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How are lawyers regulated?

By the Board and the Supreme court before being barred and then also by the court and the ABA/Wis Bar after barred. (OLR – office of lawyer regulation) BBE (Board of Examiners)

Who does the regulating?

o   The state you are in (SC) or State of ABA, sometimes federal agencies pg 10

o   Courts the lawyer has jurisdiction in 

Why are lawyers regulated?

o   The public protection, enforcing ethical standards, maintain public trust, ensuring public competence

Lawyer regulation generally

• entry into the profession (admission to the bar), lawyers admitted to practice (given law license, called discipline), contemporary lawyers are vulnerable to civil action for legal malpractice

• Bulk comes from the highest court of what state you are licensed to practice in (Wisconsin Supreme Court)

• Displume is from substance law and procedural law from SC

• For malpractice is judges and jury – also set down by the SC most likely

• Individual judges, state and federal legislative and administrative agencies, insurance companies also play a significant role in regulating lawyers

Qualifications in Wisconsin

o   (1) Has attained the age of majority under the law of this state. 

o   (2)Satisfies the legal competence requirements by diploma privilege (SCR 40.03), bar examination (SCR 40.04) or proof of practice elsewhere (SCR 40.05). 

o   (3)Satisfies the character and fitness requirements set forth in SCR 40.06.

o   (4)Takes the oath or affirmation prescribed in SCR 40.15 in open court before the supreme court or a justice thereof or before a member of the highest court of another jurisdiction or a person authorized by that jurisdiction to administer the attorney's oath for bar admission there or before a judge of the U.S. District Court or Court of Appeals or a justice of the U.S. Supreme Court.

o   (5)Subscribes the roll of attorneys maintained by the clerk of the supreme court or has his or her name entered thereon by the clerk.

Issue: Who regulates Lawyers and how are they regulated?

Rule: The bodies that regulate them are: State SC, State Bar, ABA or federal agencies. They are regulated because for public protection, enforcing ethical standards, maintain public trust, ensuring public competence. They are regulated by entry into the profession (admission to the bar), lawyers admitted to practice (given law license, called discipline), contemporary lawyers are vulnerable to civil action for legal malpractice

Why Good Moral Character

o   Protecting future clients

o   Protecting public imagine

o   Protecting current clients

Cases that show issues for character and fitness

• Radtke

  • Mischaracterizing your unprofessional conduct

  • Giving bar admissions the impression that you are continuing to mislead something that you are not past your problem

• Little John

  • Bar admissions guard their authority

  • Don’t want to or will look at other authorities

• Hauserman

  • No contact order against this applicant, continued to violate it

    • Lack of respect for the law itself

    • Violates both a university directive and a post-grad directive, then fled out a harassment charge, then was not fully candor about his misdeeds.

• Jarrett

  • Conditions get attached – 2-year appointment of a monitor to oversee, etc.

    • It’s a new-er thing and as

  • Misrepresentations on resumes will get you or client to in trouble, failure to report, not filling out the forms properly

MRPC 8.1 (Bar Admission and Disciplinary Matters)

• An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

  • (a) knowingly make a false statement of material fact; or

  • (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Summary: Requiring absolute honesty and cooperation when dealing with bar admissions or disciplinary authorities. It applies equally to bar applicants seeking admission and licensed attorneys involved in their own or someone else's disciplinary or admission proceedings

MRPC 8.4 (Misconduct)

• It is professional misconduct for a lawyer to:

  • (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

  • (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

  • (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

  • (d) engage in conduct that is prejudicial to the administration of justice;

  • (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

  • (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or

  • (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Summary: defines what constitutes professional misconduct for an attorney. It serves as a catch-all rule to discipline lawyers for actions that undermine the integrity of the legal profession, even if those actions occur outside the courtroom or the direct representation of a client.

WI SCR 20:84: defines professional misconduct for attorneys licensed to practice law in Wisconsin

It is professional misconduct for a lawyer to engage in actions including but not limited to: violating the Rules of Professional Conduct; committing adverse criminal acts; engaging in dishonesty or misrepresentation; or improperly claiming governmental influence. Additionally, misconduct includes assisting judicial violations, breaching court regulations, violating the attorney oath, failing to cooperate with lawyer regulation investigations, or engaging in professional harassment based on protected characteristics (while accommodating legitimate advocacy)

WI SCR 40.01

establishes the definitions and the list of approved law schools for Chapter 40 governing admission to the State Bar of Wisconsin. 

