SOME PRINCIPLES OF LAWYER CONDUCT:
LECTURE NOTES
of
Michael Sean Quinn*
1.
Lawyers (“Ls”) may not lead or permit their clients
(“Cs”) to believe that they are substantially more experienced or competent
than they are. For that matter, L may
not let C believe that he has even a moderate amount of experience or knowledge
that he does not have.[1] Leading a client to believe a false
proposition is misrepresentation and may be fraud. Permitting a client to believe a false
proposition which is important is inconsistent with loyalty and
trustworthiness―as affirmative causation thereof―and therefore a breach of a
lawyer’s fiduciary duty to his client.
2.
Ls should never represent or assert any relevant and
significant false propositions to Cs.[2] This proposition applies to all sorts of
representations, including:
i.
bills and fees,
ii.
the probable results in a case and or the possible
ranges,
iii.
the probable worth of a case, including the probable
amounts of
recoverable
damages, and/or its possible ranges, as well as,
iv. reports as to how others, e.g., liability carriers providing defenses are behaving or believing.
The less
justification or evidence L has for making an assertion, the less likely it is
that he should make it, although certainly the more important it is that he be
extremely clear about his epistemic uncertainties, lack of evidence, presence of hopeful guesswork, and so forth.
3.
L should never make, participate in making, cause to be
made, or permit to be made in his name statements about a client or former
client which he knows or believes to be false or falsifiable.
4.
L may not represent clients with conflicting interests
without obtaining their informed consent after adequate disclosures and
discussions.
i.
This includes situations in which C1 is
financing all or part of L’s representation of C2.
ii.
There are other types of conflict, of course, if L has
a business relationship with C, this may create a special conflict. It would certainly have to be disclosed to a
judge who was to or who had approved the client-attorney relationship. It would also have to be disclosed to any
other client involved in the same case.
5. L should
never falsely represent to C1 that it is prudent and reasonable to represent C2 when it is
not. This rule is especially powerful
when L has reason to believe that this may not be a good idea. It has even more power when L knows such to
be the case.
6. In
litigation, a lead lawyer must rationally evaluate the value of the case. This requires evaluating or determining to
some reasonable and appropriate degree (i) the probability of winning, (ii) the
probable size of the judgment, (iii) the probability of collecting if there is
a win, (iv) from whom there can be recovery if there is more than one
defendant, and (v) how much can be collected, both individually and totally. Informing C of alternative reasonable and
fact-based, if possible, hypotheses (or, points of view) regarding these kinds
of matters is also required to the extent possible, but there must be some sort
of unequivocal recommendation as to what L reasonably believes is in the best
interests of the client (considered by himself alone)―given the client’s
knowledge, economics, finances, budget, view of the world, preferences,
personal (or entity) orientation, and character, together with the financial situations of
each of the defendants.[3] Significantly, P-6 is
linked closely to P-2.iii.
7. The
preceding principle (P-6) applies both to actual persons and to organizations,
such as corporations and limited partnerships, which are legal persons. It also pertains independently to each client
involved in the same dispute.
8. If no
P-6 type evaluation is possible, L must inform the client that s/he[4]
does not know the answer and cannot come to know it. Why this inability is true must be reasonably
explained to C. Obviously, if the
opposing side is concealing or refusing to produce relevant evidence, this fact
in itself can be an important premise in drawing relevant conclusions. Often, if the opposing side is concealing
economic information, traces of this activity or diagnostic behavior can be
discerned.
9. L should
never convince C, try to convince a client, or even suggest to C that a case
should be pursued which L believes cannot be won, is unlikely to be won, or
cannot serve the personal interests of the client.[5] Exit by a party from given litigation is
almost always an option, as is immediate resolution by some settlement or other
means. This rule applies with enormous
force to high-cost-to-the-client cases.
(The rule is less forceful in contingency fee cases where L is bearing
the expenses, although it still applies, for various reasons.) If C wants to spend—what many would call
“squander”—money on a loser case just to illustrate justice or to seek
retribution or vengeance, L should help C understand exactly what he is doing
and what the consequences of his pursuit will and will not be. This is one of the duties of L, the wise
adviser.
