Professional Responsibility Law 115 Wed., Sept. 12

1. Professional ResponsibilityLaw 115Wed., Sept. 12

2. Multistate Practice

3. Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law • A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so

4. Lawyer admitted in Va. represents a Va. client in litigation in Cal. without getting pro hac vice admission as required under Cal. lawLawyer has violated Va. disciplinary Rule 5.5(a)

5. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

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

7. 5.5(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

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

9. 5.5(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

10. 5.5(c)(1)are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter

11. 5.5(c)(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized

12. 5.5(c)(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission

13. 5.5(c)(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

14. NOT enough:You are admitted in Md. onlyA Va. client comes to your office about representing him in connection with the purchase of a Va. company

15. You are admitted in Md. onlyA Md. client comes to your office about representing him in connection with the purchase of a Md. companyIn assessing the value of the company, you go to Va. to examine some of its assets there

16. MR 5.5 Comment 14“The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction.”

17. You are admitted in Md. onlyA Virginian comes into your office to have you negotiate in Va. the signing of a contract with another Virginian to build a hospital in Md.

18. You are admitted in Md. onlyA Md. client comes to your office about representing him in connection with the purchase of a Va. company

19. - You are admitted in Md. Only- A Virginian comes into your office to have you negotiate in Va. the signing of a contract with another Virginian to build a hospital in Md.- Subsequently, the Virginian asks you to negotiate in Va. the signing of a contract with another Virginian to build a hospital in Va.

20. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.

21. Disciplinary Jurisdiction

22. 8.5(a) • A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs.

23. 8.5(a) con’t A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.

24. choice of law

25. 8.5(b)(1)- for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise;

26. 8.5(b)(2) • jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. • A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

27. Introduction to Lawyer-Client Relationship

28. Restatement of the Law Governing Lawyers § 14. Formation Of A Client–Lawyer Relationship A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide the services.

29. scope of the representation

30. Limiting Scope of Representation Contractually • MR 1.2(c) (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

31. Allocation of Authority between lawyer and client Two issues 1) when can lawyer bind client - issue of agency law 2) when can lawyer be disciplined (1.2a) for acting contrary to the client’s wishes or without consultation with client

32. Lawyer may bind client if • Express agency • Client explicitly tells lawyer that he can act on his behalf concerning the matter • In some cases client is prohibited from giving express authority • Eg pleading guilty or not guilty in criminal case • Can revoke at any time

33. MR 1.2(a) “lawyer shall abide by client’s decision as to whether to settle a matter”

34. MR 1.2 Comment [3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.

35. In re Lewis (Ga. 1995)- lawyer disciplined for including in contingent fee agreement a provision giving him full power to settle without further authorization)

36. Implied agency • Authority that is assumed by virtue of creation of attorney-client relationship, or authority that reasonable follows from the particular express agency conferred by the client • can by overridden by client’s express wishes • If overridden, the client cannot be bound by lawyer’s actions

37. a lawyer settles for his client, even though the client never expressly gave the lawyer the power to do so can opponent hold client to the agreement?

38. a lawyer settles for his client, even though the client expressly forbad the lawyer from doing socan opponent hold client to the agreement?

39. Inherent authority- assumed to exist by virtue of the lawyer-client relationship - cannot be overridden by cleint’s express wishes - e.g. the power to make admissions binding on the client before court

40. - a lawyer tries to settle for his client- the other side asks “did your client give you authority to settle?”- the lawyer says yes- this is false – client expressly said no authority to settlecan defendant hold client to the agreement?

41. Apparent authority • Restatement § 27. A Lawyer's Apparent Authority • A lawyer's act is considered to be that of the client in proceedings before a tribunal or in dealings with a third person if the tribunal or third person reasonably assumes that the lawyer is authorized to do the act on the basis of the client's (and not the lawyer's) manifestations of such authorization.

42. Teleprompter case (2d. Cir. 1979)- principals had agreed on basic terms- lawyers drafted the details- Telep’s lawyer was told that Telep’s president had signed- lawyer informed other side of this fact- then management changed and they refused to turn over documents- ct held apparent authority existed

43. disciplinary law on the division of authority in lawyer-client relationship

44. MR 1.2(a) • Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

45. MR 2.1 • 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 law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

46. - a lawyer refrains from telling his client about an insufficiently low settlement offer in fear that the client will take it- they go to trial and the client wins much more than was offered.  - may the lawyer be submitted to disciplinary sanctions?

47. Comment 2 to 1.2 • “Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved.”

48. A client in a civil case insists that a lawyer present an argument in a brief that the lawyer believes is frivolous and would subject him to Rule 11 sanctions. May the lawyer refuse to include the argument?

49. MR 3.1 • 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.

50. 1.16(a) • Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: • (1) the representation will result in violation of the rules of professional conduct or other law