WI SCR 40.02:

outlines the general qualifications an individual must meet to be admitted to the practice of law in the state of Wisconsin. 

            1 Age of Majority

            2 Legal Competence

            3 Character & Fitness

            4 Oath

            5 Roll of Attorneys

 

WI SCR 40.03:

governs the diploma privilege for admission to the practice of law in Wisconsin

WI SCR 40.04:

governs the legal competence requirement through the bar examination for admission to the practice of law in Wisconsin

WI SCR 40.05

governs admission to the practice of law in Wisconsin based on proof of practice elsewhere (also known as admission on motion or reciprocity)

WI SCR 40.06:

requires every applicant for bar admission to establish good moral character and fitness to practice law. 

WI SCR 40.07

requires a bar admission applicant to prove they meet all necessary qualifications

WI SCR 40.08

governs the process for an adverse determination by the Board of Bar Examiners (BBE) when an application for bar admission is at risk of being denied or is denied

WI SCR 40.09

sets the deadline for admission to the practice of law in Wisconsin

WI SCR 40.10:

allows the Board of Bar Examiners to waive any requirement of Chapter 40 in exceptional cases and for good cause if failing to do so would be unjust, except for the diploma privilege requirements under

Issue: What is considered for good character and fitness?

Rule: Moral Character: Demonstrating honesty, trustworthiness, candor, and respect for the law. Background History: Investigating past criminal records, traffic violations, financial debts, and employment history. Academic Record: Reviewing past schooling for any history of academic misconduct or plagiarism. Mental Health and Conduct: Assessing whether past or current behaviors might affect the safe and ethical practice of law (though heavily debated regarding privacy and fairness

Issue: Why do we have it? (character and fitness)

Rule: Protecting future clients, Protecting public imagine, Protecting current clients.

Issue: what is the most problematic thing in character and fitness?

Rule: Not fully disclosing on the bar application (Model Rule 8.1), or instances that happened during 3L year because of its close proximity.

Issue: What is professional misconduct in Wisconsin?

Rule: In Wisconsin - It is professional misconduct for a lawyer to engage in actions including but not limited to:violating the Rules of Professional Conduct; committing adverse criminal acts; engaging in dishonesty or misrepresentation; or improperly claiming governmental influence. Additionally, misconduct includes assisting judicial violations, breaching court regulations, violating the attorney oath, failing to cooperate with lawyer regulation investigations, or engaging in professional harassment based on protected characteristics (while accommodating legitimate advocacy)

MRPC 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

MRPC 1.3 (Diligence)

A lawyer shall act with reasonable diligence and promptness in representing a client.

MRPC 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, as defined in Rule 1.0(e), is required by these Rules;

  • (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;

  • (4) promptly comply with reasonable requests for information; and

  • (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

• (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

MRPC 8.5 (Disciplinary Authority; Choice of Law) 

• (a) Disciplinary Authority. 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. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.

• (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

  • (1) for conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and

  • (2) for any other conduct,

    • (i) if the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and

    • (ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

How, operationally, does the disciplinary system work? What functions does it serve?

• By the Board and the Supreme court before being barred and then also by the court and the ABA/Wis Bar after barred. (OLR – office of lawyer regulation) BBE (Board of Examiners)

• The state you are in (SC) or State of ABA, sometimes federal agencies pg 10

• Courts the lawyer has jurisdiction in 

How discipline works specifically

File a complaint, screening if it actually violates (dismissal of frivolous claims), then formal charges, a hearing, recommendation based on that hearing and then the final SC issues punishment.

Why are lawyers regulated?

The public protection, enforcing ethical standards, maintain public trust, ensuring public competence

Interstate / Multistate Discipline: Wisconsin 8.5

• Lawyer licensed in WI is subject to WI to disciplinary authority regardless of where lawyers conduct take place

• For conduct before a tribunal, the rules of the jurisdiction in which the tribunal sits apply to lawyers’ conduct

  • Be familiar with the rules and discipline prinpals of where the tribunal sits

• For non-tribunal conduct, lawyer admitted only in WI is subject to WI rules of professional conduct

  • Transaction, real estate deal

  • Regardless of where deal is

• For non-tribunal – lawyer licensed in both WI and elsewhere is subject to the rules of their lawyer principal location, EXCEPT for specific conduct that has its predominant effect in the other juris in which the lawyer is licensed

  • Let’s say every connection to the deal is in IL the default would be IL even if WI is the principal practice location

• Safe haven: lawyers reasonable believe that the predominant effect of lawyer’s conduct will occur in State X renders Lawyer safe from WI discipline authorities if conduct satisfies rules of State X

  • Wrong but reasonable then you are safe

  • Here’s why I concluded I should follow this states rule – Wisconsin, prominent effect of conduct related to WI

MRPC 8.3

• (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

• (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

• (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Rule 8.3(a): The Duty

• 1. Knowledge

  • Source of discussion on how much knowledge. Actual knowledge.

