PENNSYLVANIA PROFESSIONAL RESPONSIBILITY PROFESSOR MARK YOCHUM DUQUESNE UNIVERSITY SCHOOL OF LAW

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1 PENNSYLVANIA PROFESSIONAL RESPONSIBILITY PROFESSOR MARK YOCHUM DUQUESNE UNIVERSITY SCHOOL OF LAW CHAPTER 1: INTRODUCTION Exam Tip 1: On the PA bar Exam, 1 part f 1 fur-part questin is devted t PR, abut 5% f pints and usually straightfrward material and testing. Pennsylvania Surces f Law - enfrceable and aspiratin rules PA Rules f Prfessinal Cnduct the bulk f material tested Rules f Discipline Admissin Rules Qualificatins t practice law Judicial Cnduct Rules f Civility Rules fr Prfessinal Cnduct are fr discipline (either disbarment r, as termed in PA, lngterm suspensin) Vilatins f rules result in discipline but d nt equal PA is generally a Mdel-Rules jurisdictin-- ABA Mdel Rules frm basis fr mst PA rules f PR, with sme ntable differences. A. ATTORNEY-CLIENT RELATIONSHIP 1. Creatin f Attrney-Client Relatinship Example 1: Trt Victim cnsults Attrney A wh tells the victim he has n case. There was n written agreement and n fee was paid. The existence f an attrney-client relatinship IS NOT CONTRACTUAL. A fee r agreement is NOT necessary t frm that relatinship. The standard is the test. 2. Fees Example 2: Creditr seeks recvery n a $100,000 nte. Lawyer knws that the wrk is the same as seeking recvery n a $10,000 nte. Can Lawyer charge mre?

2 Lawyers are nly allwed t charge. Fees are subject t curt review. The fllwing are the factrs used t determine reasnableness f fees charged: Greater the amunt in cntrversy= mre risk, mre fee Cnflicts f interest: preclude a superstar frm wrking against him KEY PA REQUIREMENT: All fee agreements MUST be in (nt just cntingent fee agreements) this is a PA variant frm ABA Rules Only exceptin: relatinships Cntingent Fees : Agreements must be in Nt just fr trts Never can have cntingent fees fr and matters Always must have including a calculatin methdlgy f hw fees derived. (Fees and expenses) Retainers prepayment fr a lawyer s services Example 3: Lawyer receives $10,000 frm Client t be drawn dwn as Lawyer perfrms his services. The key questin in retainer questins is, In PA, all legal fees must be placed in an (trust) and unearned fees must be returned. All advanced t the lawyer must als be placed in escrw. Accunts f the lawyer and clients must be PA is an IOLTA jurisdictin. IOLTA is an acrnym fr: Interests in Client as Fee (in lieu f payments) Tw different ways: 1. Lawyer takes stck in Client Crpratin instead f a cash fee 2. Lawyer takes a mrtgage n client s prperty t secure payment f a cash fee Interest in a client = Themis Bar Review, LLC PA Prfessinal Respnsibility

3 Business transactins with clients r acquisitins f an wnership r security interest in client s prperty have these new requirements: a) Terms must be in b) They must and c) Attrney must advise client in writing f the f independent cunsel t review arrangement. d) It requires in writing, signed by the client. Fee Sharing PA law differs frm ABA Rules Example 4: Lawyer #1 refers Client t Lawyer #2. Lawyer #2 kicks-back a prtin f his fee t Lawyer #1. Pennsylvania is a free fee sharing jurisdictin. Overall fee is Kickback must be t client and client cnsents Fee sharing with (i.e., runners, PIs) in PA is nt allwed. Legal fees may be shared with lawyers. Sale f a Law Practice Stp practicing! Sell yur whle practice, and sell it t ne lawyer r law firm. CHAPTER 2: WITHDRAWAL A. Mandatry Withdrawal Cextensive with attrney-client relatinship: Attrney cannt take client cases where yu are ging t have t quit. Example 5: that client. If a new client wuld create a cnflict f interest, yu cannt take Fllwing situatins require mandatry withdrawal: 1. Cnflict f interest 2. Attrney impairment (i.e., drug and alchl abuse) 3. Being discharged/fired Client has an t fire attrney with penalties fr discharge. Attrney still entitled t fees PA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 3

