The Model Rules of Professional Conduct define the main concepts governing ethics and professional responsibility for attorneys. However, a student of this topic also must understand how courts have interpreted these principles and certain related constitutional doctrines. Courts have addressed issues such as the attorney-client privilege, attorney fees, conflicts of interest, and the respective roles of the attorney and the client in shaping a legal matter. Below is an outline of key cases in the law of professional responsibility with links to the full text of virtually every case, provided free by Justia.
Formation and Termination of the Attorney-Client Relationship
An attorney-client relationship may form implicitly in some situations, even when no fee is paid. A client or an attorney generally can end the relationship for any reason, although a lawyer may have certain obligations to protect the client’s interests upon withdrawal.
Perez v. Kirk & Carrigan 一 An agreement to form an attorney-client relationship may be implied from the conduct of the parties. The relationship does not depend on the payment of a fee.
Togstad v. Vesely, Otto, Miller & Keefe 一 When a person calls on an attorney for legal advice, and the attorney gives them a professional opinion in reference to that matter, the attorney has acted as the person’s legal adviser at their request, which establishes between them the relation of attorney and client.
Crews v. Buckman Laboratories International, Inc. 一 In-house counsel may bring a common-law action for retaliatory discharge resulting from counsel’s compliance with a provision of the Code of Professional Responsibility that represents a clear and definitive statement of public policy.
Gilles v. Wiley, Malehorn & Sirota 一 The issue is whether the withdrawal of an attorney, considering both the manner in which it was done and its timing, was accomplished without material adverse effect on the client’s interests in that it was attended by steps reasonably practicable to protect their interests.
The Duties of an Attorney
A lawyer has a duty to provide competent and diligent representation to a client. The relationship also imposes a duty of confidentiality. In limited situations, an attorney may have a duty to a non-client.
Nichols v. Keller 一 When a retention is expressly limited, an attorney still may have a duty to alert a client to legal problems that are reasonably apparent, even if they fall outside the scope of the retention.
Hawkins v. King County 一 The obligation to warn, when confidentiality would be compromised to the client’s detriment, must be permissive at most unless it appears beyond a reasonable doubt that the client has formed a firm intention to inflict serious personal injuries on an unknowing third person.
People v. Belge 一 The effectiveness of counsel in a criminal case is only as great as the confidentiality of the client-attorney relationship.
Greycas, Inc. v. Proud 一 For a non-client to succeed in a malpractice action against an attorney, they must prove that the primary purpose and intent of the attorney-client relationship was to benefit or influence the third party.
Chem-Age Industries, Inc. v. Glover 一 Attorneys acting in a professional capacity should be free to render advice without fear of personal liability to third persons if the advice later goes awry. However, the privilege of rendering professional services is not absolute, and lawyers should not be free to substantially assist their clients in committing tortious acts.
The Attorney-Client Privilege
The attorney-client privilege generally shields communications between an attorney and a client regarding legal representation when there is a reasonable expectation of confidentiality. Exceptions include consent or waiver, as well as certain situations involving a crime or fraud. Some materials not covered by the privilege may be covered by the work product doctrine.
Upjohn Co. v. U.S. 一 The attorney-client privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable them to give sound and informed advice. However, the privilege only protects disclosure of communications, rather than disclosure of the underlying facts.
U.S. v. Kovel 一 What is vital to the attorney-client privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.
Hickman v. Taylor 一 Memoranda, statements, and mental impressions prepared or obtained from interviews with witnesses by counsel in preparing for litigation after a claim has arisen are not within the attorney-client privilege. However, a party who would invade the privacy of an attorney’s course of preparation must establish adequate reasons to justify production through a subpoena or court order.
Samaritan Foundation v. Goodfarb 一 All communications initiated by an employee and made in confidence to counsel, in which the communicating employee is directly seeking legal advice, are privileged. When an investigation is initiated by the corporation, however, factual communications from corporate employees to corporate counsel are within the corporation’s privilege only if they concern the employee’s own conduct within the scope of their employment and are made to assist counsel in assessing or responding to the legal consequences of that conduct for the corporate client.