10. As
enormously important as P-9 is, it is even more important that L refrain from
instituting or continuing litigation because it is in L’s interest, when it is
not in the interest of C.
11. Unnecessary
or irrelevant parties should not be sued by Ls representing Cs that are
plaintiffs or counter-plaintiffs, and if such parties have been sued, they
should be dismissed when their lack of involvement becomes clear. Contrary conduct by L is inconsistent with
L’s duties to C, as well as his legal and professional duties.
12. And, of
course, all the probably necessary plaintiffs should be included in original
pleadings and/or amended pleadings, if possible. Here L obligation to include X as a plaintiff
results either from X’s voluntary consent or C’s control rights over X.
13. Usually,
all probably blameworthy, responsible, and/or liable parties should be included
as parties by L representing a plaintiff. (There are exceptions, of course).
14. In
litigation, L should proceed upon all appropriate legal theories, avoid all
inappropriate ones, seek all legally appropriate and needed remedies, and avoid
seeking illegitimate or legally unjustifiable remedies. Here are some examples.
i. If recovery
hinges on negligence, it is inappropriate to sue for fraud.
ii.
If recovery hinges on the unlawful diversion and hence
deprivation of corporate asserts, then an action should proceed on that basis.
iii.
A P-14.ii type action should not be pursued on the
basis of stockholder recovery. Corporate
assets do not themselves belong to the individual stockholder, who has no
standing to recover them.
iv.
The same point is true with respect to corporate
opportunities. They belong to the
corporation, not the shareholders.[6]
v.
If there are preemptive rights, clients should be
advised about them, and violations of them should be pursued in a timely
manner.
vi.
If a receiver is needed in an action involving
corporate assets and governance, a receiver should be sought.
15. L may not
charge C unreasonable fees. Stated fees,
at least for plaintiffs, can be unreasonable because they are unnecessary,
because they are false, because they result from over staffing, or because they
are substantially out of kilter with the value of a case, the experience and
level of ability of the lawyer (which has been disclosed), the degree of
complexity of the case, the difficulty of the tasks performed at C’s direction
or with C’s antecedent consent, and/or the perceived value of a case.
16. Bills
must be informative and understandable.
The same point applies to reports designed for clients.
17. P-15
applies to both amounts and structures.
Thus, if L’s fees must be approved by a judge, L may not charge C in
ways inconsistent with that obligation.
This duty runs to the bench, the bar, and the client. See P-20.
18. L may
not factor accounts receivable from clients.
If L is falsely accused of this by C, L has a duty to C to immediately
deny the “charge” and to try to convince C that his charge is false.
19. L. must
himself or see to it that all legal fees are reasonably explained to every
client who is paying any of those particular fees, absent an explicit,
explained, and informed agreement to the contrary. (This has not always been true, but it has
been true for a long time).
20. If court
approval is ordered for legal fees, it must be obtained, before the C is
charged. A violation of this rule leads
to the charging of unapproved fees and that is inconsistent with―for
example―utmost loyalty, fidelity, and good faith.
21. L must
always act reasonably in the rendition of legal services. Unreasonable and causally significant conduct
(or the unreasonable absence thereof) is shameful to the lawyer who has engaged
in those acts or omissions and to be condemned by all rational observers.[7] Unreasonable conduct is often generated by
unreasonable beliefs, inattention, overwork, laziness, negative emotions,
greed, the need for more money, and/or prideful narcissism.
22. Reports to clients, including estimates of
recoverable damages, are a form of legal services and so are included within P15
and governed thereby. See P-16.
23. If L
fails to evaluate accurately the potential for recovery and/or actual monetary
loss in a given case, L has very probably been unreasonable in conducting that
case. All such evaluations must be
communicated clearly, comprehensively, with reasoning to C.
24. Usually,
agreements between opposing counsel should be documented, often by jointly
signed agreed instruments.
25. In
conducting a lawsuit, L must perform (or cause to be performed) adequate
research and must think both clearly and comprehensively—as well as
skeptically, and hence with appropriate and acknowledged uncertainty―about the
course and meaning of the law. See P-14.
i.
