PR ATTACK OUTLINE

First things first, who do you owe duties to?

 The court
 Current client (FD, loyalty, care, confidentiality)
o Individual or entity (or both)
 Former client (loyalty and confidentiality)
o Individual or entity (or both)
 Your firm (fiduciary duties, confidentiality)
 Prospective client, even if they didn’t hire you (confidentiality)
 The person who hired you/pays you (i.e. insurers/insured)
 Third party your client has invited to rely on you (i.e. opinion letter)
 Third party you invited to rely on you (i.e. making representations in negotiations)
 Third party that you know your client intends to benefit from your services (i.e. will beneficiary)
 Third party due to your client’s status as one who acts on behalf of (or for the benefit of) that party (i.e.
trustees, guardians/wards)
 Co-defendants in a JDA with your client (only duty of confidentiality)
 The public/the state, if you’re a prosecutor
 Class members (named and absent)
 Third party from whom you received confidential information (confidentiality)

What duties do you owe?

 Duty of Care (requires competence)
 Duty of Loyalty (fiduciary duty to act in client’s best interests; think agency principles)
 Duty of Confidentiality (cannot use or disclose info belonging to your client)

How will your actions affect each party?

Causes of Action Against Attorneys

 Claims that a lawyer broke a promise sound in contract
 Claims that a lawyer performed incompetently sounds in negligence (duty of care violation)
 Claims that a lawyer was disloyal sounds in breach of fiduciary obligations
 Legal malpractice when attorney engages in misconduct that results in an adverse judgment for his client
 All claims that ordinary citizens are subject to (i.e. fraud, aiding and abetting)

INSURERS / INSUREDS
 All courts agree that the attorney’s paramount duties are ALWAYS to the insured
 However, some courts assume that the attorney represents both the insured and the insurer, but where
their two interests diverge, the attorney must protect the insured’s interests
o For instance, if a settlement is in the insured’s best interest, the attorney must advise the insured
to settle (even if it would be better for the insurer if the case went to trial)
 When there is an apparent potential conflict between the insured and insurer’s interests up front (i.e. if
there’s a possibility that the claims aren’t covered under the insurance plan but this defense or claim is
not in the best interests of the insured), the insurer will usually issue a “reservation of rights” letter
which basically recognizes the insurer’s duty to defend, but notes that the insurer believes it may have
some defenses to coverage (i.e. insured’s conduct was intentional)

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 o The reservation of rights letter says the insurer is willing to litigate the coverage issue later if
necessary
o The reservation of rights letter put attorneys in a bind, but his primary duties are to the insured
 Sometimes insurance companies will hire and pay for independent counsel of the
insured’s choice to avoid potential conflicts of interest
 MRPC 5.4(c) states that a lawyer shall not permit someone who pays the lawyer
(i.e. the insurer) to interfere w/ the lawyer’s exercise of independent professional
judgment in rendering legal services

Miscellaneous Points
 If an attorney has authority to act and fails to do so, or screws up something he had the authority to do
correctly, the attorney’s actions will be IMPUTED to the client (client suffers)
o Client can recoup damages from the attorney (not the court)
 If an attorney does something, which he does NOT have the authority to do (i.e. enter settlement w/o
talking to client) the attorney’s actions will NOT be imputed to the client
o Unless the client fails to timely object to the error or ratifies the attorney’s conduct
 An attorney representing an entity as such does NOT owe any duties to its shareholders
 Be wary of situations where a husband and wife are involved b/c they won’t always be joint clients –
this means that one spouse’s presence while the other is communicating w/ the atty will break the
attorney client privilege if both spouses are not clients
 Even though MRPC 8.3 requires attorneys to report misconduct of which they are aware, they cannot
report it if the only reason they are aware of such conduct is because of confidential communications w/
their client (MRPC 1.6 trumps 8.3)
o If a client tells his lawyer that another attorney has engaged in misconduct, this probably isn’t
enough to find that the lawyer “knows” about the misconduct – court would want to see some
other evidence supporting the client’s assertion