DOCSLIB.ORG

Ethical Dilemmas Inherent in a Trusts and Estates Practice

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Ethical Dilemmas Inherent in a Trusts and Estates Practice ETHICAL DILEMMAS INHERENT IN A TRUSTS AND ESTATES PRACTICE VICTORIA L. D'ANGELO, ESQ. BARCLAY DAMON, LLP Clarence, NY 363 364 ETHICAL DILEMMAS INHERENT IN A TRUSTS AND ESTATES PRACTICE I. BRIEF INTRODUCTION A. STANDARD OF CARE 1. The New York Rules of Professional Conduct, effective April 1, 2009, were a combination of the ABA Model Rules and the New York “prior” Lawyer’s Code of Professional Responsibility. The new rules have been amended several times since then, the last time on March 28, 2015. 2. New York State Bar Association Committee on Professional Ethics renders opinions periodically. 3. Various Courts render ethics decisions. II. FIDUCIARY-CLIENT RELATIONSHIP A. WHOM DO YOU REPRESENT? 1. Fiduciaries of the estate vs. the estate An attorney may say he or she represents the estate, but what he or she really means is he or she represents the fiduciaries of the estate. An estate cannot retain an attorney or make decisions for itself, only the fiduciaries of the estate can. (Ordover and Gibbs, Fiduciaries, Attorneys and Duty to Beneficiaries, N.Y. L. J., Feb. 25, 1999, p.3.) 2. Conflicts of interest There is no rule, ethical or otherwise that prevents a lawyer from representing an executor who has a potentially adverse individual interest against the estate. In re Dix, 11 A.D.2d 555, 199 N.Y.S.2d 958 (3d Dep't 1960): Appellate Division, Third Department, denied a motion to disqualify an attorney based on the potential of a conflict of interest. - 2 - 11782093.1 365 Representation when there is an actual conflict of interest is not advisable, or ethical, without full disclosure and a waiver. A client can waive his or her right to conflict-free representation in writing after full disclosure of the risks and benefits. Conflicts extends to partners and associates of the primary attorney. Avoid any appearance of “turncoat representation” (representing the other side - other executor or beneficiary.) A lawyer should avoid even the appearance of impropriety B. FIDUCIARY EXCEPTION TO THE ATTORNEY/CLIENT PRIVILEGE 1. Attorney client privilege, under CPLR §4503, deems communications between an attorney and his or her client as confidential unless it falls under very specific exceptions. These exceptions include communications made in the presence of a third party, communications that do not pertain to legal representation, the underlying factual situation, the existence of a retainer agreement or any communications in which privilege has been waived. 2. In 2002, CPLR §4503 was amended to add that a beneficiary shall not be treated as a client of the attorney for the fiduciary solely by reason of his or her status as a beneficiary. It also was amended to provide that there is no waiver of the privilege for confidential communications between the attorney and fiduciary. 3. Under CPLR §4503 (b), in a probate action, an attorney shall disclose information as to preparation, execution and revocation of any Will, but not privileged information that would disgrace the memory of the decedent. 4. The fiduciary exception to an attorney client privilege allows communications by a fiduciary to his or her attorney which are sought by a beneficiary. This exception has been enforced because of the fiduciary's obligation to disclose information about the administration of an estate or trust. 5. Rule 1.6(a) further protects the attorney-client privilege by prohibiting the revelation of client confidence or the use of that confidence against the client unless the client has given consent after full disclosure or unless the attorney is bound by law, court order or professional code. This includes confidences related to a client's intent to commit a crime (Matter of King, - 3 - 11782093.1 366 NYLJ, 9/25/97 at 33, col 6 [Surr. Ct. Westchester Co.]) or perpetrate a fraud or confidences necessary to exonerate an attorney from accusations of wrongdoing or to collect attorney's fees. A lawyer may reveal: (a) Confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them. (b) Confidences or secrets when permitted under Disciplinary Rules or required by law or court. (c) The intention of a client to commit a crime and information necessary to prevent the crime. (d) Confidences and secrets necessary to establish or collect the lawyer's fee or to defend the lawyer or his or her employees or associates against an accusation of wrongful conduct. 