THE AMERICAN LAW INSTITUTE. A Concise Restatement LAWYERS. Compiled. VINCENT R. JOHNSON Professor of Law St. Mary's University School of Law.
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1 AUG THE AMERICAN LAW INSTITUTE A Concise Restatement of THE LAW GOVERNING LAWYERS Compiled by VINCENT R. JOHNSON Professor of Law St. Mary's University School of Law and SUSAN SAAB FORTNEY George Mahon Professor Texas Tech University School of Law ST. PAUL,MN AMERICAN LAW INSTITUTE PUBLISHERS 2007 Mat #
2 TABLE OF CONTENTS Introduction CHAPTER 1. REGULATION OF THE LEGAL PROFESSION TOPIC 1. REGULATION OF LAWYERS-IN GENERAL Section 1. Regulation of Lawyers-In General... 4 TOPIC 2. PROCESS OF PROFESSIONAL REGULATION TITLE A. ADMISSION TO PRACTICE LAW 2. Admission to Practice Law TITLE B. AUTHORIZED AND UNAUTHORIZED PRACTICE 3. Jurisdictional Scope of the Practice of Law by a Lawyer Unauthorized Practice by a Nonlawyer TITLE C. PROFESSIONAL DISCIPLINE 5. Professional Discipline TOPIC 3. CIVIL JUDICIAL REMEDIES IN GENERAL 6. Judicial Remedies Available to a Client or Nonclient for Lawyer Wrongs Judicial Remedies Available to a Lawyer for Client Wrongs 23 TOPIC 4. LAWYER CRIMINAL OFFENSES 8. Lawyer Criminal Offenses TOPIC 5. LAW-FIRM STRUCTURE AND OPERATION TITLE A. ASSOCIATION OF LAWYERS IN LAW ORGANIZATIONS 9. Law-Practice Organizations-In General TITLE B. LIMITATIONS ON NONLAWYER INVOLVEMENT IN A LAW FIRM 10. Limitation n Nonlawyer Involvement in a Law Firm TITLE C. SUPERVISION OF LAWYERS AND NONLAWYERS WITHIN AN ORGANIZATION 11. A Lawyer's Duty of Supervision Duty of a Lawyer Subject to Supervision vii
3 Section TABLE OF CONTENTS TITLE D. RESTRICTIONS ON THE RIGHT TO PRACTICE LAW 13. Restrictions on the Right to Practice Law CHAPTER 2. THE CLIENT-LAWYER RELATIONSHIP TOPIC 1. CREATING A CLIENT-LAWYER RELATIONSHIP 14. Formation of a Client-Lawyer Relationship A Lawyer's Duties to a Prospective Client TOPIC 2. SUMMARY OF THE DUTIES UNDER A CLIENT-LAWYER RELATIONSHIP 16. A Lawyer's Duties to a Client-In General A Client's Duties to a Lawyer Client-Lawyer Contracts Agreements Limiting Client or Lawyer Duties TOPIC 3. AUTHORITY TO MAKE DECISIONS 20. A Lawyer's Duty to Inform and Consult with a Client Allocating the Authority to Decide Between a Client and a Lawyer Authority Reserved to a Client Authority Reserved to a Lawyer A Client with Diminished Capacity TOPIC 4. A LAWYER'S AUTHORITY TO ACT FOR A CLIENT 25. Appearance Before a Tribunal A Lawyer's Actual Authority A Lawyer's Apparent Authority A Lawyer's Knowledge; Notification to a Lawyer; and Statements of a Lawyer A Lawyer's Act or Advice as Mitigating or Avoiding a Client's Responsibility A Lawyer's Liability to a Third Person for Conduct on Behalf of a Client TOPIC 5. ENDING A CLIENTBLAWYER RELATIONSHIP 31. Termination of a Lawyer's Authority...: Discharge by a Client and Withdrawal by a Lawyer A Lawyer's Duties When a Representation Terminates viii
