Michael Sean Quinn, Ph.D, J.D., Etc., Author
Law Office of Quinn and Quinn
1300 West Lynn #208
Austin, Texas 78703
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(Resumes: www.michaelseanquinn.com)
Commandment Four Published as a Blog on January 16, 2015
Commandment Four Published as a Blog on January 16, 2015
This Preface is attached to each of the parts, oppressive though that may appear.This blog is part (1/11th) of a collection called the ELEVEN COMMANDMENTS OF LEGAL ETHICS. There are 11 separate mini-blogs; they need not be read in any particular order. I have tried to keep them “together,” but cyber-success is not an inevitability when I am around. An early version* of it was published a decade or so ago. Before that very short speech versions were used as part of a day long CLE course ordered by the Supreme Court of Texas for new lawyers. Later for several years it was used in other CE or CLE contexts. All of this can be found on my Resume which is linked to (attached to) my website. www.michaelseanquinn.com. There are video versions somewhere in the cyber-sphere, and if not there in the cyber-world or in c-space and/or in the so-called “real world,” for sale. As old as it is, the collection–whether in print, in the “blogus-sphere”on a something like a motion picture–is not really out of date, except there are not explicit references it to legal ethics and the cyber world. At the same the obligations of the lawyers have not changed much, except now there is a new dimension to our confidentiality obligations and and out obligations to keep up to date. The “code numbers” are sometimes to the ABA Model Rules and sometimes to the Texas Rules of Professional Conduct. (*The term “version” means what it says: wordings change and ideas shift, tough the latter very little. Earlier version can be found entered on July 2, 2012 and on March 12, 2014.) The drafts of this manuscript were prepared were prepared somewhere between several and a lot of time. Consequently, the outline form is substantially than perfect down the left hand ledge.
These disquisitions are revisions something I wrote at least several years ago. First editions of these essays were begun some time ago. Somehow their print got locked in, to some degree, so some parts of the essays were thrown out of kilter and can’t be made right today. This is particularly true along the left margins of some of the essays.
Some of the Blogs will contain supplementary additions. Those added after January 1, 2015 will probably be dated, barring oversight. Readers may note that many of the cites are Texas cases. This resulted from the history of the contents of these blogs.
Given the purposes and context in which the early versions of the essays were written, many of the legal rules explicitly numbered are from The Texas Rules that were built upon the ABA Model Rules.
This blog, like some of the others, will contain supplementary additions. Like the others, it will also use some abbreviations from time to time: L for lawyer, LF for law firm, C for client.
COMMANDMENT
SIX: SERVE SILENTLY (SORT OF)!
SIX: SERVE SILENTLY (SORT OF)!
Every
word of this commandment is important.
Lawyers are supposed to serve.
Lawyers are servants. Clients are
masters. Moreover, it is the obligation
of every lawyer to keep his clients’ secrets secret. Lawyers, therefore, must keep mostly
silent. Indeed, it the
responsibility of every lawyer to keep his client’s quasi-secrets completely
secret. At the same time, it is
sometimes the responsibility of the lawyer to confront a client who wants her
to do something and to tell the client (a) that the lawyer won’t help the
client and (b) that the client must stop doing what he wants to do. Moreover, there are some exceptions to the
rule that lawyers should serve in silence.
word of this commandment is important.
Lawyers are supposed to serve.
Lawyers are servants. Clients are
masters. Moreover, it is the obligation
of every lawyer to keep his clients’ secrets secret. Lawyers, therefore, must keep mostly
silent. Indeed, it the
responsibility of every lawyer to keep his client’s quasi-secrets completely
secret. At the same time, it is
sometimes the responsibility of the lawyer to confront a client who wants her
to do something and to tell the client (a) that the lawyer won’t help the
client and (b) that the client must stop doing what he wants to do. Moreover, there are some exceptions to the
rule that lawyers should serve in silence.
A. Legal
Rules:
Rules:
2. 1.02: Abide by client decisions as to general
methods.
methods.
3, 1.02: If the client is incompetent, the lawyer
should seek some sort of legal guardianship.
should seek some sort of legal guardianship.
5. 1.03: Lawyers should report to clients and make
sure that they have enough information to make reasonable decisions.
sure that they have enough information to make reasonable decisions.