6. In relation to our chosen field, privilege survives our clients and not even an Executor can waive it unless the confidences can effectuate the decedent's intentions. No disclosure should be made which would “disgrace the memory of the decedent”. C. DISPOSITION OF ORIGINAL WILLS ON DEATH, DISABILITY OR RETIREMENT OF THE ATTORNEY 1. Status quo Currently, there is no universal standard of care for the disposition of original wills maintained by attorneys who are, for one reason or another, no longer in practice. Some are handled with care and passed on to another attorney to be kept safe from fire and mildew. Others are pitched into a dark, damp basement to be forgotten for years. A proceeding to admit a lost Will to probate should be avoided since it is not only costly and an embarrassment to the attorney, but has unethical trappings. 2. Proposed suggestions At the top of the list was the suggestion to amend the Rules of Professional Conduct to require all attorneys who possess the original wills of clients to make provisions for those documents after they discontinue their practice. - 4 - 11782093.1 367 Also suggested was passing a statute or issuing a court order to require the fiduciary of a deceased lawyer's estate to make a reasonable effort to return any original wills in the estate's possession to the clients. The Executive Committee has suggested depositing the remaining wills with the Surrogate's Court in the county in which the attorney maintained his or her practice. This of course, is to be avoided as a primary option to prevent an overflow of wills being filed for safekeeping. Many counties are already running out of room and some charge for such storage. III. MULTIPLE FIDUCIARIES A. ADVANTAGES OF MULTIPLE REPRESENTATION 1. The estate and the beneficiaries are frequently part of a single family and have common goals and priorities. 2. Financially, the estate is only responsible for one reasonable legal fee and using a single attorney may help lessen the estate expenses. B. ATTORNEY MUST HAVE UNDIVIDED LOYALTY 1. Rule 1.7 provides that a lawyer shall not represent a client if “the representation will involve the lawyer in representing differing interests” or if there is a “significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” The lawyer may represent a client if he or she will be able to “provide competent and diligent representation to each affected client,” or the clients have given informed written consent. 2. Aim for conflict-free representation to insure loyalty and if each fiduciary wants or needs his or her own attorney, that is fine. C. ATTORNEY AS INTERMEDIARY 1. Clients with potentially conflicting interests in an estate may seek an attorney to act as an intermediary to preserve their more important common goals. 2. According to the American College of Trust and Estate Counsel, “A lawyer may act as an intermediary between clients if (1) the lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and obtains - 5 - 11782093.1 368 each client's consent to the common representation (2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the clients' best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful (3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.” 3. As the acting intermediary, the lawyer has a responsibility to consult with each client regarding the decisions to be made to prevent uninformed decisions. D. MATTER OF SACKLER 1. In re Sackler, N.Y.L.J., May 16, 1989 (Sur. Ct. Nassau Co.) - In his last will and testament, Dr. Arthur M. Sackler named his third wife, his four children, his first wife and his attorney as co-executors. Each had their own attorney and the group decided to retain a “general counsel” to represent them all. The firm of the general counsel had each executor sign a written agreement that the firm would not face a conflict in defending the estate's position and representing other executors in any claim a co-executor brought against the estate in an individual capacity. 2. Clients may waive their right to conflict-free representation upon full disclosure. 3. A firm may apply to the Surrogate for advice and direction E. FORCED WITHDRAWAL 1. A lawyer should withdraw if any of the clients request it or if he or she cannot carry out his or her legal duty. Upon such withdrawal, the lawyer should not continue to represent any involved client in relation to the matter at hand. F. REFERENCE ARTICLES 1. Two excellent articles titled “Estates with Multiple Fiduciaries Pose Ethical and Practical Issues For Attorneys and Clients Alike” and “Early Detection of Possible Pitfalls In Fiduciary Obligations Can Prevent Later Problems” were written by John R.