4 TABLE OF CONTENTS Section CHAPTER 3. CLIENT AND LAWYER: THE FINANCIAL AND PROPERTY RELATIONSHIP TOPIC 1. LEGAL CONTROLS ON ATTORNEY FEES 34. Reasonable and Lawful Fees Contingent-Fee Arrangements Forbidden Client-Lawyer Financial Arrangements Partial or Complete Forfeiture of a Lawyer's Compensation TOPIC 2. A LAWYER'S CLAIM TO COMPENSATION 38. Client-Lawyer Fee Contracts A Lawyer's Fee in the Absence of a Contract Fees on Termination TOPIC 3. FEE-COLLECTION PROCEDURES 41. Fee-Collection Methods Remedies and the Burden of Persuasion Lawyer Liens TOPIC 4. PROPERTY AND DOCUMENTS OF CLIENTS AND OTHERS 44. Safeguarding and Segregating Property Surrendering Possession of Property Documents Relating to a Representation TOPIC 5. FEE SPLITTING WITH A LAWYER NOT IN THE SAME FIRM 47. Fee-Splitting Between Lawyers Not in the Same Firm CHAPTER 4. LAWYER CIVIL LIABILITY TOPIC 1. LIABILITY FOR PROFESSIONAL NEGLIGENCE AND BREACH OF FIDUCIARY DUTY 48. Professional Negligence-Elements and Defenses Generally Breach of Fiduciary Duty-Generally Duty of Care to a Client Duty of Care to Certain Nonclients The Standard of Care Causation and Damages Defenses; Prospective Liability Waiver; Settlement with a Client ix
5 Section TABLE OF CONTENTS TOPIC 2. OTHER CIVIL LIABILITY 55. Civil Remedies of a Client Other Than for Malpractice Liability to a Client or Nonclient Under General Law Nonclient Claims-Certain Defenses and Exceptions to Liability TOPIC 3. VICARIOUS LIABILITY 58. Vicarious Liability CHAPTER 5. CONFIDENTIAL CLIENT INFORMATION TOPIC 1. CONFIDENTIALITY RESPONSIBILITIES OF LAWYERS TITLE A. A LAWYER'S CONFIDENTIALITY DUTIES 59. Definition of "Confidential Client Information" A Lawyer's Duty to Safeguard Confidential Client Information TITLE B. USING OR DISCLOSING CONFIDENTIAL CLIENT INFORMATION 61. Using or Disclosing Information to Advance Client Interests Using or Disclosing Information with Client Consent Using or Disclosing Information When Required by Law Using or Disclosing Information in a Lawyer's Self-Defense Using or Disclosing Information in a Compensation Dispute Using or Disclosing Information to Prevent Death or Serious Bodily Harm Using or Disclosing Information to Prevent, Rectify, or Mitigate Substantial Financial Loss TOPIC 2. THE ATTORNEY-CLIENT PRIVILEGE TITLE A. THE SCOPE OF THE PRIVILEGE 68. Attorney-Client Privilege Attorney-Client Privilege-"Communication" Attorney-Client Privilege-"Privileged Persons" Attorney-Client Privilege-"In Confidence" Attorney-Client Privilege-Legal Assistance as the Object of a Privileged Communication x
6 Section TABLE OF CONTENTS TITLE B. THE ATTORNEY-CLIENT PRIVILEGE FOR ORGANIZATIONAL AND MULTIPLE CLIENTS 73. The Privilege for an Organizational Client The Privilege for a Governmental Client The Privilege of Co-Clients The Privilege in Common-Interest Arrangements TITLE C. DURATION OF THE ATTORNEY-CLIENT PRIVILEGE; WAIVERS AND EXCEPTIONS 77. Duration of the Privilege Agreement, Disclaimer, or Failure to Object Subsequent Disclosure Putting Assistance or a Communication in Issue A Dispute Concerning a Decedent's Disposition of Property Client Crime or Fraud Lawyer Self-Protection Fiduciary-Lawyer Communications Communications Involving a Fiduciary Within an Organization TITLE D. INVOKING THE PRIVILEGE AND ITS EXCEPTIONS 86. Invoking the Privilege and Its Exceptions TOPIC 3. THE LAWYER WORK-PRODUCT IMMUNITY TITLE A. THE SCOPE OF THE LAWYER WORK-PRODUCT IMMUNITY 87. Lawyer Work-Product Immunity Ordinary Work Product Opinion Work Product TITLE B. PROCEDURAL ADMINISTRATION OF THE LAWYER WORK-PRODUCT IMMUNITY 90. Invoking the Lawyer Work-Product Immunity and Its Exceptions TITLE C. WAIVERS AND EXCEPTIONS TO THE WORK-PRODUCT IMMUNITY 91. Voluntary Acts xi