6. 1.05: Lawyers must keep the information of their
clients confidential.
clients confidential.
(1) Privileged material. (A lawyer’s communication to his client
noting a trial setting is not governed by the attorney-client privilege. Solomon v. Texas, 999 S.W.2d 35 (Tex.
App.–Houston [14th Dist.] 1999, no pet.).
See Austin v. Texas, 934 S.W.2d 672 (Tex. Crim. App. 1996).)
noting a trial setting is not governed by the attorney-client privilege. Solomon v. Texas, 999 S.W.2d 35 (Tex.
App.–Houston [14th Dist.] 1999, no pet.).
See Austin v. Texas, 934 S.W.2d 672 (Tex. Crim. App. 1996).)
(2) Unprivileged material.
(3) Exceptions.
(7) 1.15 Lawyers may not withdraw from
representations in ways that would hurt their client’s interests.
representations in ways that would hurt their client’s interests.
(8) 3.07 Don’t try to win your cases in the press.
(9) 5.01:
Senior lawyers must supervise junior
lawyers in accordance with the rules of professional responsibility. The same goes for paralegals and other staff.
Senior lawyers must supervise junior
lawyers in accordance with the rules of professional responsibility. The same goes for paralegals and other staff.
B. Commentary.
1. Conceive
of the lawyer as a butler. This is mistake. Butlers may advise clients in many sorts of ways. However, they are almost never thought of as engaging in “deliberation” with their clients. This, and Socratic Dialogue, are “above” the rank of Butlers, and yet some philosophers of law and lawyering conceive as excellent lawyers as doing exactly that. See Anthony T. Kronmen, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993),the subject of a mostly critical symposium in 2014 JOURNAL OF HE PROFESSIONAL LAWYER.
of the lawyer as a butler. This is mistake. Butlers may advise clients in many sorts of ways. However, they are almost never thought of as engaging in “deliberation” with their clients. This, and Socratic Dialogue, are “above” the rank of Butlers, and yet some philosophers of law and lawyering conceive as excellent lawyers as doing exactly that. See Anthony T. Kronmen, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993),the subject of a mostly critical symposium in 2014 JOURNAL OF HE PROFESSIONAL LAWYER.
2. Remember
that the lawyer is a servant, at least in substantive areas; someone
else is the master. (This is true
both for lawyers who are part of a general counsel operation and for lawyers
who are of-house counsel.)
that the lawyer is a servant, at least in substantive areas; someone
else is the master. (This is true
both for lawyers who are part of a general counsel operation and for lawyers
who are of-house counsel.)
a. Lawyers (and their assistants) must report
religiously. This an
Iron Clad, Exceptionless
Rule: Report! Report!
Report! Question: What if the client tells you not to
report. Answer #1: Get it in writing. Answer #2: Fire the client. Question: What’s missing here? Beginning: Ask why not? Then listen carefully, skeptically, and intense doubts.
religiously. This an
Iron Clad, Exceptionless
Rule: Report! Report!
Report! Question: What if the client tells you not to
report. Answer #1: Get it in writing. Answer #2: Fire the client. Question: What’s missing here? Beginning: Ask why not? Then listen carefully, skeptically, and intense doubts.
b. Lawyers must seek permission and get
directions.
directions.
c. Lawyers must give sufficient advice to
their masters so that they can make reasonable decisions.
their masters so that they can make reasonable decisions.
d. Agents and Settlement Authority. Even though lawyers are agents, they may not
settle cases without their clients’ consent. This constraint applies even when
the settlement would appear to be objectively preferable to the status quo.
settle cases without their clients’ consent. This constraint applies even when
the settlement would appear to be objectively preferable to the status quo.
e. Apparent Authority. Sometimes, lawyers have apparent authority to
settle on behalf of their clients, even though they don’t have actual
authority.
settle on behalf of their clients, even though they don’t have actual
authority.
f. Lawyer As Independent Contractor. They say that lawyers are servants (in
practical terms), even though they are legally independent contractors. State Farm Mut. Auto. Ins. Co. v. Traver,
980 S.W.2d 625 (Tex. 1998). This latter
idea doesn’t make complete sense to us, since clients have the right to control
a fair fraction of the substance what lawyers do. They do not have the right to control the
details of the work. This is
particularly true as to low-level procedure and routine tactics.