One on the functions of an associate-level lawyer (La)
is to perform such research and at least begin the process of thinking legal
problems through.
ii. La is also
expected to know or find out applicable rules of procedure, and the simpler or
more elementary the rule, the truer P-23.ii is.
iii. Of course,
partner-level lawyers are expected and required to supervise as well as train
associate level associates.
26. If L1 uses
L2 to assist him in litigation, L2 must not only be capable of reasonable performance under the
circumstances of the case, L1 needs to bring L2 up to speed. The mistakes of L2
are those of L2 and L1.
27. If La
or L2 come to realize that L1 is mistreating C,
treating C inappropriately (given applicable rules of professional conduct),
treating C illegally, or violating his fiduciary duties to C, La and/or
L1 must notify C. Given the
fiduciary duties of La and L2 to C, they would even be
required to notify C of L1’s malpractice regarding C.
28. L is
expected to turn over all components of C’s file to C upon C’s request. L may keep copies, of course, but at L’s
expense (at least if the request occurs at the end of the client-attorney
relationship). L may never resist or refuse
turning C’s file materials over to C when L has or has access to the
materials. The mere fact that the papers
in question are poorly done or condemn L does not justify L’s refusal. (There are exceptions to this rule of course:
hurricanes, tornados, floods, 9/11 type acts of terrorism, and so forth).
29. What L1
considers his file is actually the property of C. C has an absolute right to the entirety of
this file. If L2 later
representing C requests the file on behalf of C, L1 must promptly
turn the whole of it over to L2. Of course, these are not all the
principles available for judging and/or evaluating lawyer conduct. There may even be others relevant to this
case. However, given what I do and do
not yet know, the above is enough for now.
[1] The
abbreviations were for giving the lecture.
Sometimes they were not used as is with the students. Also, the reader will realize soon enough
that this lecture could not be given in a hour.
It was designed to last for several hours, hopefully with breaks—like a day or two. Sometimes these notes—or something like
them, were distributed to the students; sometimes not.
[2]
Indeed, Ls should never lie to Cs about anything. See Michael Sean
Quinn , The Eleven
Commandments of Professional Responsibility.
These Commandments—or variations on them–have appeared in a number
of places, although, for obvious reasons, the number of them is always the
same. One of the early places of
publication, and by far the longest, because of the commentaries, is in
THE ETHICS COURSE 54-102 (6th Ed. 2004). This textbook was edited mostly by Beryl
Crowley and Mitchel L. Winick and published by The Texas Center for Legal
Ethics and Professionalism. It is still
distributed (I think) by CD to a course required by the Supreme Court for new Texas lawyers. This is Quinn’s Commandment Two formulated
somewhat narrowly. It is not only a
principle of professional responsibility; it is also a fiduciary duty. (There is also an hour long lecture on
Commandment Two available on the website of the Center. It is part of a series
of 11 or so separate videotaped lectures, given by me, prepared by the Center,
and concerning the 11 different commandments.)
Another set of variations is in lectures given repeated to a course
prescribed by the Supreme Court of Texas for newly licensed lawyers. See my “Long and Oppressive Resume.
[3]
Often, insurance is integral to this last point. The type of insurance is also relevant. Thus, cases which should be settled must be
settled more quickly if a malpractice policy is central, since they have
declining limits.
[4]
Henceforth, I shall simply use the pronoun “he,” with the understanding that
its use here is gender neutral.
[5]
Obviously, the idea of personal interest includes
the idea of financial interests, although many other matters are usually also
important.
[6] Of
course, a shareholder derivative action is a different matter, but that is
really a suit on behalf of the corporation.
[7]
See Id. at
141-79. This principle is one way to
formulate the tort of legal malpractice.
*Michael Sean Quinn
Law Office of Michael Sean Quinn
+
Quinn and Quinn
Law Office of Michael Sean Quinn
+
+
Quinn and Quinn
1300 West Lynn #208
Austin, Texas 78703
(Resumes Attached to Website: www.michaelseanquinn.com)
(o) 512-296-2594
(c) 512-656-0503
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