Load more

Recommended publications
  • Attorney Disbarment Proceedings and the Standard of Proof David M
    Hofstra Law Review Volume 24 | Issue 1 Article 6 1995 Attorney Disbarment Proceedings and the Standard of Proof David M. Appel Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Appel, David M. (1995) "Attorney Disbarment Proceedings and the Standard of Proof," Hofstra Law Review: Vol. 24: Iss. 1, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol24/iss1/6 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Appel: Attorney Disbarment Proceedings and the Standard of Proof NOTE ATTORNEY DISBARMENT PROCEEDINGS AND THE STANDARD OF PROOF I. INTRODUCTION On March 22, 1994, the New York Supreme Court, Appellate Division, held that the conduct of one Theodore Friedman warranted disbarment.' Originally, a Special Referee recommended that Mr. Friedman be suspended from the practice of law for a two year period.2 However, the recommended suspension was rejected by the Appellate Division and disbarment was imposed as "the only proper punishment."' Mr. Friedman argued, to no avail, that the application of the "fair preponderance of the evidence" standard of proof in attorney disciplinary proceedings violated his due process rights under the United States Constitution.4 His appeal to New York's highest court was dismissed on May 5, 1994,' and certiorari was denied by the United States Supreme Court on October 3, 1994.6 In In re Friedman,the Appellate Division stated that the New York courts have "conclusively determined that the standard of proof in attorney disciplinary proceedings is a fair preponderance of the evi- dence."7 Indeed, in In re Capoccia,8 the New York Court of Appeals I.
    [Show full text]
  • Conflict of Interest and the Lawyer in Civil Practice
    Valparaiso University Law Review Volume 10 Number 3 Symposium on The Attorney-Client pp.433-452 Relationship: Rights and Duties Symposium on The Attorney-Client Relationship: Rights and Duties Conflict of Interest and the Lawyer in Civil Practice Charles P. Kindregan Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Charles P. Kindregan, Conflict of Interest and the Lawyer in Civil Practice, 10 Val. U. L. Rev. 433 (1976). Available at: https://scholar.valpo.edu/vulr/vol10/iss3/2 This Symposium is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Kindregan: Conflict of Interest and the Lawyer in Civil Practice CONFLICT OF INTEREST AND THE LAWYER IN CIVIL PRACTICE CHARLES P. KINDREGAN* At the heart of the skills which a lawyer offers to his client is the exercise of his independent professional judgment. Given the realities of the Anglo-American adversary system, a lawyer's total loyality must be to his client, restricted only by his duty to the court and to the law. An adversary system of jurisprudence simply will not work if a litigant's attorney has loyalities which conflict with the best legal interests of the client. Thus, the neces- sity that lawyers avoid conflicts of interest is a keystone of the profession. Yet, little has been written about the subject, and lawyers often appear insensitive to conflict of interest problems.
    [Show full text]
  • Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime Judith M
    William Mitchell Law Review Volume 37 | Issue 2 Article 18 2011 Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime Judith M. Rush Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Rush, Judith M. (2011) "Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime," William Mitchell Law Review: Vol. 37: Iss. 2, Article 18. Available at: http://open.mitchellhamline.edu/wmlr/vol37/iss2/18 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Rush: Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime DISBARMENT OF IMPAIRED LAWYERS: MAKING THE SANCTION FIT THE CRIME Judith M. Rush† I. INTRODUCTION ...................................................................... 917 II. BACKGROUND: MINNESOTA’S DISCIPLINARY SYSTEM ............. 917 A. Determining the Appropriate Disciplinary Sanction ............. 917 B. The Nature of the Misconduct ............................................ 919 C. Mitigating Factors ............................................................. 920 III. LAWYER IMPAIRMENT AND THE DISCIPLINARY PROCESS ......... 923 A. Lawyers in Crisis ............................................................... 923 B. Mitigation for Impaired Lawyers .......................................
    [Show full text]
  • ABA Standards for Imposing Lawyer Sanctions
    AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS Adopted by the Michigan Supreme Court in Grievance Administrator v Lopatin, 462 Mich 235, 238 n 1 (2000) Definitions “Injury” is harm to a client, the public, the legal system, or the profession which results from a lawyer*s misconduct. The level of injury can range from “serious” injury to “little or no” injury; a reference to “injury” alone indicates any level of injury greater than “little or no” injury. “Intent” is the conscious objective or purpose to accomplish a particular result. “Knowledge” is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. “Negligence” is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. “Potential injury” is the harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the lawyer*s misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer*s misconduct. A. PURPOSE AND NATURE OF SANCTIONS 1.1 Purpose of Lawyer Discipline Proceedings The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession.