    • Lawyer 2 has to witness the conduct of Lawyer 1 (met with rejection)

    • Conduct in question more likely than not occurred (Court)

      • Bar described it similarly – reasonably knows it to be fact

  • There has never been a duty to report gossip

  • Must be knowledge that another lawyer violated rule of conduct

    • 1. To trigger duty the misconduct must be that of another lawyer

    • 2. Conduct outside of the field constitute professional misconduct and can kick in wherever and whenever– both on the job and away

    • 3. Substantial to get to the seriousness of the offense – the more serious the conduct the more substantive it raises

• 2. Violation of the rules

• 3. Raising substantial question

• 4. Honesty, trustworthiness, fitness

  • Comments try to explain it in an unhelpful way – “self-regulating profession must reasonably endeavor to prevent”

    • 1. The duty applies to all misconduct that is deemed … need not rise to the level of a crime or a tort

    • 2. The conduct need not occur while the bad lawyer was working in their professional capacity

      • AZ matter ex: knowledge of lawyer’s consistent failure to file tax returns – demonstrates that conduct undertaken by lawyers in their capacity as private citizens renders them as reportable if someone comes to learn of those bad acts

• 5. Appropriate professional authority

  • Office of lawyer regulations

8.3(c): limits on the duty

• 1. Confidentiality exception

  • Does not require disclosure of information of confidentiality

  • Phrased in 1.6

  • Legal – relating to representation of a client

• 2. note Explicitness of WI 20:8:3(c)

Balancing of two competing interests

• Confidentiality trumps the duty to report

• Comments of 8.3 – client can consent to disclosure if doing so would not substantially prejudice the client’s interest

• Abide by the clients wishes as

Contexts of confidentiality

• Misbehaving lawyer as client

•    Misbehaving lawyer as predecessor

• Misbehaving lawyer as adversary

• Misbehaving lawyer as colleague

How to NOT to Deal with the Obligation

• James Himmel (IL)

  • Lesson:

    • First, around the country had gotten an increase in discipline reports

    • In a civil matter it may be inappropriate to use the promise not to report to gain leverage over a misbehaving lawyey

• HW’s Colleagues (NY)

  • SC reversed the dismissal and held for Howard

    • The employment agreement had an implied promise that they would not interfere with Howards professional obligations

    • What the firm did was choose between conduct requirements and his own employment

Issue: When should an Attorney rat on another attorney for misconduct?

• (1) The associate has actual knowledge or a clear belief about pertinent facts, (2) the conduct violates one or more of the professional rules of conduct, (3) the violation raises a substantial question about the partner's honesty, trustworthy Ness or fitness as a lawyer, (4) and none of the information is protected by the rule of confidentiality of 1.6 or was gained while participating in a lawyer assistance program

  • Does not have to raise to the level of a crime and can be from when outside professional capacity.

MRPC Scope ¶ 20

These changes reflect the decisions of courts on the relationship between these Rules and causes of action against a lawyer, including the admissibility of evidence of violation of a Rule in appropriate cases.

MRPC 1.8(h)

• (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

  • (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.

How does the action for legal malpractice work?

• It’s a civil lawsuit against a lawyer for professional negligence or misconduct

• Tort, breach of contract, breach of fiduary duty

What are its elements?

Duty (attorney-client relationship), breach (failed to act with skill and care of a reasonably competent atty; simple bad outcomes do not count), causation (you were directly harmed by the mistake), damages (you suffered a loss)

What functions does it serve?

Compensating victims, enforcing accountability, deterring negligence

In what respects does it differ from an action triggered by the filing of a grievance with disciplinary authorities?

• The core difference is that a malpractice suit is a private lawsuit designed to compensate the client for financial harm, while a grievance is a regulatory complaint designed to protect the public and discipline the professional.

• Also where it takes place, who initiates it, standard of proof, what must be proven, outcome.