4 Nte 1: If lawyer discharged fr, the cntract is breached and lawyer will nt be paid fees. Cautin: Withdrawal, when curt prcesses have cmmenced, can nly be accmplished by leave f curt. B. Permissive Withdrawal 1. : Attrney can quit even if the client bjects if n harm dne t the client. Example 6: Client cmes in and gives Attrney retainer. Attrney has regrets the secnd day and returns the mney. This is permissive withdrawal. Example 7: Fire a client t get a better client. 2. Permissive harmful withdrawal Reasnable belief by lawyer that the client is pursuing r fraud Example 8: Client is using a cntract yu wrte t perpetrate a crime Client s actin is r imprudent- the Nazi client Unreasnable burden Nte 2: A bad riginal fee arrangement is nt enugh Failure t pay ne s bligatin t the lawyer Gd cause REMEMBER: When in the curt prcess, an attrney must seek leave f the curt t withdraw, even if the client is nt paying fees. C. After Withdrawal: Terminatin When the representatin is ver, either by cmpletin r by withdrawal, attrney must d the fllwing: 1. Return all f client s and 2. The allws lawyer t hld client s prperty if lawyer is wed a fee, but lawyer cannt embarrass the client r sell the retaining lien. Prceeds frm litigatin Example 9: Lawyer wins suit fr Client and the prceeds f the judgment are placed in Client s escrw accunt t be distributed 1/3 t the lawyer, 2/3 t the client. Client s medical insurer calls Lawyer and asserts a claim t which they are entitled. Hw d yu deal with such third party claims? Themis Bar Review, LLC PA Prfessinal Respnsibility

5 CHAPTER 3: SCOPE OF REPRESENTATION Lawyers and Clients bth/each can the scpe f representatin: Lawyer nly handles certain types f matters, e.g., tax Scpe f representatin cannt be s limited as t create. Example 10: A client charged with many crimes will nt want a lawyer wh chses nly a few crimes t represent. Client is the bss. Settlement ffers must be cmmunicated t the client cncerning ffers. (Example: nt less than a millin) In criminal matters: special rules fr criminal defendant/client: Testimny by client, right t jury trial and pleas, are decisins made by client nly and must be cmmunicated t the client. A. Clients with Disabilities Clients with Attrney must treat them thus: Maintain rdinary relatinship Seek appintment f guardian, if necessary, if impairment is s severe Permissive revelatin f disability as is t prtect client Attrney cannt cunsel r assist client w/ activity lawyer knws t be criminal r fraudulent. B. Vicarius Liability f Attrneys 1. Basic Rules (r similar managers) must make reasnable effrts that the lawyers and all nn-prfessinal emplyees cmply with the Rules f Prfessinal Cnduct. Example 11: It wuld be a vilatin fr a firm t have n system in place t check cnflicts in place, even if there were n cnflicts present. Firms includes crprate staff, DA s ffice Supervisry attrneys have additinal rule: are fr vilatins f subrdinate attrneys and nn-prfessinals if they rder, ratify, r (after learning f a vilatin) fail t take remedial actin in cnnectin with a vilatin. Example 12: Bss says file a frivlus cmplaint. Example 13: Bss lks at a frivlus cmplaint and says gd jb! Example 14: Bss lks at a frivlus cmplaint and decides t d nthing. PA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 5

