration of pre-contractual rights.

Lawyers who fail to understand a legal limit imposed on unrestrained client advocacy also may be accountable to third-party nonclients. Nonclients can seek tort relief against you if they are identified third-party beneficiaries, invited by you or your client to rely on your legal services, or if you commit crimes or intentional torts against them. In an increasing number of situations, nonclients also seek relief for negligent misrepresentation or aiding and abetting a client’s breach of fiduciary duty. Like, clients, nonclients can file disciplinary complaints, and nonclients involved in litigation also can seek procedural sanctions for frivolous actions or discovery abuse.

Step Six: Judicial Ethics for Lawyers (Chapter 10)

Judicial ethics is an important topic for lawyers because most judges are lawyers, and because lawyers interact with judges and are thereby “indirectly govemed” by the law that governs judicial conduct.

Of course, the lawyer’s role is pMisan: to represent the client’s interests zealously, within the bounds of the law.’ The touchstone ethic for judges is the opposite: impartiality, not partisanship. Like lawyers, judges have obligations of communication, competence, confidentiality, and conflict remediation, but these judicial obligations are intended to promote confidence in the independence, integrity, and impartiality of a public tribunaL2 The lawyer’s reciprocal obligation to respect the impartiality of a tribunal is set out in Model Rule 3.5.

Just as lawyersare subject to their jurisdiction’s version of the ABA Model Rules of Professional Conduct, judges are govemed by their jurisdiction’s judicial code, patterned after the ABA Model Code of Judicial Conduct and promulgated by the highest court.

Unlike lawyers, judges are absolutely immune from civil liability for their official duties, even if they act from improper motives. The Supreme Court has created this common law immunity to protect judicial independence and to encourage judges to decide all contested and controversial cases without fear of later legal retribution from the parties. An independent judiciary also promotes public confidence in the courts and the rule of law.

The ideals of impartiality and independence remain the primary goal of judicial ethics, embodied in both codes of judicial conduct and relevant statutory regulations.

I Model Rules Preamble [8]. 2 ABA Code of Judicial Conduct Canon I. Canon 1 promotes this goal by requiring compliance with law, MCJCRule 1. I, avoiding impropriety and the appearance of impropriety, MCJC Rule 1.2, and prohibit- ing abuse of power, MCJC Rule 1.3.

Judges should suspend judgment until all of the evidence has been introduced, and if they cannot act in an unbiased manner, they should disqualify themselves from the case.

Step Seven: How to Get Help (Chapters 1 1-12)

The legal regulation of lawyer conduct demands careful attention to identifying your clients, as well as to your 5 C fiduciary duties, and proper identification of the limits of the law. It also requires that you understand a range of distinctive remedies created by lawyer code, statute, or common law. To get the concrete answer to the legal issue you face, you need to find jurisdiction specific law, spot all of the relevant issues, and identify all of the potential consequences of your conduct. Consulting an expert, whether from an ethics hot line or a more formal consult, often will help. We hope this book will help grease the skids of your understanding of this law governing lawyers so that you will serve your clients well. If you do not, you may confuse your client’s identity, or worse, misunderstand your own obligations created by lawyer codes or other regulation.

You should most search for additional guidance when your conduct veers toward extremely directive or instrumental behavior. Fiduciary duty (Chapters 3-7) is designed to counter the former, the limits of the law (Chapter 8) the latter. You are most able to avoid these extremes and serve clients well if you aim for collaborative client-lawyer relationships.

Collaborative lawyers represent clients zealously within the bounds of the law. They are empathetic but offer objective advice, identifying enough with clients to do a good job, but not so much that they become tools for client wrongdoing. They learn from and advocate for their clients, while also teaching their clients the legal boundaries and public policy choices of the law that governs their client’s objectives. In short, collaborative lawyers translate their client’s private objectives into the public world of law and translates the law to their clients.