7 Section TABLE OF CONTENTS 92. Use of Lawyer Work Product in Litigation Client Crime or Fraud CHAPTER 6. REPRESENTING CLIENTS-IN GENERAL TOPIC 1. LAWYER FUNCTIONS IN REPRESENTING CLIENTS IN GENERAL 94. Advising and Assisting a Client-In General An Evaluation Undertaken for a Third Person TOPIC 2. REPRESENTING ORGANIZATIONAL CLIENTS 96. Representing an Organization as Client Representing a Governmental Client TOPIC 3. LAWYER DEALINGS WITH A NONCLIENT TITLE A. DEALINGS WITH A NONCLIENT-GENERALLY 98. Statements to a N onclient TITLE B. CONTACT WITH A REPRESENTED NONCLIENT 99. A Represented Nonclient-The General Anti-Contact Rule Definition of a Represented Nonclient A Represented Governmental Agency or Officer Information of a Nonclient Known to Be Legally Protected TITLE C. DEALINGS WITH AN UNREPRESENTED NON CLIENT 103. Dealings with an Unrepresented Nonclient TOPIC 4. LEGISLATIVE AND ADMINISTRATIVE MATTERS 104. Representing a Client in Legislative and Administrative Matters CHAPTER 7. REPRESENTING CLIENTS IN LITIGATION TOPIC 1. ADVOCACY IN GENERAL 105. Complying with Law and Tribunal Rulings Dealing with Other Participants in Proceedings Prohibited Forensic Tactics An Advocate as a Witness An Advocate's Public Comment on Pending Litigation xli
8 110. Frivolous Advocacy Disclosure of Legal Authority Advocacy in Ex Parte and Other Proceedings TOPIC 3. ADVOCATES AND TRmUNALS 113. Improperly Influencing a Judicial Officer A Lawyer's Statements Concerning a Judicial Officer Lawyer Contact with a Juror TOPIC 4. ADVOCATES AND EVIDENCE 116. Interviewing and Preparing a Prospective Witness Compensating a Witness Falsifying or Destroying Evidence Physical Evidence of a Client Crime False Testimony or Evidence CHAPTER 8. CONFLICTS OF INTEREST TOPIC 1. CONFLICTS OF INTEREST-IN GENERAL 121. The Basic Prohibition of Conflicts ofinterest Client Consent to a Conflict ofinterest Imputation of a Conflict of Interest to an Mflliated Lawyer Removing Imputation TOPIC 2. CONFLICTS OF INTEREST BETWEEN A LAWYER AND A CLIENT 125. A Lawyer's Personal Interest Mfecting the Representation of a Client Business Transactions Between a Lawyer and a Client A Client Gift to a Lawyer TOPIC 3. CONFLICTS OF INTEREST AMONG CURRENT CLIENTS 128. Representing Clients with Conflicting Interests in Civil
9 TOPIC 4. CONFLICTS OF INTEREST WITH A FORMER CLIENT 132. A Representation Adverse to the Interests of a Former Client A Former Government Lawyer or Officer TOPIC 5. CONFLICTS OF INTEREST DUE TO A LAWYER'S OBLIGATION TO A THIRD PERSON 134. Compensation or Direction of a Lawyer by a Third Person A Lawyer with a Fiduciary or Other Legal Obligation to a Nonclient.. ; Index
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