Legal Attorney by ebj11165

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									Professional Responsibility
for the Legal Assistance
         Attorney
Lori Kroll, Esq.
Assistant Attorney General,
North Carolina Department
of Justice
Excerpts from COL Mark E. Sullivan,
USAR (Ret.) reprinted w/permission
Goals of Instruction
• Identify the Rules that Apply to the
  legal assistance attorney
• Understand Ethics applicable to:
  – Intake procedures
  – Supervisory Responsibilities
  – Ethical issues in
    • Family Law
    • Estate Planning
   [Problems from TJAGSA outline – ’97
   Professional Responsibility Seminar]
The Rules
• Coast Guard – Legal Rules of
  Professional Conduct
• Army – AR 27-26
• Navy & Marine Corps – JAGINST
  5803.1b
• Air Force – TJAG Policy 26
 (1 July 94)
Issue: Multi-
Jurisdictional Practice
• New MRPC 5.5 (August 12, 2002)
  allows attorneys to practice
  across state lines in which they
  are not licensed when
  authorized by federal law

• Comes w/a price regarding
  where the attorney can be
  disciplined
MR 8.5 “Long Arm”
Disciplinary Authority

• “Lawyer not admitted in this
  jurisdiction is also subject to the
  disciplinary authority of this
  jurisdiction”
• Lawyer practicing temporarily
  and permissibly in a host
  jurisdiction subject to
  disciplinary authority of the host
  jurisdiction
Rule 8.5
• Lawyer shall not be subject to
  discipline if the lawyer’s
  conduct conforms to the rules of
  a jurisdiction the lawyer -
• REASONABLY BELIEVES
• PREDOMINANT EFFECT of
  CONDUCT will occur
Choice of Law
• Rule: Rules of the jurisdiction in
  which the lawyer’s conduct
  occurred (or rule of tribunal)

• Exception: Unless the
  “predominant effect” of the
  conduct is in a different
  jurisdiction
Know State & Federal
Ethics Rules
• Rules of state(s) wherein
  licensed
• Rules of the state in which
  practicing
• Rules of the litigation forum
• Army Rules in AR 27-26 /
  corresponding military service
  ethics rules
Practice Tips
• Follow the most restrictive
  standard.
  – If a course of conduct “permitted”
    under one standard and
    “mandatory” under another,
    FOLLOW the MANDATORY
    STANDARD.
Resources to Use
• Local / State Bar (s)
• ABA
 - www.abanet.org/cpr/mjp-
   home.html
 - www.abanet.org/cpr/mjp/92_
   lawreview.pdf
Resources in North
Carolina
• NC State Bar, Ethics Division
  (919) 828-4620
  www.ncbar.com
Intake Screening
• Should you take on the client?

• Conflicts Screening

• Competent Referrals
Red Flags to Watch For


• “My other lawyer told me . . .”

• “Wanderer”

• Procrastinator
        Rule 4.2
• Communication with Person
  Represented by Counsel

 – NO communication w/a party
  known to be represented by
  another lawyer in the matter

 – UNLESS consent of the other
   lawyer or authorized by law
Don’t Assume Facts


• “ . . .although I don’t have a
  rental agreement, the rent was
  supposed to be $700 the first
  month, $800 afterwards and no
  utility costs ”
Ask for Documents
• Rental Agreement,
  contract, etc.

• Know the Law (and
  your limits!)

• “Template for
  Competent
  Practice”
-Mark Sullivan, COL
  USAR (Ret.)
Avoid Conflicts

• “My wife spoke w/your legal
  office about our divorce and I
  wanted to check if what she’s
  telling me is true”

• “Cocktail clients”
Conflicts of Interest
• Family Law matters
• Organizational matters
  – Small office where supervisor is
    also SJA
• Estate Planning issues
  – Husband/wife
  – Executor/heirs
MRPC 1.7
Conflict of Interest
• A lawyer shall not represent a
  client if directly adverse to
  another client, UNLESS
  – Representation will not adversely
    affect relationship w/other client

  – Each client consents after
    consultation
MR 1.18 Duties to
Prospective Client
(a)A person who discusses with a
   lawyer the possibility of
   forming a client-lawyer
   relationship with respect to a
   matter is a prospective client
(b) “shall not use or reveal info
   learned in the consultation”
   except as noted in Rule 1.9
MR 1.9 (c) 2
Former Clients
• Lawyer’s duty not to reveal info re:
  prior representation of a former
  client

“to the disadvantage of the former
  client except as these Rules would
  permit or require with respect to a
  client, or when the information has
  become generally known.”
MR 1.6 Confidentiality
• A lawyer shall not reveal
  information relating to the
  representation of a client unless
  - Client gives informed consent
  - Disclosure is impliedly
  authorized in order to carry out
  the representation
Confidentiality of Info
• Lawyer may reveal to extent
  reasonably believes necessary
  - Prevent reasonably certain
  death or substantial bodily harm
  - Secure legal advice about
  compliance w/Rules
  - Claim/defense in controversy
  between lawyer & client, etc.
Avoiding Conflicts
• Conflict detection procedures



• How to politely refer without
  “giving it away”
Practice Tips
• “Unable to assist at the present time
  but would be happy to provide a
  referral to a different military legal
  assistance office or the local state
  bar lawyer referral phone number”.