In re Lindsey 一 A government attorney may not invoke the attorney-client privilege in response to grand jury questions seeking information related to the possible commission of a federal crime.
In re Grand Jury Subpoena Duces Tecum 一 The crime-fraud exception applies if a prudent person would have a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and the communications were in furtherance thereof.
U.S. v. Zolin 一 In appropriate circumstances, in camera review of allegedly privileged attorney-client communications may be used to determine whether the communications fall within the crime-fraud exception. Before a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that such review may reveal evidence that establishes the exception’s applicability.
The Scope and Limits of Attorney Authority
A client generally controls the objectives of the representation. However, the lawyer generally retains control over the means used to pursue the client’s goals, such as the legal arguments and strategies.
Strickland v. Washington 一 A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show that counsel’s performance was deficient and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
Anders v. California 一 If court-appointed counsel in a criminal case conscientiously decides that an appeal is wholly frivolous, they should so advise the court and request permission to withdraw, while furnishing the court and the defendant with a brief of anything in the record arguably supporting the appeal. If the court finds any legal points arguable after full review, it must appoint counsel to argue the appeal.
Jones v. Barnes 一 An indigent defendant has no constitutional right to compel appointed counsel to press non-frivolous points requested by the client if counsel decides not to present those points as a matter of professional judgment.
Taylor v. Illinois 一 The Compulsory Process Clause of the Sixth Amendment does not create an absolute bar to preclusion of the testimony of a defense witness as a sanction for violating a discovery rule.
In the Matter of M.R. 一 The primary duty of an attorney for a developmentally disabled person is to protect and advocate that person’s rights, including the right to make decisions on specific matters. However, on perceiving a conflict between the person’s preferences and their best interests, the attorney may inform the court of a possible need for a guardian ad litem.
The No-Contact Rule
A lawyer generally cannot discuss the subject of their representation with someone who is known to be represented by another lawyer in that matter, unless that lawyer grants permission. The Sixth Amendment essentially provides a corollary to the no-contact rule in criminal cases.
Niesig v. Team I 一 The no-contact rule in the corporate setting prohibits direct communication by adversary counsel with officials who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation’s lawyer, or any member of the organization whose own interests are directly at stake in a representation.
Gidatex, S.r.L. v. Campaniello Imports, Ltd. 一 The use of private investigators, posing as consumers and speaking to nominal parties who are not involved in any aspect of the litigation, does not constitute an end-run around the attorney-client privilege.
Miranda v. Arizona 一 The prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Prior to any questioning, the person must be warned that they have a right to remain silent, that any statement that they make may be used as evidence against them, and that they have a right to the presence of an attorney, either retained or appointed. If they state that they want an attorney, the questioning must cease until an attorney is present.
Brewer v. Williams 一 An individual against whom adversary proceedings have commenced has a right to legal representation when the government interrogates them. To show a waiver of the right to the assistance of counsel, the state must prove an intentional relinquishment or abandonment of a known right or privilege.
U.S. v. Hammad 一 In light of the underlying purposes of the Professional Responsibility Code and the exclusionary rule, suppression may be ordered in the district court’s discretion to remedy an ethical breach by a prosecutor.
Rules of professional conduct generally prohibit attorneys from charging, collecting, or agreeing to unreasonable or excessive fees. Contingent fees are generally permitted in most civil matters as long as they are reasonable. Each party typically pays their own fees in a legal matter.
Brobeck, Phleger & Harrison v. Telex Corp. 一 A $1 million fee was not so excessive as to render a contract unenforceable when a multi-million corporation, represented by able counsel, sought to secure the best attorney that it could find and received substantial value from their services.
Goldfarb v. Virginia State Bar 一 A minimum fee schedule published by a county bar association and enforced by a state bar violated Section 1 of the Sherman Act.
In re Fordham 一 A lawyer may not always escape discipline for charging excessive fees with billings based on accurate time charges for work honestly performed.
In the Matter of Cooperman 一 The use of a non-refundable fee retainer is unethical, and it is violative of an attorney’s obligations under the Code of Professional Responsibility to refund unearned fees upon their discharge.