Identify other forms of regulation intended to maximize the prospects that lawyers perform competently.Take note of these.

o   Preventative rules: who can practice law

o   Sanctions

o   Bar exams

Notes

• 1. Legal Malpractice

  • Elements

    • Duty (at the moment the lawyer client relationship is formed, unless exceptions apply – lawyer being a specialist)

    • Breach

    • Causation

    • Harm

• 2. Wisconsin Civil Jury Instructions

• 3. Role of expert testimony

• 4. Relationship between violation of Model Rules and standard of care in malpractice action (¶ 20 scope model rules)

• 5. Lack of expertise no excuse – obligation to consult with lawyer qualified to assist or to refer matter elsewhere

• 6. Following instructions: olfe v. Gordan (heavily cited case)

  • ****You can produce enforceable documents, but if you haven’t effectuated the clients wishes than you have breached the standard of care

    • The lawyers didn’t do the one thing she wanted done so she was not protected against the default she predicted would happen

    • Didn’t even need and expert to testify this because its obvious

• 7. Ineffective assistance

  • Subcomponent lawyers and reasonable probability that the conduct caused a difference in an outcome of the trial

  • Only have to know what’s in the reading – they have to be innocent?

    • 1. Doesn’t get much help from malpractice claims

    • 2. There may be a constitutional claim to help

• 8. Sanctions form trial judge

  • Judges have almost* unlimited power to sanction lawyers – i.e. women wearing pants in court

  • Fined, compel to pay fees and costs for the other side showing up, massive discretion

• 9. Protecting against malpractice liability rule 1.8(h)

• 10. Liability to Non-Client

Difference between ¶20 and jury instructions

• Violation of the rule MAY be evidence of a breach, but not always nor does it make the standard of duty

• First issue of P of expert would say – no Ps med mal lawyer would accept a settlement without having client examined to see the extent

• Same thing with the tax matter – if cl brings the tax expert and they would say they had lots of options to choose and they chose a bad one

  • Lack of expertise is not an answer to excuse a justification

Privity

• For a long time it was believed atty only have responsibility for privity

• Development in the law in this area – 4 situations (pg 63 – 64)

  • 1. If an attorney reveals confidential information of a prospective client (even if there is no attorney client relationship established)

    • What a prospective client says to you – that information is protected by atty client privilege and confidentiality

  • 2. Liable to beneficiaries if a lawyer’s substandard conduct in connection with an estate plan is to prevent a beneficiary of getting the bequest it ought to have gotten

    • Even if the beneficiary is not connected to lawyer in a relationship

• 3. (D is worth calling to attention but this is not what Rofes wants to talk about)

  • 3. If a group of people approach a lawyer for a legal obtainment, but lawyer only enters into agreement with one, but knows a whole bunch of people are going to counting on the lawyer’s opinion, then the non-clients may have actions for reading the opinion

Model 1.8(h)

Can’t make an agreement prospectively limit the lawyer’s liability unless the client is independently represented in making the agreement;

MRPC 7.1 (Communications Concerning a Lawyer’s Services)

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

MPRC 7.2 (Advertising)

• (a) A lawyer may communicate information regarding the lawyer’s services through any media.

• (b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:

  • (1) pay the reasonable costs of advertisements or communications permitted by this Rule;

  • (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;

  • (3) pay for a law practice in accordance with Rule 1.17;

  • (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:

    • (i) the reciprocal referral agreement is not exclusive; and

    • (ii) the client is informed of the existence and nature of the agreement; and

  • (5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.

• (c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:

  • (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and

  • (2) the name of the certifying organization is clearly identified in the communication.

• (d) Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.

MPRC 7.3 (Solicitation of Clients)

• (a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

• (b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:

  • (1) lawyer;

  • (2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or

  • (3) person who routinely uses for business purposes the type of legal services offered by the lawyer.

• (c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:

  • (1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

  • (2) the solicitation involves coercion, duress or harassment.

• (d) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.

• (e) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

WI SCR 20:7.1

prohibits lawyers from making false or misleading communications about themselves or their services. 

WI SCR 20:7.2

governs how lawyers may advertise their services and prohibits paying compensation for client referrals

WI SCR 20:7.3

governs direct contact with prospective clients and regulates how lawyers may solicit professional employment

To what extent has the First Amendment’s guarantee of freedom of expression invalidated limits on the rights of lawyers to market their professional services?

o   Mailers were allowed but with limitation

o   Person to person not allowed

o   Overhearing

o   Inaccurate or misleading

How have these professional rights evolved?

• Used to not be able to advertise at all but now you can

• Internet advertisement – must follow certain regulations

  • Via ABA

• TV ads are allowed now

• If you don’t let advertisement only established lawyers have client connections

How does constitutionally unprotected solicitation differ from constitutionally protected advertising?