practical terms), even though they are legally independent contractors. State Farm Mut. Auto. Ins. Co. v. Traver,
980 S.W.2d 625 (Tex. 1998). This latter
idea doesn’t make complete sense to us, since clients have the right to control
a fair fraction of the substance what lawyers do. They do not have the right to control the
details of the work. This is
particularly true as to low-level procedure and routine tactics.
g. Dramatic Unauthorized Disclosure. It is a grievable offense for a lawyer to
dream up a hare-brained scheme that involves making public disclosures of
client’s secrets, and then carry out the plan without obtaining client
consent. In re Ingersoll, 710
N.E.2d 390 (Ill. 1999) (disclosure of
confession in criminal case to public media).
This lawyer was disbarred. He was
guilty of other serious infractions as well, but the disclosure was the most
serious.
dream up a hare-brained scheme that involves making public disclosures of
client’s secrets, and then carry out the plan without obtaining client
consent. In re Ingersoll, 710
N.E.2d 390 (Ill. 1999) (disclosure of
confession in criminal case to public media).
This lawyer was disbarred. He was
guilty of other serious infractions as well, but the disclosure was the most
serious.
h. Defeating Vicarious Liability. When a lawyer issues a press release that is
defamatory, and ignores the client’s requested corrections in the release, then
the client has neither ratified nor authorized the release, and is not
vicariously liable for the defamation. Computeraid,
Inc. v. Hewlett-Packard Co., 56 F.Supp.2d 526 (E.D. Pa. 1999).
defamatory, and ignores the client’s requested corrections in the release, then
the client has neither ratified nor authorized the release, and is not
vicariously liable for the defamation. Computeraid,
Inc. v. Hewlett-Packard Co., 56 F.Supp.2d 526 (E.D. Pa. 1999).
3. Lawyers
are fiduciaries of their clients. Since
lawyers are fiduciaries, they must keep confidential information secret. Surely, discretion and the silence it implies
are characteristics of the good butler and hence characteristics of the good
lawyer.
are fiduciaries of their clients. Since
lawyers are fiduciaries, they must keep confidential information secret. Surely, discretion and the silence it implies
are characteristics of the good butler and hence characteristics of the good
lawyer.
C. Representing Fiduciaries. In some jurisdictions a lawyer who represents
a fiduciary generally with respect to the fiduciary estate may disclose to a
court or to the beneficiaries acts or omissions by the fiduciary that might
constitute any breach of fiduciary duty.
Jurisdictions that do not require or permit such disclosures, a lawyer
engaged by a fiduciary may condition
representation on the fiduciaries agreement that the creation of a
lawyer-client relationship between them will not preclude the lawyer from
disclosing to the beneficiaries of the fiduciary estate or to an appropriate
court, any actions of the fiduciary that might constitute a breach of fiduciary
duty,. ACTEC-15.
a fiduciary generally with respect to the fiduciary estate may disclose to a
court or to the beneficiaries acts or omissions by the fiduciary that might
constitute any breach of fiduciary duty.
Jurisdictions that do not require or permit such disclosures, a lawyer
engaged by a fiduciary may condition
representation on the fiduciaries agreement that the creation of a
lawyer-client relationship between them will not preclude the lawyer from
disclosing to the beneficiaries of the fiduciary estate or to an appropriate
court, any actions of the fiduciary that might constitute a breach of fiduciary
duty,. ACTEC-15.
1. Lawyer’s for fiduciaries disclose in
Texas?
Texas?
2. Are they obligated to disclose?
3. A prospective agreement regarding
disclosure be enforceable in Texas?
disclosure be enforceable in Texas?
4. Would it be consistent with the rules
of professional responsibility in Texas?
of professional responsibility in Texas?
D. Confidentiality and Other Rights. An in-house counsel who indiscreetly makes
disclosures to third persons about internal legal issues will likely not be
heard to suggest that her dismissal was an actionable retaliation under various
civil rights statutes. Douglas v.
Dyne McDermott Petroleum Operations Co., 144 F.3d 364 (5th Cir. 1998). This case contains a significant discussion
of the importance of in-house counsel. Id.
at 375.
disclosures to third persons about internal legal issues will likely not be
heard to suggest that her dismissal was an actionable retaliation under various
civil rights statutes. Douglas v.
