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Abstract:
Many are the court opinions stating that attorneys are agents of their clients. Traditional agency law allows principals to be responsible for actually and apparently authorized acts of an agent. Thus, one would expect courts to hold client principals responsible for authorized acts of agent attorneys. This article illustrates that some courts have exhibited significant reluctance to so hold, however. In the context of liability for torts such as abuse of process committed by attorney agents, some courts do not recognize traditional agency bases of client liability. Also, in the context of settlement, many courts do not apply traditional agency law in a traditional manner. Finally, in the context of waiver of the attorney-client privilege, some courts do not apply traditional agency principles. In each of these situations the courts deviate from traditional law to protect the client principal from liability that might otherwise occur as a result of the agency relationship. Courts appear troubled by viewing the relationship of lawyers and clients as a run-of-the-mill agency relationship. At the very least courts appear reluctant, in a paternalistic or maternalistic way, to hold a client responsible for an attorney's actions. This article concludes that such additional protection for clients is unnecessary in today's world of empowered clients. While there is no doubt that the relationship of attorney and client is a unique agency relationship, this relationship requires no special rules; the client neither deserves nor requires to be treated differently. Such a stance is more appropriate in today's environment in which user's of legal services are, in general, more sophisticated about the services provided by attorneys, and in many situations, intimately involved in the decisions made regarding the legal representation.

Attorney Professional Responsibility, Lawyer-Client Relationship, Agency

Abstract:
A plaintiff, acting through his or her attorney, sues a defendant claiming that the defendant breached a contract or committed medical malpractice. Because the attorney has a lead role in the judicial system and the particular litigation, the defendant justly may develop a healthy dislike for the plaintiff's attorney. For the defendant, the plaintiff's attorney often is the embodiment of what the defendant feels is a bogus lawsuit. In addition, the zeal with which the plaintiff's attorney pursues the claim may cause the defendant to believe that the plaintiff's counsel is particularly evil. If the plaintiff's case ultimately fails, it is at least understandable that the defendant might want to take steps to get even. The torts of wrongful initiation of civil proceedings and abuse of process sit at the ready for such an aggrieved defendant. Lawyers should not live in fear of these torts, however, because they are extremely difficult to establish against anyone and especially against lawyers.

professional responsibility, ethics, abuse of process, malicious prosecution, wrongful use of process

Abstract:
The basic ethics rules regarding fees are simple. The fee must be reasonable. The rules specify process and disclosure requirements to ensure that the client understands the fee. In the process of collecting the fee, the attorney always must be mindful of the general rule which states that a lawyer must not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Occasionally, attorneys who bill by the hour run afoul of these rules. Unfortunately, the result is damage not only to the particular client, but to lawyers in general. This paper discusses some ethical pitfalls regarding billing.

professional responsibility, billing, attorney fees, honesty, rule 1.5, rule 8.4(c)

Abstract:
This article discusses the new rule of Professional Responsibility that allows lawyers to practice law in a jurisdiction in which the lawyer is not admitted.

Professional Responsibility, unauthorized practice of law, rule 5.5

Abstract:
The snapshot of the duress doctrine today is bothersome. Over and over again modern day courts struggle with defining the parameters of the doctrine. These courts state illogical or nonsensical tests for application of the doctrine and then apply the tests conclusorily or with implausible or impossible explanation of rationale. Not surprisingly, the courts manifest a complete inability or unwillingness to apply the doctrine to the facts in any sort of reasoned way. The result is a complete failure of the duress doctrine. First, courts rarely find duress or even make a decision in favor of finding duress. In addition, the decisions of the courts are extraordinarily valueless as precedent; they provide virtually no instruction as to application of the doctrine. Because the courts have not had the benefit of the guidance a clearly articulated standard provides, they have been forced to render analysis-free, result-oriented decisions. In addition, the results courts have often chosen, a finding of no duress and thus enforcement of the contract, is an example of double-dipping at the well of freedom of contract public policy. Not only has the value of the freedom of contract been weighed in defining the parameters of the duress doctrine narrowly, but also the courts have given weight to the freedom of contract when evaluating the particular facts of each case. The premise of this Article is that the duress doctrine can serve the valuable goal of protecting the concept of voluntary action in entering into bargains. No doctrine can ensure perfect voluntariness, but the duress doctrine can be a tool to condemn situations in which choice is particularly egregiously constrained. The doctrine and the courts applying it must not be expected to do too much, however, nor can the doctrine's application be too complex.

Contracts, Duress, Avoidance Doctrines

Abstract:
May an attorney enter into an agreement settling a client's matter if that agreement in some way restricts the attorney's right to practice? For example, as part of a settlement of a client's legal claim, could an attorney agree to not represent other clients against the same defendant? Could an attorney agree to not use information gained in the representation? Could an attorney agree not to solicit clients who might have a claim against the defendant? Could an attorney agree to represent or serve as a consultant to the defendant in the future?

Professional Responsibility, right to practice, settlement agreements, rule 5.6

Abstract:
This is a short piece geared to practitioners but also discusses a case that may be of interest to professors of professional responsibility. In the case of Brown v. Commonwealth, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has provided trial courts and lawyers, especially criminal lawyers, with some much needed ethical guidance. While the case itself was a criminal appeal, not an attorney discipline matter, the Court's opinion provides insight into the ethical sticky wicket of the proper conduct of the lawyer for a criminal defendant when the defendant intends to commit perjury. Such a situation pits the constitutional rights of criminal defendants against the ethical duties of defense counsel to act with candor to the court.

