For The Defense, July 2010 - DRI Today

P R O F E S S I O N A L L I A B I L I T YA lawyer has a duty tocommunicate with his orher client and breachingthat duty creates asituation in which a legalmalpractice suit may arise.necessitates determining whether the injurywas a natural and probable consequencethat should have been foreseen.Hedrick v. Tabbert, 722 N.E.2d 1269, 1273(Ind. Ct. App. 2000) (citing Johnson v. Owens,639 N.E. 2d, 1016, 1023 (Ind. Ct. App.1994)). Establishing legal malpractice alsorequires a reasonable connection betweenan attorney’s conduct and the negative consequencesthat a plaintiff suffered. Id. (citingTipmont Rural Elec. Membership Corp.v. Fischer, 697 N.E.2d 83, 87 (Ind. Ct. App.1998)). If a reasonably unforeseeable, intervening,independent, force brought aboutthe harmful consequences, the interveningcause may serve to break the chain of causation,curtailing an attorney’s liability. Id.(citing Best Homes, Inc. v. Rainwater, 714N.E.2d 702, 706 (Ind. Ct. App. 1999)).Avoiding Legal MalpracticeWith the legal malpractice framework inmind, the question becomes how an attorneycan avoid an accusation of legal malpracticealtogether.Model Rules of Professional ConductIn addition to knowing the substantivelaw in your practice area and acting withdiligence, the American Bar AssociationModel Rules of Professional Conduct provideguidance on acceptable legal practice.The Model Rules of Professional Conduct,adopted by the ABA House of Delegates in1983, serve as the model for the ethics rulesof most states. The rules provide informationon how to practice ethically when representingmultiple defendants. Althoughthis article will discuss Model Rules ofProfessional Conduct and the associated80 n For The Defense n July 2010Comments, it is important that each attorneybecome familiar with his or her ownstate rules and should abide by those, asrequired.The primary Model Rules related torepresenting multiple defendants are: 1.2,“Scope of Representation and Allocation ofAuthority Between Client and Lawyer”; 1.4,“Communication”; 1.6, “Confidentiality ofInformation”; 1.7, “Conflict of Interest: CurrentClients”; 1.8, “Conflict of Interest: CurrentClients: Specific Rules”; 1.9, “Duties toFormer Clients”; and 1.16, “Declining orTerminating Representation.”Model Rule 1.2Model Rule 1.2(a) states, in part, “Subject toparagraphs (c) and (d), a lawyer shall abideby a client’s decisions concerning the objectivesof representation and, as required byModel Rule 1.4, shall consult with the clientas to the means by which they are to bepursued. A lawyer may take such action onbehalf of the client as is impliedly authorizedto carry out the representation. Alawyer shall abide by a client’s decisionwhether to settle a matter.”The comment to this rule explains thatthe purpose of paragraph (a) is to assign tothe client the ultimate authority to “determinethe purposes to be served by legalrepresentation, within the limits imposedby law and the lawyer’s professional obligations.”Model Rules of Prof’l ConductR. 1.2 cmt. For example, a client mustdecide whether to settle a civil matter. Toensure that a client’s purposes are served,you must communicate with the client sothat you understand the client’s goals. Alawyer has a duty to communicate with hisor her client and breaching that duty createsa situation in which a legal malpracticesuit may arise. Notably, the Model Rulesdo not recommend how a lawyer wouldresolve disagreements that may arise ifa lawyer and a client disagree about howbest to accomplish the client’s objectives;however, an attorney can always withdrawfrom or a client can discharge an attorneyfrom representation. See Model Rules ofProf’l Conduct R. 1.16.Model Rule 1.2(c) states, “A lawyer maylimit the scope of the representation ifthe limitation is reasonable under the circumstancesand the client gives informedconsent.”The comment addressing Model Rule1.2(c) explains that an attorney and clientmay agree to limit the scope of services thatthe attorney will provide. The commentstates, “When a lawyer has been retainedby an insurer to represent an insured, forexample, the representation may be limitedto matters related to the insurance coverage.”Model Rules of Prof’l ConductR. 1.2 cmt. Limited representation maybe appropriate when a client has limitedobjectives in seeking representation or limitedmeans with which to accomplish theobjectives. Importantly, however, the limitationmust be reasonable under the circumstances,and an attorney must secureinformed consent. It is also vital that anagreement does not exempt a lawyer fromthe duty to provide competent representation.Assuming a limited scope of representationthat is reasonable, an attorneyshould strongly consider obtaining writteninformed consent regarding this scopeof representation. Among other benefits, allparties can use this document as a sourceof information throughout litigation, aswell as an evidentiary source for an attorneyif a legal malpractice claim is initiated.Model Rule 1.4Model Rule 1.4(a) states, “A lawyer shall:(1) promptly inform the client of any decisionor circumstance with respect to whichthe client’s informed consent, as defined inRule 1.0(e), is required by these Rules; (2)reasonably consult with the client aboutthe means by which the client’s objectivesare to be accomplished; (3) keep the clientreasonably informed about the status ofthe matter; (4) promptly comply with reasonablerequests for information; and (5)consult with the client about any relevantlimitation on the lawyer’s conduct whenthe lawyer knows that the client expectsassistance not permitted by the Rules ofProfessional Conduct or other law.” Paragraph(b) states, “A lawyer shall explaina matter to the extent reasonably necessaryto permit the client to make informeddecisions regarding the representation.”Model Rules of Prof’l Conduct R. 1.4.The comment to this rule states that“reasonable communication between thelawyer and the client is necessary for theclient to effectively participate in the representation.”Model Rules of Prof’l Con-