    [Show full text]
  • MISAPPROPRIATION of CLIENTS' FUNDS: IS DISBARMENT ALWAYS JUSTIFIED! Mary Hackett
    MISAPPROPRIATION OF CLIENTS' FUNDS: IS DISBARMENT ALWAYS JUSTIFIED! Mary Hackett Attorneys hold money in a variety of circumstances, including pos- session of settlement checks, deposits for real estate transactions, and advances for attorneys' fees and costs. The funds usually are not se- cured, particularly because attorneys are not bonded. Only the profes- sion's reputation and the honor of the individual attorney provide the security for client funds and the attorney's signatory power.' Conse- quently, it is important that an attorney maintain the appearance of propriety. Canon 9 of the American Bar Association Model Code of Profes- sional Responsibility [ABA Code] states that "A Lawyer Should Avoid Even the Appearance of Professional Impr~priety."~In addition, Discipli- nary Rule [DR] 9-102 of the ABA Code requires that client funds should be deposited and maintained in a separate bank account apart from funds belonging to the lawyer or law firrn.3 Unlike the Canons, which 1. See Wolfram, MODERN LEGAL ETHICS 175 (1986). 2. Moreover, ETHICAL CONSIDERATION9-5 explains that "Separation of funds of a cli- ent from those of his lawyer not only serves to protect the client but also avoids even the appearance of impropriety, and therefore commingling of such funds should be avoided." ABA MODEL CODE OF PROFESSIONALRESPONSIBILITY EC 9-5 (1969), (emphasis added) reprinted in SELECTED STATUTES, RULES AND STANDARDS ON THE LEGAL PROFESSION 51 (West rev. ed. 1984). It should be noted that The canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal pro- fession.
    [Show full text]
  • Matter, Lingwood
    PUBLIC MATTER—DESIGNATED FOR PUBLICATION Filed August 27, 2019 STATE BAR COURT OF CALIFORNIA REVIEW DEPARTMENT In the Matter of ) No. 16-O-17302 ) RITA MAE LINGWOOD, ) OPINION AND ORDER ) State Bar No. 214145. ) ) Rita Mae Lingwood borrowed funds from a trust while serving as its trustee pursuant to a clause in the trust that permitted such transactions. The Office of Chief Trial Counsel of the State Bar (OCTC) alleged that the $60,000 loan was an improper business transaction with a client and also a misappropriation of trust funds. OCTC also charged Lingwood with failing to comply with the Probate Code and making misrepresentations regarding the transaction. The hearing judge found that Lingwood both misappropriated the $60,000 and improperly entered into a loan transaction for the same $60,000. The judge also found that Lingwood made misrepresentations about the loan, but dismissed the charge that she failed to comply with the Probate Code as duplicative of the improper loan charge. The judge recommended that Lingwood be disbarred. Lingwood appeals, asserting that the evidence does not support misappropriation and misrepresentation. In her pretrial statement, Lingwood acknowledged that the manner in which she borrowed the funds violated rule 3-300 of the Rules of Professional Conduct1 (count three: business transaction with a client) and that she failed to comply with Probate Code section 16002 1 All further references to rules are to the Rules of Professional Conduct that were in effect from September 14, 1992, to October 31, 2018, unless otherwise noted. (count two: failure to comply with laws)—two of the four counts of charged misconduct.
