proRo class 22

question: what purpose does rule 5.2 actually serve?
if there's a reasonable resolution of an arguable question, it's extremely improbable the supervising lawyer will be at fault (because if reasonable then there's no need for ethics rule, and if supervisor isn't going to be disciplined of course the associate lawyer won't be because he's removed from the situation)

if a question is solved by defrauding the client, then that's unreasonable.

but if it is reasonable, what is this rule?
 

for example, you have a vindictive client who brings you up on ethics charges because you didn't win for them. the charge will be dismissed out of hand if you were reasonable in your work. if not, you could go with rule 1.4 etc.

shouldn't lawyers be responsible for their misconduct regardless of whether they were following orders? we typically don't give non-lawyers a free pass if they break the law at the direction of some kind of authority figure.

more democracy, less homogeneity.... can the partner conclude that the results are sufficient to require closer supervision of the attorney's work, who should pay for that extra time that the associate spent working when the firm should have known that there were "issues"?

how effective and permissible is proactive restriction/ attempts to limit the risk? does the firm respond to men the same way to men who don't "fit the mold"? or is the firm's image of how a single woman should behave and dress a kind of gender bias? is this something where this woman is just having to be "beyond the pale"?


the 5.1 link: if the firm is on notice of evidence of inappropriate behavior, if this associate does make a mistake and then the firm/partners are taken up on ethics charges, it will be much easier for the client and the bar to make the case that this firm was on notice and did not have apporpriate supervisory rules. the firm is on notice of the potential. must the firm wait to act???


- ways to cover yourself: document events of speaking to this attorney.


barriers that states erect to prevent lawyers from one state from practicing in another in which they are not licensed. what we're dealing with: larger question of restrictions on the practice of/doing of legal work with regards to non-lawyers and limiting the work to those with the requisite credentials.


professional adjusters v. tandon.
plaintiff engaged in law practice simply by submitting a claim to the insurer, without any negotiation etc. the court wouldn't have gone the way it did if all plaintiffs did was to just get infrmation (that's what adjusters do) -- is the authority to negotiate a settlement what's at issue here, or do you agree with the court that simple negotiation is in the realm of legal work? what's so special about an insurance claim that puts it in the realm of legal work?


adjusters of the insurance company can bind the company with respect to settlement but individual claimants can't bind the company. the individual still must deal with the insurance company's adjuster or negotiate with a lawyer.


issues like this -- who it is that can/not practice law have become more pressing, especially since the recession because the anxiety has caused the legal profession to navelgaze a bit: lawyers have been given dire warnings about outsourcing for years, and its begun to seem clear that the old ways of doing things with large leveraged law firms/ paying junior associates so much could not survive any longer in a world of enforced austerity.


richard suskin has gotten press lately for "the end of lawyers rethinking legal services" which is about the end of live legal services.


*** when sally left harry ***
from harry's point of view if there's an not insignificant risk that sally will prevail, he would be waise to negotiate. sally has a right to make that decision ethically under rule 1.2(a).

any conflict like this can make the client dubious of the conflicted lawyer. there will be questions such as did adam fail to raise the inheritance issue to not antagonize other, more powerful clients/ potential clients?

can also make a 1.7(a)(1) argument

sally wants to oppose. is that a problem? what kind of problem is it?
rule 1.7(a)(2)
what's the conflict? how do we get to the lawyer and to 1.7(a)(2) without imputing him?
we would have to say that because of 1.10(a), his behavior is imputed by the conflict.
but still, what is the conflict that the client has? depends on the nature of the partnership agreement.

what type of rule 1.7(a)(2) conflict do we have when the lawyer is making the same argument now that he was making for a former client?
if the lawyer gets up in front of the court and argues the opposite position of what he fought for in the previous litigation, that could be a question of professional integrity. the lawyer may not want to argue the exact opposite position to now counter the last position. assuming that is a conflict, does it impute?