6 cannt defend an ethics case by saying I was fllwing rders if supervising bss made a reasnable decisin, the subrdinate is nt liable; therwise, cannt fllw unethical, bad directins. Squeal Rule: lawyer s duty t reprt knwn vilatins f PR Rules by anther lawyer relating t hnesty, trustwrthiness, and fitness t practice law Lawyer can be sanctined and be liable fr failure t infrm disciplinary bard abut an ffending lawyer's cnduct. (Suit against an attrney fr stealing clients funds) CHAPTER 4: PROFESSIONAL COMPETENCE A. Malpractice vs Discipline Malpractice nt same as discipline; discipline is nt same as malpractice Discipline des nt require while malpractice must have damage Discipline des nt create malpractice Malpractice is an rdinary trt requiring prepnderance f evidence Fr discipline (ethics vilatin) the standard is clear and cnvincing Vilatins f the Rules f Prf. Cnduct d nt set up cause f actin by themselves! Must be duty, breach, cause, and damage Duty t decline: Lawyer must decline if nt cmpetent r cannt becme cmpetent withut Diligence: If yu cannt be diligent, withdraw. Example 15: T busy, t impaired B. Duty f Cnfidentiality The key: All learned by the lawyer relating t the representatin must be kept in cnfidence by the lawyer (even if the rest f the wrld knws it!) Nte 3: This includes the identity f yur client. The attrney-client privilege is different and is: Only cmmunicatins (i.e., speech and writings) Must be given in Must be kept cnfidential 3rd parties break attrney-client privilege Revelatin f the infrmatin by attrney r client destrys the privilege Example 16: The smking gun used t sht smene is nt privileged, but the are Themis Bar Review, LLC PA Prfessinal Respnsibility

7 A curt may rder a lawyer t reveal infrmatin prtected under ethical duty f cnfidentiality but cannt rder revelatin f material subject t the C. Permissive Disclsures Cnsent by the client cnsent) Implied by representatin, mst cmmn is suing smene fr a client T prevent r substantial bdily injury, even if it has nthing t d with client matter Example 17: Tnight I m putting my business partner in the dumpster. T prevent client s criminal act that the lawyer believes likely t result in substantial harm. Example 18: Cmpany treasurer is embezzling. T prevent r mitigate client s crime r fraud in which lawyer s services are used Cntrversies with clients r disciplinary prceedings, e.g., fee disputes, typically lk fr client t cuntersue fr Curt rders Cnflicts checks: T determine, a lawyer will have t reveal certain infrmatin N cmprmise f privilege N prejudice t client D. Eternal Duratin f Cnfidentiality Duty Rule 1.6: It lasts frever (even survives the death f the lawyer and the client.) CHAPTER 5: CONFLICTS OF INTEREST Cnflicts f interest are trial curt enfrced rule and may result in: Disqualificatin frm representatin Disciplinary sanctins A cnflict arises where there is: 1. Direct adversity: yu cannt represent bth parties Nt waivable 2. Material limitatin n the lawyers representatin Can cme frm current r frmer clients r third parties r lawyer s wn interest. 3. Waivable cnflicts Required client s PA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 7

8 PA des nt fllw ABA Mdel Rule with client cnsent. PA says waiver des nt need t be in writing, while ABA des require it in writing Lawyer must have a representatin will nt be adversely affected. Infrmed cnsent: affected clients must waive the cnflict. Particularly relevant with jint representatin. Frmer Clients Cnflicts: (Objective Test) Yu are nt allwed t represent smene against a frmer client in a matter. Example 19: Gulf Oil v. Westinghuse- Westinghuse sued Gulf Oil fr price fixing. Gulf Oil emplyed previusly a lawyer wh had wrked in the acquisitin f leases. That lawyer mves t Chicag and jins a large firm. Westinghuse seeks t emply that firm t represent it against Gulf. 3 Questins asked (Gulf Oil test): 1. What was the scpe f the prir representatin? 2. Culd lawyer have learned infrmatin in cnnectins with that representatin? 3. Wuld that infrmatin be useful in this litigatin? Key: Infrmatin. If the lawyer culd have learned infrmatin that culd have been useful, the matters are related. All tested hypthetically, n testimny is given as t what the lawyer actually learned r tld. If the three questins are answered psitively, it is an. Cnflicts arising frm the persnal interest f lawyer: Business dealings r acquisitin f an interest in client r client s prperty Wills/Gifts: Cannt prepare a will in which the lawyer is interested N acquisitin f stry rights until the representatin f client ends Example 20: OJ Simpsn Prprietary interests in clients: N t clients. N advances t clients except fr csts (Exceptin: indigents) N with clients (absent pre-existing relatinship), a disqualificatin, nt whle firm Third Party Interference (usually the insurance cmpany) Key: The client is the The third-party payr is nt the client. If there are third parties paying fr the representatin, the client must be infrmed. Agreements attempting t limit malpractice recvery are Themis Bar Review, LLC PA Prfessinal Respnsibility

