Professional Responsibility

Week 4

• Exam is not yet scheduled. Probably 8/22AM.
• Handout 1: failure to comply with advertisement rules.
• Advertising rules: 7.4 is very specific. What you can tell the public.
• Handout 2: an actual specialist. Certified drunk driving defense specialist.
• Note that some of these rules will change by the time we graduate, so know what areas are potential violations, and where to look for them.
• 7.5 : firm names and letterheads can't be misleading.
• 8.2 : can't slander officers of the court or candidates thereto
• Multijurisdictional practice: you practice where you are admitted, and not in other states. Pro hac vice is the exception to this, of course. Usually requires you to hook up with someone in the local jurisdiction; this is a procedural requirement, and it is generally a boondoggle for the local attorney. See ABA 5.5(c)(1); the other subparagraphs have not necessarily been adopted in Wisconsin.
• Handout 3: article noting a state bar petition to bring WI's multijurisdictional requirements in line with the ABA (i.e., broadening the rules for who can appear in WI).
• Note that multijurisdictional regulation is in part a protectionist business strategy by the state bar; you can practice in an area of law that's new to you (subject to the requirement that you prepare yoursel), but not a jurisdiction. That's a criminal offense.
• 8.5: Which jurisdiction controls. You can be disciplined in two jurisdictions.
• Advertising on the Internet: there's the basic ABA rule about advertising. It is nearly impossible to comply with all states' advertising rules on the Internet. But the Internet is also the first place people look for lawyers.
• Multidisciplinary practice. Lawyers working in conjunction with other profession: you can't. You can practice in cahoots with yourself, if you have two credentials, but not others. Rule 5.4: the fee-sharing rule. A lawyer is supposed to give independant legal judgment.
• Pro bono work. The various ways it gets done. In WI, possibly judges don't appoint attorneys because we have a state PD. But 6.2 says if you are appointed, you can only weasel out of it for "good cause."
• Handout 4: revocation of license after overbilling the public defender.
• How do great criminals get such good lawyers? Maybe pro bono (with expectation of publicity). Sometimes maybe there are defense funds that are set up. Write to Professor Smith re this.
• History of Legal Services Corp. Formed in 1964 in Office of Economic Opportunity (part of Johnson's "war on poverty"). It quickly became a lobbying group because litigating single cases was less effective than trying to change the rules. And it got to be a very effective advocate for legal reform.
• Handout 5: legal services in WI. The states do still get some funding, and this is how it gets used in WI.
• Rule 6.3: the exhortation to paricipate in legal services close-to-pro-bono stuff. A lawyer may serve as an officer in these organizations, even if the organization serves clients with interests adverse to the lawyer's main work. Of course, you can't go too far with this: no material adverse effects.
• 6.4: Law reform activities. A lawyer may serve as the director, etc., of a law reform organization. 6.5: a lawyer who provides short-term limited legal services to a client for nonprofit isn't encumbered by the full burden of ongoing lawyer-client relationships.
• 6.1: you have the responsibility to provide services to those who can't pay; you should contribute 50 hours, but you're not required to do any.
• Handout 6: Wisbar text on pro bono work.

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• Note that there is no rule specifying how or when the lawyer-client relationship is established. It's implied that it gets established, but nothing is explicit. 90% of the time, there's a signed agreement, much of the time there's a statement about money.
• You don't have to accept a client; you don't have to explain why you are turning down a client.
• Remember Togstad: sometimes a lawyer-client relationship can sneak up on you. Also, note that you can't have, e.g., a divorce practice that only accepts women clients. Back with Togstad, though, the lawyer thought he had turned the case down. The court seems to have been looking for someone to pay her, and he was the only one left.
• The chat-room problem (4-1) is another example. There's not much case law (there's an ethics opinion by the DC bar) about the Internet. That opinion distinguishes between legal information (OK) and legal advice (not OK).
• Agency. What is it? When you become an attorney, you are the agent of the client (the principal). If the agent has apparent or actual authority, the client can be bound by the lawyer's actions. Implied and apparent authority are somewhat tricky. Apparent is the effect on the other party.
• Implied authority: in order to file a complaint, you'll have to state some facts that would otherwise be confidential.
• If a party with whom you're negotiating acts on the belief that you have authority for something, you and your client may be bound by it. Apparent authority will probably not be on the exam.
• Scope of representation: 1.2. Hard to know how far you can go in discussing the consequences of something (i.e., telling people it's not likely they'll get caught, or the penalty is not severe).
• Client is the boss about the objectives. Also, whether to settle, what plea to enter, whether to waive jury trial, and whether the client will testify. Comment 2 (to 1.2) shows some areas where it's not 100% clear who is in charge-- sometimes it's not clear what is an objective and what is a means. Is a lawsuit an objective, or a means? Note that WI is insurer- friendly about scope of representation.
• 1.18: duties to a prospective client. People, for example, "conflicting out" specific lawyers by telling them some stuff before they are approached by the other side for representation.
• The purpose of 1.18 is to facilitate open an honest communications between clients and lawyers.
• p. 218: the ten lawyering skills.
• The washing-machine problem: has the client been harrassed? was the deal unconscionable? Can the price just be negotiated?