    [Show full text]
  • A Study of State Judicial Discipline Sanctions
    A STUDY OF STATE JUDICIAL DISCIPLINE SANCTIONS BY CYNTHIA GRAY This study was developed under grant #SJI-01-N-203 from the State Justice Institute. Points of view expressed herein do not necessarily represent the official positions or policies of the American Judica- ture Society or the State Justice Institute. American Judicature Society Allan D. Sobel Executive Vice President and Director Cynthia Gray Director Center for Judicial Ethics Copyright 2002, American Judicature Society Library of Congress Control Number: 2002113760 ISBN: 1-928919-13-8 Order #138 American Judicature Society 180 N. Michigan Ave., Suite 600 Chicago, Illinois 60601-7401 (312) 558-6900 Fax (312) 558-9175 www.ajs.org 10/02 Founded in 1913, the American Judicature Society is an independent, nonprofit organization sup- ported by a national membership of judges, lawyers, and other members of the public. Through research, educational programs, and publications, AJS addresses concerns related to ethics in the courts, judicial selection, the jury, court administration, judicial independence, and public understanding of the justice system. CONTENTS INTRODUCTION 1 OVERVIEW OF JUDICIAL DISCIPLINE 3 THE PURPOSE OF JUDICIAL DISCIPLINE 3 THE STANDARD FOR REMOVAL 4 REMOVING AN ELECTED JUDGE 4 STANDARD OF REVIEW FOR JUDICIAL DISCIPLINE SANCTIONS 5 AVAILABLE SANCTIONS 6 REMOVAL FROM JUDICIAL OFFICE 7 INTRODUCTION 7 TYPES OF MISCONDUCT FOR WHICH JUDGES HAVE BEEN REMOVED 8 Misconduct related to a judge’s duties or power 8 Combination of misconduct related to judicial duties and
    [Show full text]
  • The Colorado Rules of Professional Conduct
    The Colorado Rules of Professional Conduct As adopted by the Colorado Supreme Court on April 12, 2007, effective January 1, 2008, and amended through April 6, 2016 SYNOPSIS Rule 1.0. Terminology CLIENT-LAWYER RELATIONSHIP Rule 1.1. Competence Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer Rule 1.3. Diligence Rule 1.4. Communication Rule 1.5. Fees Rule 1.6. Confidentiality of Information Rule 1.7. Conflict of Interest: Current Clients Rule 1.8. Conflict of Interest: Current Clients: Specific Rules Rule 1.9. Duties to Former Clients Rule 1.10. Imputation of Conflicts of Interest: General Rule Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees Rule 1.12. Former Judge, Arbitrator, Mediator or Other Third-party Neutral Rule 1.13. Organization as Client Rule 1.14. Client with Diminished Capacity Rule 1.15. Safekeeping Property (Repealed) Rule 1.15A. General Duties of Lawyers Regarding Property of Clients and Third Parties Rule 1.15B. Account Requirements Rule 1.15C. Use of Trust Accounts Rule 1.15D. Required Records Rule 1.15E. Approved Institutions Rule 1.16. Declining or Terminating Representation Rule 1.16A. Client File Retention Rule 1.17. Sale of Law Practice Rule 1.18. Duties to Prospective Client COUNSELOR Rule 2.1. Advisor Rule 2.2. Intermediary 1 Rule 2.3. Evaluation for Use by Third Persons Rule 2.4. Lawyer Serving as Third-party Neutral ADVOCATE Rule 3.1. Meritorious Claims and Contentions Rule 3.2. Expediting Litigation Rule 3.3. Candor Toward the Tribunal Rule 3.4.
    [Show full text]
  • The Maryland Attorneys' Rules of Professional Conduct
    THE MARYLAND ATTORNEYS’ RULES OF PROFESSIONAL CONDUCT AND ATTORNEY TRUST ACCOUNTS 2017 Compliments of the Maryland State Bar Association, Inc. (Reprinted from Maryland Rules Annotated and updated with amendments through January 1, 2017 by the Young Lawyers’ Section of the Maryland State Bar Association, Inc.) i Copyright © 2017 Maryland State Bar Association, Inc. (MSBA) ALL RIGHTS RESERVED The MSBA’s publications and programs are intended to provide current and accurate information about subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that the MSBA does not render any legal, accounting, or other professional advice. Attorneys using MSBA publications or orally conveyed information in dealing with a specific client’s (or their own) legal matters should also research original sources of authority. CLE Publications Department Maryland Bar Center 520 W. Fayette Street Baltimore, MD 21201 Main 410/685-7878 Toll free 800-492-1964 www.msba.org Book Number: P-5024-17 ii Foreword The Maryland State Bar Association, Inc. (MSBA) is pleased to present to attorneys newly admitted to the Maryland bar this complimentary copy of the Maryland Attorneys’ Rules of Professional Conduct and Attorney Trust Accounts. This edition is fully up to date with all amendments received through January 1, 2017. The MSBA CLE Department offers over 200 publications in the form of practice manuals, handbooks, program materials, forms on CD, and DVDs. MSBA CLE publications address more than twenty discrete areas of law practice, utilizing a volunteer corps of hundreds of experienced and respected practitioners, judges and professionals.
