I apologize for not posting this earlier.
Friday’s questions are HERE. Spoiler alert, the answers follow this week’s Honor Roll.
Apparently, not many of my readers are NASCAR fans. Kudos to Penny Benelli, Beth DeBernardi, and Erin Gilmore for recognizing that Friday’s picture was of Dale Earnhardt, Jr. and me. Junior drives the 88.
- Laura Anderson, Nursing Supervisor, Mt. Ascutney Hospital & Health Center
- Matt Anderson, Pratt Vreeland Kennelly Martin & White
- Penny Benelli, Dakin & Benelli
- Alberto Bernabe, Law Professor, John Marshall Law School
- Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
- Erin Gilmore, Ryan Smith & Carbine
- Robert Grundstein
- Aileen Lachs, Mickenberg, Dunn, Lachs & Smith
- Samantha Lednicky, Downs Rachlin & Martin
- Kevin Lumpkin, Sheehey Furlong & Behm
- Lon McClintock, McClintock Law Office
- Hal Miller, First American
- Robyn Sweet, Core Registered Paralegal, Cleary Shahi & Archer
Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer. However, Client chooses not to retain Lawyer. Client notifies Lawyer of the decision.
Per the rules, Lawyer continues to owe Prospective Client a _____________, but in a somewhat relaxed fashion as compared to a former client.
- A. Duty of Loyalty
- B. Duty to Maintain Client’s Confidences
- C. Neither A nor B
- D. Both A & B
I don’t think I phrased the question well. Here’s what I was trying to help people to think about.
Rule 1.18 sets out the duties that a lawyer owes to a “prospective client.” A prospective client is one who consults with a lawyer in good faith and with an eye towards retaining the lawyer, but who, for whatever reason, does not retain the lawyer.
The duty to maintain the prospective client’s confidences continues to apply and IS NOT relaxed. Rule 1.18(b) says:
- “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.6 would require or permit or as Rule 1.9 would permit with respect to information of a former client.”
In other words, I read the duty to maintain the prospective client’s confidences to apply to the same extent & degree as it would apply if the client was a former client.
Further, I read the rule as relaxing, however little, the duty of loyalty as compared to the duty of loyalty owed to a former client.
With respect to a former client, Rule 1.9(a) makes it clear that a lawyer cannot represent someone whose interests are materially adverse to those of a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing.
Rule 1.18 is different. Specifically, Rule 1.18(c) states that “a lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).” (emphasis added). There’s no such proviso in Rule 1.9, the rule that applies to former clients.
In other words, as I read the rule, it’s not as strict as Rule 1.9 and applies only if the lawyer received information that could be significantly harmful to the prospective client. And, even then, paragraph(d) permits a firm to screen the lawyer who consulted with the prospective client. Normally, a former-client conflict under Rule 1.9 is imputed to all other lawyers in the firm by Rule 1.10 and, therefore, screening is not allowed. That’s another reason why I consider Rule 1.18 to relax the duty of loyalty.
Which must a lawyer keep for 6 years following the termination of a representation?
- A. The file
- B. Client confidences
- C. Complete records of funds held in trust and other property
- D. Electronic communications with the client
The rules require the file to be delivered upon the termination of the representation. Rule 1.16(d). There is no duty to keep a copy. Of course, it’s a good idea to do so and, odd are, your liabilit insurance requires you to.
Confidences must be kept forever, unless a client consents to disclosure or the information has become “generally known.” See, Rule 1.9(c).
Electronic communications are part of the file and there is no independent rule requiring them to be kept.
Rule 1.15(a)(1) requires lawyers to follow the trust account rules and prohibits commingling. It states that “[c]omplete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of representation.”
Attorney called me with an inquiry. I listened, then said:
- “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion. Whether the court grants it is another question. The question will be whether there will be a material adverse effect on your client.”
What type of motion?
Motion to Withdraw, See V.R.Pr.C 1.16(b)
Attorney represents Irving in the civil matter Irving v. James. Lawyer represents James and has retained Expert Witness.
Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:
- A. Rule 4.2 (the no-contact rule)
- B. Rule 1.6 (information relating to the representation)
- C. The Rules of Civil Procedure
- D. The Rules of Evidence
An expert witness is not represented by the lawyer who represents the party or person for whom the witness will be testifying. So, Rule 4.2 does not apply.
However, Rule 26 of the Rules of Civil Procedure limits the ways in which discovery may be obtained from an expert witness. Contacting that witness informally might not be one of them. Thus, in the hypo, Rule 26 answers the question. And, remember, a violation of the Rules of Civil Procedure might rise to the level of a violation of Rule 3.4(c) of the Rules of Professional Conduct.
When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others. Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend. Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.
He was hired. As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.
After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law. While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.
After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission. Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!! She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!
Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.
Name the tv show.
Mike Ross is a lawyer in Suits.