• Unprotected is not protected by first amendment – direct communication, aggressive, misleading

• Protected IS under 1^st amendment – so mass marketing, mailing, blogging, seminars

What if anything justifies this disparate treatment under the law?

o   Socilication from interest is less traceable

o   It takes time to determine advertisement with new forms of tech emerging

o   Protected have been around for a long tom

o   One is more harmful and targeted

Wis 7.1 – all communications and the services they provide

• Makes clears that false or miscommunications are subject to discipline

• A-d categories that presumptively mislead

  • 1. That contain material misrep or that omit a fact that in doing so makes the statement misleading

  • 2. Unjustified expectations in prospective clients

  • 3. Can’t use words for phrases of comparison unless it can be substantiated

  • 4. Testimonies and endorsement

Wis 7.1 Examples

• 514 – PI lawyer Zang air print and television ads showing Atty being in court and litigating even though he does not usually – nobody there actually tried anything expect for one where there was a mistrial

  • The AZ Supreme suspended him

• WI lawyer – spent most of his time doing quickie divorces in the Dominican republic

  • Lawyer neglected to mention that the divorces were to void or voidable in most American jurisdictions

• Sometimes courts go easy on a misrepresentation

  • Spoke of offices in 9 different locations but constituted nothing more than a conference room for hourly or monthly basis. MN said this is misleading, but we’ll cut him a break due to public embarrassment already

Wis. 7.2 – can advertise in all sorts of media in all sorts of ways

• Cant pay for recommending services

• Lawyer ads get in trouble for what they OMIT and what they CONTAIN

Despite abundant first amendment protection

• Profession still frowns on certain approaches

  • States could not longer to forbid lawyer advert – they still confirmed suspension of Orliek

    • Used a tape recorder – Orlieks in person solicitation was deemed sufficiently different than advert services – this was a different constitutional result

    • Validated the longstanding ban on certain times of adverts for certain clients

    • Many states assumed constitutionally okay to forbid all sorts of targeted contact; in person, in mail, telephone,

  • In Shapiro

    • Solicitation through the mail does not pose the same dangers as perspective clients that are posed by the in-person stuff and Oreliek

    • In person (no protected by constitution) v. Not in-person (protected)

    • Forced states back to revised 7.3 (solicitation of clients)

7.3

• 1. Forbids most lawyer initiated in person, live telephone, or real time for pecuniary gain

  • Exception – circumstance where they had prior relationship s

• 2. (b) – reminds even in circumstances where presumption is okay, the lawyer may still overstep the law

  • Lawyer who continues to solicit and unwanted party, the atty ought to know they can’t make a decision about representation, and a

  • (1) – physical emotional or mental state seems unlike they will excessive reasonable judgment

    • Sometimes catches lawyers being bad, sometimes it can be used against lawyers not doing anything problematic

• (b-)(c) – coercion, duress, or harassment subjects lawyer to discipline

  • WI (c) – free to engage in solicitation but must label it as such and have to be filed in 5 days with the OLR

7.3 Cases from Rofes

• Florida Case

  • Turned up at the hospital after victim had suffered brain injury and tried brain damaged victim to sign a representation agreement

  • Florida had lawyer disbarred

• WI

  • Unsolicited inperson and live telephone – prison inmate and their relatives and would insist that the mom should wire the lawyer 2k before lawyer would begin to work on her sons case

  • Afterwards the lawyer opened personal checking, wrote a check, then at the pre-trial hearing where judge said motion was bad, lawyer

  • License revoked

• NJ cases – examples of prohibition of lawful contact with folks who are in no condition of excursing reasonable judgment

  • 1. Lawyer sent letter to family the day after sons remains had been identified in an aircraft accident

    • Harsh and public repriman

  • 2. Local law firm set up offices in Winnebago after gas line explosion harmed residents of a apartment

    • Supreme said these displaced residents were not in the place to make a legal judgment about representation, even if they think they can and wanted to obtain representation

• Alabama case

  • How easy it is for courts to manipulate the prohibition on otherwise permissible soliciations that amount to cours say allege amount of coerson, duress, harass

  • 19 month child death after left in a van operated by daycare center

  • Lawyer sent a wreath of flowers to the funeral home with a note to the family – sympathies, contact us for this

  • Along with the letter, which seemed far from poor taste, a copy of the firm’s broachure was placed in the flowers

  • AZ supremes took away their liscenes for 2 years but could not point to a piece of law that lawyer had violated

    • Not in person, not on phone – concluded that it was harassment ?