• Do NOT identify “CONFLICT” unless
  other client/former client has
  consented
Complex Issues
• Provide referral if beyond
  expertise
  – Consider whether you have the
    time to handle
• Seek assistance from other
  lawyers w/expertise,
  state/federal agencies (i.e., IRS),
  ABA LAMP
Referral Sources

NC State Bar Assoc. Lawyer
Referral Program
800-662-7660 or www.ncbar.org

Operation Enduring Lamp-
www.ABANET.org/legalservices/
lamp/home
Negligent Referral
Liability
• Courts divided
  on cause of
  action for
  negligent
  referral liability

• Make competent
  referrals
Supervisory
Responsibilities
• Ensure subordinates comply
  with Rules (Rules 5.1 & 5.3)
   Includes non-lawyers
   Training requirements
   Imputed Responsibility
     Order or Ratify
     Failure to Mitigate
Subordinate’s
Responsibilities
• Bound by the Rules
 Follow the Rules When Clear
 Unclear – Rely on Supervisor’s
  Judgment
  Independent Judgment
Practice Tips
• Follow Rules & seek assistance
  from supervisory attorney /
  Ethics point of contact

• Refer the client to new counsel

• Seek advice from state bar
Supervising Non-lawyers
• Common issue: Non-lawyers
  who give legal advice
• Watch out for unauthorized
  practice of law
• Enforce Confidentiality
Wills for SGT & Mrs.
Jones
• Ethical to represent both & do
  their wills?

• If not, what to do? If so, add’l
  actions necessary?
Rule 1.7 – multiple
clients if the attorney:
• Reasonably believes the
  representation will not be
  adversely affected
• And each client consents . . .
• After consultation re: PRO’s and
  CON’s of joint representation
 LAA & SSG Rough


• Interview w/ SSG Rough
• Domestic violence
• Custody to Sally, his wife –
  – $250/mo child support,
  – $100/mo. alimony
SSG Rough [cont’d]
• Sally moves in w/new boyfriend
  Jodie
• SSG Rough is MAD!
• Process of modification of court
  order . . .
• “Get even w/Sally & boyfriend”
• Kidnap Jill to live a “more
  wholesome life” w/his parents
1.6 Confidentiality
• Exception:
• LAA reasonably believes
  disclosure necessary
• To prevent certain death or
  substantial bodily harm
• “get even” = imminent death or
  substantial bodily harm??
What should LAA do?
• Confront client, seek to dissuade him
• Persuade about more reasonable
  course of action
• If disclosure, then only that much as
  reasonably necessary to avoid the
  harm
  – Warn wife & boyfriend,
  – But not tell police or commander???
LAA must use discretion
• Does LAA know that heinous
  purpose will be carried out?

• “reveal info to the extent the
  LAA reasonably believes
  necessary”
What about statement
re Jill
• Statement about intent to
  commit a crime?

• Substantial bodily harm?
 Chief of LA, CPT ABLE
• Discussion of previous
  appointment – what to do?
  – Report to Police
  – Withhold information?

• Prior representation of Sally by
  CPT Able, discussion of case
  with you
 Chief of LA [cont’d]
• Has the LAA acted unethically
  by seeing SSG Rough?
Rule 1.10 Imputed
disqualification
• Functional analysis
  –   Consider whether compromising:
  –   Preservation of Atty-client privilege
  –   Independent judgment
  –   Avoiding positions adverse to the
      client
What to Do
• Best: Discourage representation and
  refer to other LAA

• To Avoid Violation if representation:
  – Get client consent
  – Document consent in file
  – Take measures w/in office to preserve
    confidentiality for both clients
Chief of LA (cont’d)
• Did LAA act unethically by
  revealing confidence to
  supervisor?
Rule 1.6 Confidentiality
• May reveal info when necessary
  to carry out representation
• Implied authorization includes
  other lawyers, support w/in
  office
• Does NOT violate rule since LAA
  in need of help from supervisor
Chief of LA [cont’d]
• Could the LAA rely on your
  determination of the ethical
  issue and be protected ?
Chief of LA (cont’d)
• Rule 5.2 Subordinate attys. can
  rely on ethical judgment of
  supervisor, re: arguable ? Of PR
• Comments to 5.2: LAA must act
  ethically & not rely on wrong
  decision by supervisor
• LAA must also look at state
  rules
If LAA does not reveal,
what do you do?
• Rule 1.6 Mandatory disclosure
  if:
• Reasonably believe client will
  commit a crime
• Likely to result in death or
  substantial bodily harm
• If so – nondisclosure is violation
Rule 5.1 Supervisory
Responsibilities
• Supervisors may be liable IF:
  – Knew of unethical conduct
  – When consequences could be
    avoided/mitigated
  – Failed to take reasonable remedial
    action
  – Did not make reasonable efforts to
    ensure LAA’s conduct conformed
    to rules
Avoiding disciplinary
action

• Maintain records (check ethics rules
  of jurisdiction)
• Keep notes of calls to State bar
  Ethics hotlines
  – MRPC 1.15(f)(3-4)
  Keep notes/ “properties of client” (NC –
    6yrs)

• Communicate to client
  - Return original client documents
  - MRPC 1/16 (d)
Preamble to MRPC
In all professional functions a lawyer
  should be competent, prompt,
  diligent, and honest
. Maintain communication w/a client
  concerning the representation . .
. Keep in confidence information
  relating to representation of a client,
  except so far as disclosure is
  required or permitted
Thank You & Good Luck

Lori Kroll
NC Assistant Attorney General
Lkroll@NCDOJ.com

								
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