Professional Responsibility

Week of 6-30-08

The grading curve. Teachers are bound to follow a curve.
The 10 lawyering skills: interesting suggestion to self-identify weaknesses and be proactive about them. Note that we'll be better prepared to do research, etc., than some of our supervisors. Knowing the facts is the key to speaking effectively: the best litigators are not necessarily the best orators. Mastering the mechanics of a trial is also key (including evidence).
p.225: what can happen to you if clients are dissatisfied. Complaining to lawyer, non-payment, complaining to bar authority, malpractice suits, filing of appeals.
A large percentage of claims are "closed without action," which means that there's not a substantial basis for proceding.
Is it ever OK to lie? There are times when the rules may actually require it SCR 20:4.1 comment 2. What you tell people about what you know can be a source of conflict: not only can you not tell some stuff, but sometimes you are forbidden to tell the truth (a lot of confidentiality concerns end up this way). You often need to withold information, or present it selectively, or in the best light.
1.4: Inadequate communication leads to the most complaints.
Jones v. Barnes : is failing to brief all issues, even though the client requests it, per se ineffective counsel? No, says SCOTUS. A lawyer can selectively focus the court's attention. Explaining strategy to client is important, though, including helping the client perceive the true objective. Note that the objectives of some trials is just to have one's day in court and to state one's side. So what was the objective in Barnes? To get acquitted, or to state these points of argument? Interesting to contemplate.
The Unabomber case (4-5). Interesting that they bother to anonymize this. What is diminished capacity? How does a lawyer determine whether a person is so far gone that his wishes should be ignored?
Rule 1.14: Diminished capacity. Notes in the book. Getting guardians, etc., is not to be done lightly. Balancing between protecting and not disrespecting.
Handout #1: additional info about the vinyl windows problem (4-6). Note that even though a guardian might be the best idea at this point, you're still obligated to talk to her about it.
Handout #2: the real background.
4-7 is less complicated than the vinyl windows one. Do I represent the interests of society or of this client? Probably you are supposed to go with the client, and let the chips fall. You might wonder about diminished capacity, but is he at substantial risk of harm (as the rule requires)? Note that a judge will be the one making the determination of whether he will be committed.
Minority: a simple and arbitrary law which is often wrong. But there you have it. Child custody and delinquency cases are the most likely encounter: treat them, as much as possible, as regular clients.
WI has a rule about Guardians ad litem. If the guardian is appointed for a child, the lawyer protects the best interests of the child (as determined by lawyer), regardless of conflict with the child's true interests. Rule 4.5.
The Guardian ad litem relationship is parternalistic, and subject to cultural and class biases, but it's better than nothing, maybe.
1.16 : terminating relationships. Most of the time it'll be obvious when you're terminating a relationship. Sometimes you need to make it clear (i.e., if you keep sending the client updates/newsletters, etc.). Sometimes relationships don't end when we think they do... Note also rule 1.9, about duties to former clients (you do have duties to former clients, the greatest of which is probably confidentiality). But back on 1.16.