Professional responsibility, ethics, rule 3.3, perjury, client testimony

Abstract:
Lawyers rely on all sorts of assistance in practicing law. Law offices teem with paralegals, secretarial assistants, runners, investigators, student law clerks and such. Two questions often arise regarding these nonlawyer employees. First, for purposes of ethics, to what extent is the lawyer responsible for the actions of the nonlawyer employees? Secondly, can nonlawyer employees create conflict of interest problems for the employing attorney?

professional responsibility, ethics, rule 5.1, rule 5.3, paralegals, nonlawyer employees

Abstract:
Occasionally, when I am dealing with the issue of nonrefundable fees in the law school course of Professional Responsibility, a student will tell me that a certain fee in a certain case is not refundable because the attorney told the client that the fee was nonrefundable. The issue of whether a fee paid to an attorney is refundable is a bit more complex than simply looking to the attorney's label. A client is not barred from recovering a part of a legal fee just because an attorney identifies it as nonrefundable to a client. Rather, the substantive nature of the client's payment determines whether the client's payment is refundable. Even so, many clients may be misled by the label used by attorneys and may not realize that they are entitled to recover at least some of the so-called nonrefundable fee. Much of the confusion in this area results from a very loose use of the terms, nonrefundable and retainer. Attorneys refer to payments as nonrefundable when the payments are, ultimately, refundable. Some practitioners who wrongly identify a fee as nonrefundable are, perhaps, bad actors who are intentionally trying to mislead clients. I speculate that most practitioners who wrongly identify a fee as nonrefundable simply do not understand the law of fees.

professional responsibility, lawyer fees, nonrefundable fees, fees, Model Rule 1.5

Abstract:
Attorneys find themselves entering into business transactions in general and contracts in particular with clients. Such transactions are subject to special rules as the result of the fiduciary nature of the attorney-client relationship and the supposed dominant powers of persuasion of attorneys. As one court has stated, Attorneys wear different hats when they perform legal services on behalf of their clients and when they conduct business with them. As to the latter, the law presumes the hat they wear is a black one. The constraints on business transactions with clients take two forms. First, the Rules of Professional Conduct contain specific requirements for any such transaction. Second, the law of contracts supplements the professional conduct standards by applying a presumption of undue influence to any contract between attorney and client other than the initial fee agreement.

Professional Responsibility, ethics, rule 1.8, undue influence

Abstract:
The issue of selective waiver of the attorney-client privilege has knocked around in the courts for at least thirty years, receiving, at best, a chilly reception. Lately, the issue has garnered even more attention. Last summer, the federal Advisory Committee on Evidence Rules put forth a new rule adopting selective waiver. The federal Judiciary's Committee on Rules of Practice and Procedure published this rule for public comment. The response to the proposed rule was "almost uniformly negative." As a result, the Advisory Committee on Evidence Rules, in the Spring of 2007, dropped the selective waiver language from the proposed rule. The Committee on Rules of Practice and Procedure and the Judicial Conference did not disagree. So, what does all this mean? What is happening here?

attorney-client privilege, selective waiver, waiver

Abstract:
Should Kentucky lawyers be required to report the misdeeds of other lawyers? Lawyers in forty-six states and the District of Columbia must report. Most of these jurisdictions have required lawyers to report the misdeeds of other lawyers since at least the 1970s. Until 1990 the ethics rules in effect in Kentucky required Kentucky lawyers to report the misdeeds of other lawyers. In contrast, the Kentucky Bar Association (KBA) Board of Governors has recommended to the Kentucky Supreme Court that it adopt an aspirational rule, not a rule requiring lawyers to report. This article examines the arguments in favor and against a mandatory reporting requirement for lawyers.

professional Responsibility, Rule 8.3, duty to report

Abstract:
When may a lawyer ethically serve as a witness in a matter in which the lawyer is also representing a client? This question arises when some part of a case involves communications that occurred between the lawyer and another party as would be true in a dispute about settlement discussions or a dispute relating to the negotiation of a contract. The attorney is a fact witness and thus a potentially important element in his or her client's matter. This article discusses the applicable rule of professional responsibility.

professional responsibility, ethics, rule 3.7, lawyer-witness

Abstract:
I often tell my students in Professional Responsibility class that a large portion of the material in the course boils down to the statement, Don't lie, cheat, or steal. In other words, do not act dishonestly. This article discusses this basic principal as it applies to all facets of a lawyer's life.

professional responsibility, ethics rule 8.4(c) honesty

Abstract:
Relationship agreements such as partnership agreements and employment agreements legally may contain restrictions on competition if the parties to the agreements are not lawyers. Covenants not to compete are recognized as a valid tool that can be used for the protection of otherwise vulnerable interests as long as the competition restriction is reasonable. The story is very different for restrictions involving lawyers. A lawyer cannot enter into an employment or other agreement if that agreement restricts the right of a lawyer to practice law. Thus, a typical covenant not to compete, if entered into by an attorney, whether the attorney is an in-house attorney or an attorney in a law firm, is unethical. An attorney entering into such an arrangement is subject to discipline.

Professional Responsibility, right to practice, rule 5.6