2 Other aspects of anti-soliciation

• Not permitted to seek to circumvent the laws by looking to get other ppl to do what they cannot

  • “Runners” not permitted to do things lawyers cannot do

• WI case – lawyer who sought to use wide range of folks and institutions to do inperson

• CA case – some acts of getting business are outlawed under state stats that apply to ppl also not lawyers – lawyer sent four million sheets of solicitation through mail with connection to homestead filings – violated piece of cali law that applied to everyone

  • Judgment 400k civil and 400k in restitution

Casebook 524(3)(a)

o   Addresses the free-speech case of a Florida accountant – sought to make his account practice by doing precisely what lawyers are not permitted to do (knock on doors, and live telephone of folks) had a rule similar to 7.3 which prohibited accountants from doing these practices

§  Scott was unhappy and challenged the rule and won a victory in nation’s highest court

§  15 years after Orlick (7.3 responsibilities) court sings a different tune in the context of accountants – majority of thought how wonderful commercial communication is and solicitation

§  Unbelievably lame effort to distinguish a lawyer case and the accountant case – only focused on the type of clients being solicited

§  PI people are unsophticated injured people, where accountants have experienced businesspeople

o   1. Internet speech as it related to securing business

• Lawyers and those who regulate them still make their way adapting to

• Whole history of on the Web – influential document is a white paper on advertising (note four on 525) – can provide legal information, giving legal advice is generally problematic because it can lead to an inference of a lawyer client relationship

• 526 – a lawyers use of text message as a device is typically viewed as safe and lawful – may piss off recipient but okay because it is more like and email rather than a phone call

White pages

• 2 themes in those documents

  • 1. Targeting perspective clients occurring electronically these days that when used in other non-internet contexts is bad

    • Some say these lawyers are being careless if they do this

  • 2. The more provocative – regulators have not entirely figured out whether it makes sense how to go about adapting a set of rules that came to be with person to person to blogs, links, spamming, etc. websites that change from day to day

    • Certain issues have settled comfortably – text-based email looks like mail so it does not clash

    • Other types – look and feel much like in person communication

• Single insight – tend to be stretching the rules of professional conduct to internet speech that offends them even if it often difficult to find the rule that it is said to violate

  • TN lawyer – “two most hated individuals in the history of the internet”

  • What did they do? They had an immigration law practice and they spammed thousands of lists of groups with promotional groups about their immigration law practice

    • Filed – SC suspended him but had issues of the law

    • Best it could do would be conclude that they engaged in conduct prejudicial of justice in 8.4 (catch all)

2. Issue – unsolicited calls rofes gets

• About to change jobs, what can I say to clients I would like to keep – even that I’m moving to a place of employment

  • Law governing continues to evolve

  • 5 obligations in this situation

    • 1. Implicates body of law – disclosing depending departure, in timely fashion, for active matters you have been playing a principal role (affirmative obligation to share about departure with certain clients) No authority with clients you have not done or substantially done

      • Lawyer do it themselves

      • By the firm of departing firm

      • Or done jointly (ABA have endorsed as the best)

• 4 principals (1)

  • Only reach out to clients whose active matters you the depravity lawyer has responsibility

  • Should not urge clients to sever relationship with the firm leaving behind - May indicate willing of lawyer to continue responsibility

  • Clients have the right who will do their legal work

  • Departing lawyer is not to disparage the firm left behind

How is the relationship formed?

-       There is either a tort or a contractual relationship – duty v. fiduciary

-       Could be through engagement letter or

-       The disclosure of information and documents by a prospective client

When is the relationship formed?

• According to the release statement third, lawyers section 14:

  • (1) a person manifests to a lawyer that the person's intent that a 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

What if any obligation does lawyers have to undertake matters – representations – they would prefer not to undertake?

• Attorneys in private practice generally have no ethical or legal obligation to accept a client or matter they prefer not to take, but exceptions apply when a court or public appointment assigns the case

  • Have to take – appointed, public defender, order by court (judge can deny motion)

  • Have to refuse if – conflicts of interest, lack off competence

What are the most deleterious mistakes lawyers make in preliminary consultations with prospective clients?

-       Not giving them updated information or all the information because they “aren’t the client”

-       Allow legal agents to handle it – still responsible for them

What circumstances fall into each of the categories, mandatory withdrawal and discretionary withdrawal?

