If Liability Is Limited, Written Notice to Your Client to Seek Independent Counsel Is Needed
ALM Media
Updated
I am a practicing trial lawyer and I constantly see my opponents write letters to the judge assigned to the case raising issues. These letters are always copied to myself or other opposing counsel. Where is the line for ex parte contact?
If liability is limited, written notice to your client to seek independent counsel is needed.
I have an active criminal defense practice and have a very good plea agreement for my client, but he has to waive any rights to appeal and any rights to claim my ineffectiveness. Can I allow that to happen?
The question is an interesting one. The pertinent rule, which has been discussed recently in an earlier article, is Pennsylvania Rule of Professional Conduct 1.8(h). That precludes a lawyer from making an agreement limiting the lawyer's liability to the client for malpractice unless the client is independently represented in making the agreement. The rule also precludes settling a claim for liability with a client in a legal malpractice case without giving the client written notice that they should seek independent counsel.
The question becomes is a waiver of the claim of ineffective assistance of counsel the same as signing a release in reference to a professional liability case? The question is really an interesting one. As criminal lawyers know, bringing a legal malpractice suit against a criminal lawyer for his criminal representation of a client, there first has to be a finding of ineffective assistance of counsel or else normally the legal malpractice suit will be dismissed. As a result, there is a close connection between a claim for ineffective assistance of counsel and the ability of a client to sue their criminal defense lawyer for legal malpractice.
If that's the case, it would appear that Rule 1.8(h) would be applicable and if a lawyer is going to have a client enter into a plea agreement in which there is a waiver of any right to claim ineffective assistance of counsel, the lawyer could not do so without first complying with the mandated Rule 1.8(h) and have the client seek independent counsel before the client is willing to waive their right under those circumstances.
The Pennsylvania Bar Association did issue an opinion cited as 2014-100, which adopted that concept.
Criminal defense lawyers have to be careful. Sometimes trying to aid a client and convince a client to do the right thing can create conflict, such as waiving claims of ineffective assistance of counsel. Sometimes conflicts of interest sneak up on a lawyer and they're not always recognized. Sometimes in the heat of litigation or resolving issues a lawyer can miss a potential conflict that can later come back to haunt the lawyer.
Rule 1.8(h) is an important rule to learn to remember. Any time a lawyer is trying to limit their liability in any fashion with a client, that rule appears to be triggered. The bottom line is if one is limiting liability, then the lawyer has to give written notice to the client to seek independent counsel.
Sexual relationships with a client are prohibited.
My law firm represents a major client. I discovered one of the partners is having a sexual relationship with the in-house counsel to that firm. Would that create a problem for the firm in continuing to represent the business?
The rule at issue is found at Rule 1.8(j) of the Rule of Professional Conduct. That rule notes a lawyer shall not have sexual relations with a client unless a consensual relationship existed between them before the client asked for legal representation. Therefore, if a lawyer has already been dating someone and then that person asks the lawyer to represent them, it would be OK. But, if the lawyer is representing a client and then started dating the client, that is prohibited by the rule. The comment to the rule is found in Comment 17, 18, and 19 to Rule 1.8. The comment notes the relationship between a lawyer and client is a fiduciary one. Because the relationship is unequal because the client can be exploited by the lawyer, a sexual relationship is prohibited. The Rule recognizes the lawyer's independence could be compromised and a conflict of interest could be created.
Of particular interest to the question is Comment 19. The comment notes when a client is an organization, the rule prohibits a lawyer for the organization from having a sexual relationship with a constituent of the organization who supervises, directs, or regularly consults with the lawyer concerning the organization's legal matters.
Therefore, Comment 19 would appear to prohibit a lawyer who is representing the organization from having a relationship with the general counsel to the organization. But, it should be noted that the prohibition is a personal one and does not apply to one's entire firm. Comment 20 to Rule 1.8 is entitled imputation of prohibitions. That comment notes as follows: "The prohibition set forth in Paragraph J (Rule 1.8j) is personal and is not applied to associated lawyers." (See Comment 20 to Rule 1.8 of the Rules of Professional Conduct.)
Therefore, if someone was having a relationship with a constituent of the organization the firm represents, then that lawyer would be barred from representing the organization, but other lawyers in the firm would not be prohibited.
Obviously, the better practice is not to have sexual relationships with one's clients or constituents of an organizational client. That is, of course, the goal. But, on the other hand, lawyers are human and Cupid does appear in odd circumstances. But, as a professional, a lawyer has to follow the Rules of Professional Conduct and those rules prohibit sexual relationships with a client or a constituent of an organizational client.