9 Example 21: Liquidated damages and representatin agreements CHAPTER 6: CONFLICTS, CONT D A. Imputed Disqualificatin: The Ctie Rule If ne lawyer is in cnflict with a representatin, n lawyer in the firm may represent the client unless: The client cnsents (fat chance) The cnflict is based upn the lawyer s persnal interest and is nt materially limiting There is n appearance f imprpriety rule, must be actual imprpriety Prblem: Inhibited lawyer mvement between firms. A lawyer cming in t the firm likely has a bundle f cnflicts. The rule here is the same as fr nn-prfessinals (paralegals). 1. Screening An lawyer becming assciated with a firm creating the cnflict The lawyer is immediately screened n the matter The lawyer cannt cmmunicate any infrmatin learned abut prir representatin t any ne in firm and The lawyer is barred frm participatin in any fees assciated with that representatin The affected client must be ntified and allwed t mnitr the screening Applies t nn-prfessinal emplyees as well when entering a new firm Frmer client has n grunds t bject as lng as the screen is valid. Exam Tip 2: The screening has t be immediate. a. Special Relatinships Frmer gvernment emplyees, judicial clerkships, etc Affrded the pprtunity fr screening 2. Organizatin as the client Lawyer represents the rganizatin (like a crpratin) nt the The lawyer nt nly represents the entity, but als the cntrl grup. The grup f principal managers and decisin-makers f an rganizatin wh are entitled t attrney-client privilege. PA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 9

10 Exam Tip 3: Questins here tend t be pen-ended and ask yu t list the steps necessary when the lawyer knws that there is a vilatin f law which may be imputed t the entity. If a lawyer knws f a vilatin f law that may be imputed t the rganizatin and is likely t result in substantial injury, the lawyer shuld take measures including, referring t higher rganizatinal authrity. If the rganizatin des nt crrect the matter, the lawyer may. Financial harm frequently allws fr permissive revelatin. Nisy withdrawal: The silent activity actually speaks vlumes May cmmunicate with management the reasns fr quitting 3. Ptential Clients Example 22: I m ging t divrce my wife. I dn t want my wife t get the best divrce lawyer in twn, s I apprach him and tell him my stry. At the cnclusin, I dn t hire him. Traditinally, the cmmunicatin f infrmatin by a putative client disqualified the lawyer frm later representing the ther party. PA Rules and the ABA Mdel permit screening here. When the putative client cnsults with the lawyer, nly that individual lawyer is disqualified. That lawyer can be screened. CHAPTER 7: ADVERTISING, ZEALOUS ADVOCACY A. Advertising 1. Cmmunicatin All frms f are cnsidered advertising under PA Rules. Must nt be and misleading Unverifiable self-prmtin Exam Tip 4: PA is unlikely t test n its very detailed advertising rules. Recrd keeping requirements fr past ads and pricing N celebrity endrsements N actrs psing as the lawyers r clients Must disclse lcatin f ffices Fields f practice: in PA, lawyer cannt advertise t be a in an area f law unless certified as such by a particular educatinal bdy (e.g., patent r admiralty law). Advertising an area f practice is OK. 2. Persnal Cntact Real-time direct cntact t slicit business is Themis Bar Review, LLC PA Prfessinal Respnsibility