Dyne McDermott Petroleum Operations Co., 144 F.3d 364 (5th Cir. 1998). This case contains a significant discussion
of the importance of in-house counsel. Id.
at 375.
E. Confidentiality Among Multiple
Clients. The attorney-client
privilege does not apply among co-clients on the same matter. FDIC v. Ogden Corp., 202 F.3d 454 (4th
Cir. 2000). Neither do the rules require
confidentiality amongst co-clients.
Clients. The attorney-client
privilege does not apply among co-clients on the same matter. FDIC v. Ogden Corp., 202 F.3d 454 (4th
Cir. 2000). Neither do the rules require
confidentiality amongst co-clients.
F. Confidentiality in Self-Defense. To some extent, lawyers are relieved of their
duty to keep their client’s secrets when the client attacks the lawyer by way
of a malpractice case or something of the sort.
The lawyer’s duty of confidentiality is not extinguished, however, for the
lawyer is permitted to divulge only that amount of confidential information
that is necessary for his defense. Grieg v.
Macy’s Northeast, Inc., 1 F. Supp.2d 397 (D.N.J. 1998). Lawyers are not per se permitted to disclose
everything they know in a legal controversy with their clients, for example, a
suit to collect fees. Judwin
Properties, Inc. v. Griggs & Harrison, 981 S.W.2d 868
(Tex. Civ. App.–Houston [1st Dist.] 1998), pet. denied, but with some language disapproved,
43 Tex.
S. Ct. J. 289 (January 8, 2000).
duty to keep their client’s secrets when the client attacks the lawyer by way
of a malpractice case or something of the sort.
The lawyer’s duty of confidentiality is not extinguished, however, for the
lawyer is permitted to divulge only that amount of confidential information
that is necessary for his defense. Grieg v.
Macy’s Northeast, Inc., 1 F. Supp.2d 397 (D.N.J. 1998). Lawyers are not per se permitted to disclose
everything they know in a legal controversy with their clients, for example, a
suit to collect fees. Judwin
Properties, Inc. v. Griggs & Harrison, 981 S.W.2d 868
(Tex. Civ. App.–Houston [1st Dist.] 1998), pet. denied, but with some language disapproved,
43 Tex.
S. Ct. J. 289 (January 8, 2000).
G. Attorney-Client Conflict. When a lawyer needs legal advice in dealing
with his client, the lawyer may disclose confidential matters regarding his
client to his lawyer. (Jacobs v.
Schiffer, 47 F. Supp.2d 16 (D.C.C. 1999).
(“The personal attorney becomes, in practical effect, simply a learned
alter ego of the government lawyer and equally duty-bound to treat the
confidences and secrets of the government lawyers’ client [i.e., the
government] as his own.” Id. at
21.
with his client, the lawyer may disclose confidential matters regarding his
client to his lawyer. (Jacobs v.
Schiffer, 47 F. Supp.2d 16 (D.C.C. 1999).
(“The personal attorney becomes, in practical effect, simply a learned
alter ego of the government lawyer and equally duty-bound to treat the
confidences and secrets of the government lawyers’ client [i.e., the
government] as his own.” Id. at
21.
H. Question: We have all been taught that confidentiality
is both absolutely necessary for legal representation and that it is there to
protect the client. Recently, some legal
scholars have questioned this and have suggested that the principal reason for
confidentiality rules is to drive up the price of legal fees. Daniel R. Fischel, Lawyers and
Confidentiality, 65 U. Chi. L. Rev.
(1998). Can this be right? See Jonathan R. Macey and Geoffrey P. Miller,
An Economic Analysis of Conflict of Interest Regulation, 82 Iowa L. Rev. 81 (1997). (See also C6 below.)
is both absolutely necessary for legal representation and that it is there to
protect the client. Recently, some legal
scholars have questioned this and have suggested that the principal reason for
confidentiality rules is to drive up the price of legal fees. Daniel R. Fischel, Lawyers and
Confidentiality, 65 U. Chi. L. Rev.
(1998). Can this be right? See Jonathan R. Macey and Geoffrey P. Miller,
An Economic Analysis of Conflict of Interest Regulation, 82 Iowa L. Rev. 81 (1997). (See also C6 below.)
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