• Lawyer has to get court approval in litigation but especially for criminal cases, can if they believe they are unable to properly represent (competency, moral difference)

• Mandatory withdrawal

  • Violation of rules or law, capacity issue, atty is discharged, conflict of interest arises

• Can withdraw

  • No harm to client

  • Client persists on criminal / fraudulent action

  • Client using services to perpetrate crime or fraud

  • Fundamental disagreements

  • Failure to pay

  • Unreasonably difficult to do job

  • Other good cause

 

MRPC 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, as defined in Rule 1.0(e), is required by these Rules;

  • (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;

  • (4) promptly comply with reasonable requests for information; and

  • (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

• (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

MRPC 1.2 (Scope of Representation & Allocation of Authority Between Client & Lawyer)

• (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. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

• (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

• (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

• (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

MRPC 1.16 (Declining or Terminating Representation)

• (a) A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation. 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

  • (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;

  • (3) the lawyer is discharged; or

  • (4) the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct. 

• (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

  • (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;

  • (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;

  • (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;

  • (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.

• (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

• (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

MPRC 1.18 (Duties to Prospective Client)

(a)  A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b)  Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c)   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). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d)   When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1)   both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2)   the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i)    the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii)   written notice is promptly given to the prospective client.

Formation of the Relationship

-       According to the release statement third, lawyers section 14:

o   (1) a person manifests to a lawyer that the person's intent that a 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

Lessons from Togstad

-       1. A lawyer who leaves the situation unclear as to the relationship is going to find out that while intending sending the client away, down the road judgment can be entered against them.

-       2. Lawyers love to demonstrate their expertise. The most damaging thing Miller did was to opine about the merits of the claim or claims while also purporting to decline a representation

o   Be careful (1) if taking a meeting with prospective why? (2) if you are not intending to take on the client be extremely careful to retrain from giving an opinion on something you chose not to undertake.

Consequences of formation

-       Assumption of duties (competence, communication, diligence)

-       Conditionality duty arises even if representation declined

Engagement Letter (cb p 86)

-       Identity of client

-       Scope/objective of representation

-       Basis of fee and related financial matters

-       Other important aspects of relationships

Allocation of Decision-making authority

-       Rule 1.2 and Morris Cannell: limiting scope to churning and suitability issues

-       Should you seek his permission to plead lack of sophistication?

-       Who decides whether to accept an offer of settlement? A pleas in criminal case?

-       Bloom: does client autonomy extend to the decision to die (cb 91)

Communicating with Clients

-       Vilardo & Hamilton/Pier Pieces

Getting Out (1.6)

• 1.16 (a) – Mandatory withdrawal

  • Shall

  • Any one of the thing

    • Rules of conduct violation

    • Physical or mental impairment of the lawyer

    • Lawyer is discharged

    • The client seeks to use services to advance a crime or fraud

• 1.16 (b) – Discretionary withdrawal

  • May – there is discretion

  • Any one of the things

    • Without material adverse effect on interests of client

    • Reasonably believe crime or fraud

    • Has used services for crime or fraud

    • Repugnant or fundamental disagreements

    • Clients not paying

    • Will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client

      • Happens mostly in contingent fees

  • Other good cause

• 1.16 (c) – Court order to continue

• 1.16 (d) – Protecting (former) client after withdrawal

Issue: When is the atty client relationship formed?

Rule: According to the restatement statement third, lawyers section 14:

• (1) a person manifests to a lawyer that the person's intent that a 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

Issue: what obligations do lawyers have to take cases?

Rule: Attorneys in private practice generally have no ethical or legal obligation to accept a client or matter they prefer not to take, but exceptions apply when a court or public appointment assigns the case. Can’t discriminate though.

-       Have to take – appointed, public defender, order by court (judge can deny motion)

-       Have to refuse if – conflicts of interest, lack of competence

Issue: When does an attorney have a mandatory withdrawal?

Rule: Violation of rules or law, capacity issue, atty is discharged, conflict of interest arises

Issue: When does an attorney have a permissive withdrawal?