11 Exceptins: ther lawyers, family members, pre-existing legal relatinships Cntact is nly a vilatin if fr pecuniary gain, s persnal slicitatin is OK as is vlunteering. General mailings, nn-real time electrnic cmmunicatins, and targeted direct-mail are permissible unless the lawyer knws that the state f the recipient wuld make him incapable f a reasned chice. B. Zealus Advcacy Frivlus claims by clients: A lawyer may nt assert r defend a claim that is frivlus absent a t extend the law. Reliance n a client s factual assertins may be permissible but it requires a int facts presented by client. Develpment f facts may make the actin frivlus and attrney must withdraw 1. Candr t the Tribunal Tribunals include administrative agencies and curts. Lawyers may nt knwingly: Make false statements as t law r fact Fail t disclse authrity (Case law that s bad ) Offer evidence knws t be false. Lawyer may t ffer evidence, except fr criminal defendant s testimny, he reasnably believes is false. 2. Remedial Measures When a lawyer knws evidence submitted by client was false r, typically, when perjury has been cmmitted r is abut t be cmmitted: 3. Tampering He must attempt t dissuade the witness frm lying Permissive revelatin: the lawyer may reveal the matter t the curt and can seek t withdraw Nte 4: Withdrawal will require curt permissin, which will be if it is a criminal matter. The trial-by-narrative: put the client n the stand and instruct him t tell his stry withut bjectin r crrectin Cannt tamper with evidence r with witnesses N ex parte cmmunicatins with: judges, jurrs, the ptential jurrs (the venire) The ABA and PA Rules include pending and impending litigatin. PA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 11

12 Out-f-curt cmmunicatins, especially talking t the if it wuld have a likelihd f prejudicing the prceeding are frbidden. EXCEPTION: A Lawyer may respnd in the media t prtect a client frm undue publicity nt initiated by the client r lawyer. (The DA spke I will respnd). Hwever, cmmenting n the veracity f witness is a vilatin f this media rule. Prsecutrs are special and have bligatins beynd the usual attrney Prbable cause Prsecutr s cnfidentiality arrangement with state desn t include exculpatry infrmatin and she must turn it ver CHAPTER 8: ADMISSION TO PRACTICE, JUDICIAL ETHICS A. Admissin t Practice 1. Character and fitness Criminal activity Primary cncern f the Bar Examiners is past cnduct Disclsure is key. Law schl cnduct may be used as a disqualifying fact. 2. Out-f-State Lawyers may practice in PA n a basis if: Pr hac vice admissin Can temprarily practice in PA fr alternative dispute reslutin Assciatin with In PA, lcal cunsel must really wrk (different frm fee sharing) Cmmercial lawyers may cme in if they are wrking fr a client frm anther jurisdictin where the attrney is licensed (hme state qualificatin is key) 3. Pwer t regulate PA Supreme Curt has authrity t regulate practice. If legislature enacts a statute regulating lawyer practice, that statute is under PA law. Example 23: Lbbying Act 4. Unauthrized practice f law Any activity with legal significance r the develpment f facts with legal imprt, it is the practice f law. Real estate brkers in real prperty tax appeals Themis Bar Review, LLC PA Prfessinal Respnsibility

13 Insurance agents in wrker s cmpensatin cases Injunctin/lss f fees Divrce mills - failure t supervise nn-prfessinals B. JUDICIAL ETHICS Areas f cncern fr judges ethics: 1. N appearance f Example 24: Judge attempting t use ffice t gain influence, get ut f traffic ticket 2. N cmmunicatins. Lawyers cannt aid judges in ex parte cmmunicatins. 3. N public n prceedings 4. Recusal ccurs where there is bias r financial interest 5. Rule f necessity- if every judge is recused, there still needs t be ne 6. N plitics An issue because in PA every judge is elected Judicial candidates: annunce but nt cmmit - annunce with respect t issues, but nt cmmit with respect t parties GOOD LUCK! [END OF HANDOUT] PA Prfessinal Respnsibility 2016 Themis Bar Review, LLC 13

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