    [Show full text]
  • The New York Felony Disbarment Rule: a Proposal for Reform
    Fordham Law Review Volume 47 Issue 4 Article 6 1979 The New York Felony Disbarment Rule: A Proposal for Reform Beverly Deickler Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Beverly Deickler, The New York Felony Disbarment Rule: A Proposal for Reform, 47 Fordham L. Rev. 606 (1979). Available at: https://ir.lawnet.fordham.edu/flr/vol47/iss4/6 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE NEW YORK FELONY DISBARMENT RULE: A PROPOSAL FOR REFORM INTRODUCTION An attorney occupies a privileged position in our society. As an officer of the court,' his integrity is presumed; he is held out to the public as one particularly worthy of trust and confidence. 2 The attorney's privileged posi- tion was not artificially conceived. It proceeds from the very nature of the practice of law. "The general public has need for a professional man in whom it can repose a particular type of confidence whenever it is faced with some distressing problems, often of a very personal nature."13 On the other hand, the practice of the law implicates professional obligations beyond those immediately owed by the attorney to his client. It "implies an equally demanding relation of trust and confidence to the court and to the general public, as well as high duties toward the law and the impartial administration '4 of justice." "A Lawyer that is a Knave ..
    [Show full text]
  • Ethical and Professional Responsibilities of Attorneys Assigned by the Office of the State Public Defender
    ETHICAL AND PROFESSIONAL RESPONSIBILITIES OF ATTORNEYS ASSIGNED BY THE OFFICE OF THE STATE PUBLIC DEFENDER Summary Below is a summary of Montana’s rules of professional conduct which apply to all attorneys and guide attorney conduct. The Montana Supreme Court has exclusive jurisdiction over matters involving the conduct and disciplining of attorneys. The Rules of Professional Conduct. Competent Representation. An attorney must provide competent representation which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Obligations in Criminal Cases. An attorney in a criminal case must consult with the client and abide by the client’s decisions regarding what plea is to be entered and whether to have a jury trial, to testify, or to take an appeal. An attorney in a criminal case may not fail to represent a client who declines a plea agreement and goes to a jury trial. Client’s Objectives. An attorney must take all reasonable steps necessary to meet the client’s objectives. However, the attorney cannot assist in the presentation of false evidence or violate the law. Reasonable Diligence and Promptness. A lawyer must act with reasonable diligence and promptness, and an attorney’s workload must be controlled so that each matter can be handled competently. Communication. A lawyer must communicate and keep the client reasonably informed about the case and promptly comply with requests for information. Clients with Diminished Capacity. An attorney must, as far as reasonably possible, maintain a normal attorney-client relationship with a client with diminished capacity, whether due to age, mental impairment, or other reason.
    [Show full text]
  • Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available
    Advertising, Solicitation and the Profession's Duty to Make Legal Counsel Available In recent years there has been a growing awareness of the importance of access to the courts in a functioning democracy.' As part of this trend, restrictions on advertising and solicitation by lawyers have come under serious attack.2 To date, however, these restrictions have been eased only to a limited degree and for only a tiny percentage of the bar.3 This Note will argue that current prohibitions upon advertising and solicitation imposed by the organized bar constitute an indefen- sible curtailment of essential information which violates the First Amendment. It will propose a new Canon 2 to the Code of Professional Responsibility which removes nearly all restrictions and conforms to constitutional requirements. Finally, the likely impact of such a revi- sion upon the structure of the legal profession will be explored. I. The Problem With Current Restrictions A. The Rules Against Advertising and Solicitation Although commentators have tied prohibitions on advertising and solicitation 4 to the historical animus against "stirring up litigation",3 1. See, e.g., Boddie v. Connecticut, 401 U.S. 371 (1971) (access to courts may not be denied to indigents who cannot pay court fees and costs of a divorce); Griffin v. Illinois, 351 U.S. 12 (1956) (state may not use the requirement of a transcript beyond the means of the defendant to block access to appellate review). See also California Motor Transport Co. v. Trucking Unlimited, 92 S. Ct. 609, 612 (1972) (the Sherman Act cannot, consistent with First Amendment guarantees, be interpreted as prohibiting the use of courts to promote economic and business interests in the absence of sham).
    [Show full text]