For The Defense, July 2010 - DRI Today

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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-
duct R. 1.4 cmt. As previously mentioned,attorneys have a duty to communicate withtheir clients. Attorneys must learn a client’sgoals and determine the appropriatemeans to accomplish those goals. The commentfurther states, “The client should havesufficient information to participate intelligentlyin decisions concerning the objectivesof the representation and the meansby which they are to be pursued, to theextent the client is willing and able to doso…. The guiding principle is that the lawyershould fulfill reasonable client expectationsfor information consistent with theduty to act in the client’s best interests, andthe client’s overall requirements as to thecharacter of representation.” Id. Failing toadequately communicate with a client canmake an attorney vulnerable to a legal malpracticeclaim.Model Rule 1.6Model Rule 1.6, paragraph (a) states, inpart, “A lawyer shall not reveal informationrelating to the representation of a clientunless the client gives informed consent…”The comment to this rule states that therule governs the disclosure by a lawyer ofinformation related to the representation ofa client during the lawyer’s representationof the client, and “A fundamental principlein the client- lawyer relationship is that, inthe absence of the client’s informed consent,the lawyer must not reveal informationrelating to the representation…. Thiscontributes to the trust that is the hallmarkof the client- lawyer relationship.” ModelRules of Prof’l Conduct R. 1.6 cmt.This confidentiality originates with theattorney- client privilege, the work productdoctrine, and the rule of confidentialityestablished in professional ethics.Of note, Model Rule 1.6 becomes a potentialsource of contention when representingmultiple defendants. Attorney- clientprivilege does not protect communicationsbetween the defendants and an attorneywhen the attorney jointly representsthem. Therefore, as previously stated, ifdefendant 1 discusses something with theattorney, then the attorney can, and sometimesmust, disclose that to defendant 2,and the reverse is true.Model Rule 1.7Model Rule 1.7(a) states, “Except as providedin paragraph (b), a lawyer shall notrepresent a client if the representation involvesa concurrent conflict of interest. Aconcurrent conflict of interest exists if: (1)the representation of one client will be directlyadverse to another client; or (2) thereis a significant risk that the representationof one or more clients will be materiallylimited by the lawyer’s responsibilities toanother client, a former client or a third personor by a personal interest of the lawyer.”Model Rule 1.7(b) states, “Notwithstandingthe existence of a concurrent conflict ofinterest under paragraph (a), a lawyer mayrepresent a client if: (1) the lawyer reasonablybelieves that the lawyer will be able toprovide competent and diligent representationto each affected client; (2) the representationis not prohibited by law; (3) therepresentation does not involve the assertionof a claim by one client against anotherclient represented by the lawyer in the samelitigation or other proceeding before a tribunal;and (4) each affected client givesinformed consent, confirmed in writing.”The comment to Model Rule 1.7 is extensiveand warrants independent review byan attorney. The comment points out thatconflicts of interest may exist before an attorneyundertakes representation, in whichcase the representation must not ensue unlessan attorney obtains informed consent,but it may also arise after representation hasbeen undertaken, in which case an attorneyusually must withdraw from representationunless he or she obtains informed consent.If conflicts of interest arise after representationhas been undertaken, the questionof whether a lawyer may continue to representany of the clients is determined bythe attorney’s ability to comply with dutiesowed to a former client and ability to representthe remaining clients, given the dutiesowed to the former client. See ModelRules of Prof’l Conduct R. 1.9.The comment to Model Rule 1.7 alsodiscusses prohibited representations.Although attorneys can overcome someconflicts by obtaining client consent, someconflicts cannot be overcome by attorneys.“Consentability” is “typically determinedby considering whether the interestsof the clients will be adequately protectedif the clients are permitted to give theirinformed consent to representation burdenedby a conflict of interest.” ModelRules of Prof’l Conduct R. 1.7 cmt.Informed consent is defined under ModelRule 1.0(e) as “the agreement by a personto a proposed course of conduct after thelawyer has communicated adequate informationand explanation about the materialrisks of and reasonably available alternativesto the proposed course of conduct.”When an attorney will represent multipleclients in a single matter, the informationcommunicated to clients must include theimplications of the common representation,including possible effects on loyalty, confidentiality,the attorney- client privilege, andthe advantages and risks involved. ModelRules of Prof’l Conduct R. 1.7 cmt. Infurther discussing the representation ofmultiple parties, the comment to ModelRule 1.7 advises, “In considering whetherto represent multiple clients in the samematter, a lawyer should be mindful that ifthe common representation fails becausethe potentially adverse interests cannot bereconciled, the result can be additional cost,embarrassment and recrimination.”The comment to ABA Model Rule 1.7 alsodiscusses the importance of obtaining writtenconsent from clients. It states, in part,“The requirement of a writing does not supplantthe need in most cases for the lawyerto talk with the client, to explain the risksand advantages, if any, of representationburdened with a conflict of interest, as wellas reasonably available alternatives, and toafford the client a reasonable opportunityto consider the risks and alternatives andto raise questions and concerns. Rather, thewriting is required in order to impress uponclients the seriousness of the decision theclient is being asked to make and to avoiddisputes or ambiguities that might later occurin the absence of a writing.”Model Rule 1.8Model Rule 1.8(g) states, “A lawyer whorepresents two or more clients shall notparticipate in making an aggregate settlementof the claims of or against the clients,or in a criminal case an aggregated agreementas to guilty or nolo contendere pleas,unless each client gives informed consent,in a writing signed by the client. Thelawyer’s disclosure shall include the existenceand nature of all the claims or pleasinvolved and of the participation of eachperson in the settlement.”For The Defense n July 2010 n 81
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DRI—The Voiceof the Defense BarVo
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IT’S EASIER TOEND YOUR DAYWHEN YO
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CalendarUpcoming eventsof interest
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