Evans v. Jeff D. 一 The Fees Act does not require a district court to disapprove a stipulation seeking to settle a civil rights class action under Rule 23 when the offered relief equals or exceeds the probable outcome at trial, but is expressly conditioned on a waiver of statutory eligibility for attorney’s fees.
City of Burlington v. Dague 一 The typical federal fee-shifting statute does not permit an attorney’s fee award to be enhanced on account of contingency.
City of Riverside v. Rivera 一 Fee awards under Section 1988 do not necessarily need to be proportionate to the amount of damages that a civil rights plaintiff actually recovers.
Perdue v. Kenny A. 一 The calculation of an attorney’s fee based on the lodestar (number of hours worked multiplied by prevailing hourly rate in the community) may be increased due to superior performance, but only in extraordinary circumstances.
Business transactions involving an attorney and their client require certain precautions, such as full disclosure and informed written consent. Some codes of attorney ethics address conflicts between the interests of a lawyer (or their client) and a family member of the lawyer.
In the Matter of Neville 一 Full disclosure requires not only that the lawyer make proper disclosure of non-representation but also that they disclose every circumstance and fact that the client should know to make an intelligent decision concerning the wisdom of entering the agreement.
Gellman v. Hilal 一 In the context of attorney-spouses working for opposing law firms, there is no per se rule of disqualification based on marital status.
Conflicts Between Concurrent Clients
A conflict of interest between two clients may arise when the representation of one client is directly adverse to another client, or when there is a significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another client or a former client. Conflicts often involve the joint representation of criminal defendants.
Holloway v. Arkansas 一 When a trial court improperly requires joint representation of criminal defendants over timely objection, reversal is automatic, and prejudice is presumed regardless of whether it was independently shown.
Cuyler v. Sullivan 一 The Sixth Amendment requires a state trial court to investigate timely objections to multiple representation. However, unless the court knows or reasonably should know that a particular conflict exists, the court does not need to initiate an inquiry into the propriety of multiple representation.
Wheat v. U.S. 一 The provision of conflict waivers by all affected parties in a criminal case will not necessarily cure any problems, since courts have an independent interest in assuring compliance with ethical standards and the appearance of fairness. Although there is a Sixth Amendment presumption in favor of counsel of choice, this may be overcome by showing a serious potential for conflict.
Young v. U.S. ex rel. Vuitton et Fils 一 Counsel for a party that is the beneficiary of a court order may not be appointed to undertake criminal contempt prosecutions for alleged violations of that order.
Fiandaca v. Cunningham 一 Without evidence of true necessity, a meritorious disqualification motion must not be denied in the interest of expediency unless it can be shown that the movant strategically sought disqualification in an effort to advance an improper purpose.
IBM Corp. v. Levin 一 To adhere to the high standards of professional responsibility, an attorney must resolve all doubts in favor of full disclosure to a client of the facts of the attorney’s concurrent representation of another client in a lawsuit against them.
Simpson v. James 一 Liability may not be premised solely on the fact that an attorney represented both the buyer and the seller in a real estate transaction. After full disclosure by the attorney, it may be proper in some circumstances for them to represent both sides in the transaction.
Public Service Mutual Insurance Co. v. Goldfarb 一 Independent counsel is necessary when an insurance defense attorney’s duty to the insured would require defeating liability on any ground, and their duty to the insurer would require defeating liability only on grounds that would make the insurer liable. When this conflict arises, the insured must be free to choose their own counsel, whose reasonable fee is to be paid by the insurer.
Conflicts Between Successive Clients
A lawyer should not represent a client in a matter substantially related to a matter in which they formerly represented another client when the interests of the former and current clients are materially adverse. These issues often arise when firms merge, or when a lawyer moves between firms.
Analytica, Inc. v. NPD Research, Inc. 一 A lawyer may not represent an adversary of their former client if the subject matter of the two representations is substantially related, which means that the lawyer could have obtained confidential information in the first representation that would have been relevant in the second.
Cromley v. Board of Education of Lockport Township High School District 205 一 A presumption of shared confidences may be rebutted either by proof that the attorney had no knowledge of the information, confidences, or secrets related by the client in the prior representation, or by proof that screening procedures were timely employed in the new law firm to prevent the disclosure of information and secrets.
This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.