Rule: No harm to client, Client persists on criminal / fraudulent action, Client using services to perpetrate crime or fraud, Fundamental disagreements, Failure to pay, Unreasonably difficult to do job, Other good cause

Quick Review of Lawyer-client relationship

• (1) the relationship is a consensual one - have close to unfettered discretion to refrain from the relationship

• (2) as a matter of law the relationship is deemed to have formed when the prospective client manifests the intent for the lawyer to provide legal services and one of two replies is forthcoming:

  • (a) the lawyer in return manifests consent to provide those services

  • (b) lawyer refrains from manifesting the lack of consent to provide those services, but leads the prospective client to believe that the lawyer will indeed provide those services

    • Despite the lawyer's failure to manifest consent to go forward - reasonable person in the shoes of the clint nevertheless believes the lawyer will provide those services

• (3) lawyers have some duties to a prospective client - where a relationship is never actually formed

  • Confidentiality

  • Taking care of any documents provided

• (4) initial meeting and conversation with a prospective client is one that requires a lawyer to be purposeful - deliberative - cautious - NOT casual

• (5) occasionally wise to elicit only those facts necessary to determine whether you the lawyer wishes to go forward the representation

  • Important in situations where the lawyer decides not to take up representation

• (6) it is appropriate for a lawyer and client once they have agreed to form the relationship - to together come to an understanding on what the objective of the representation will be

  • What the lawyer will do for the client

• (7) the engagement letter sets out many of the elements to which lawyer and client will agree to abide by

  • When you find you have reached a sufficient and supervisory status in your career that has you crafting engagement letters work to ensure that the document includes not just typical "stuff" - but anything you or the client believe is especially important in this particular distinctive representation

• (8) give serious thought into the status of your toolkit full of communication skills

  • Make a commitment to invest in the development and cultivation of those skills

  • Assess your listening aptitude - identify ways you can improve that aptitude

  • Assess the signals you send to others when they speak to you

  • How does your feedback make others feel after they share information - especially sensitive information to you

  • Do you cause others to feel valued, respected, cared for, etc.

• (9) law has things to say about how decision making authority in the relationship is allocated

  • Basic takeaway: law holds that whether to accept or reject settlement offers is for the client to decide

  • In a strong and trusting lawyer client relationship - the client seeks input from the lawyer - but the decision is ultimately left up to the client

  • Good reason: it is the CLIENTS matter

  • Criminal contest: plea related decisions

  • Take note of the Restatement Section on page 82 - the few matters that the law places outside the client's tasks - how the authority holds the competent client - has the authority to choose death even though the matter in which the issue are few in number

• (10) law has more than little to say when the lawyer is required to end the relationship and when the lawyer has discretion to enter the relationship

MRPC 1.6 (Confidentiality of Information)

• (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

• (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

  • (1) to prevent reasonably certain death or substantial bodily harm;

  • (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

  • (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

  • (4) to secure legal advice about the lawyer's compliance with these Rules;

  • (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; 

  • (6) to comply with other law or a court order; or

  • (7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 

• (c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

WI SCR 20:1.6

It is a must for 1 and 2

What are these dimensions, sources, and institutions?

• The dimensions are the affirmative duty to protect and the negative duty to not disclose or misuse

• Sources – ethical rules, law of evidence (cant be compelled during legal proceedings), agency law/fiduciary principals, contract law, state opinions

• Institutions – courts, bar authorities, law firms/employers, clients, professional orgs

What core policy undergirds the duty, accounting for both its existence and its importance?

Encouraging candor, Promoting effective representation, Protecting client autonomy and trust, Supporting the administration of justice

Of considerable importance to would-be Wisconsin lawyers: How does the Wisconsin version of 1.6 differ from that of most other jurisdictions?

• 1.

  • Wisconsin SCR 20:1.6(b) requires a lawyer to disclose information in certain circumstances, including when necessary to prevent a client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in

    • Death or substantial bodily harm.

    • Substantial injury to the financial interests or property of another.

  • This differs from the ABA Model Rule's corresponding exception, which generally permits disclosure rather than requiring it

• 2.

  • Threshold – for mandatory disclosures

    • ABA is reasonably certain

    • WI is reasonably likely

• 3. Wisconsin’s conflict of interest is broader

  • ABA Model Rule 1.6(b)(7): Focuses on conflicts arising from a lawyer's change of employment or changes in the composition or ownership of a firm.

  • Wisconsin SCR 20:1.6(c)(6): Is not limited to those situations. It can also encompass disclosures between lawyers in different firms and, in appropriate circumstances, disclosures to clients and former clients to detect and resolve conflicts.

Rule 1.16

• Discretionary termination: "good cause" - should your practice include even a little bit of litigation you will often need the court's permission to withdraw no matter how powerful your reasons for withdrawal are

• In the event the court declines your motion to withdraw - you remain in the lawyer client relationship

• Reminds a lawyer that all sorts of duties continue to flow even after a lawyer client relationship ends

• Cooperation you owe to successor counsel

• Continuing to honor the confidentiality principle in all of its dimensions - even protecting information in all of its forms that relate to the now ended relationship