End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Connecticut Legal Ethics
1.2:100 Comparative Analysis of Connecticut Rule
Primary Connecticut References: CT Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:
Connecticut Commentary:
1.2:101 Model Rule Comparison
There are several differences between Conn.
Second, the Conn.
1.2:102 Model Code Comparison
Although paragraph (a) of Conn.
Additionally, EC 7-8, provided greater guidance in terms of client consultation than does paragraph (a) of Conn.
Paragraph (b) of Conn.
Paragraph (c) of Conn.
Paragraph (d) of the Conn.
Paragraph (e) parallels several Model Code provisions. First, DR 7-102(A)(7) provided that a lawyer shall not "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." Second, DR 7-102(A)(6) provided that a lawyer shall not "participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." Third, DR 7-106(A) instructed a lawyer not to "advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal . . . but he may take appropriate steps in good faith to test the validity of such rule or ruling." Fourth, EC 7-5 provided that a lawyer "should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor." Lastly, DR 2-110(C)(1)(c) provided that a lawyer may not request permission to withdraw in matters pending before a tribunal unless his client, "[i]nsists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules."
1.2:200 Creating the Client-Lawyer Relationship
Primary Connecticut References: CT Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:
Connecticut Commentary:
1.2:210 Formation of Client-Lawyer Relationship
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:220 Lawyer's Duties to Prospective Client
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:230 When Representation Must Be Declined [see 1.16:200-230]
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:240 Client-Lawyer Agreements
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:250 Lawyer's Duties to Client in General
In the case of Schult v. Schult, 241 Conn. 767, 699 A.2d 134 (1997), the court addressed the issue of whether a child's attorney may advocate a position that is contrary to that of the guardian ad litem. See id. at 669. The guardian ad litem, plaintiff and amicus curiae argued that when a child is represented by both an attorney and a guardian ad litem in a custody dispute, "the guardian ad litem becomes the attorney's client," and that, as a client, the guardian ad litem makes the decisions on behalf of the child. . . ." Id. at 776-77. Consequently, they argued that Rules 1.2 and 1.14 of the Conn. Rules of Professional Conduct require counsel to advocate for the position of the guardian ad litem. Id. at 782. The court, however, disagreed. The court reasoned that "the rules neither contemplate nor answer the problem posed in the present case," and therefore the rules do not require such action in every case. Id.
In the case of Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363 * 7 (Conn.Super. July 17, 2001), grievance proceedings were initiated against plaintiff's counsel for, among other things, failing to communicate settlement offers to her clients. The court held that because the attorney had failed to communicate either of the two offers and failed to provide any plausible justifications for the omissions, such violations were in violation of Rules 1.2 and 1.4. See id.
1.2:260 Client's Duties to Lawyer
Connecticut Ethics Informal Opinion 92-26 (1992), noted that both the attorney and the client shoulder responsibilities while navigating through the legal process. The Committee stated that, although the Rules of Professional Conduct only address the duties which attorneys have to their clients and to the public, duties that a client owes to her attorney "clearly exist." The Committee stated that a client has ultimate authority to determine the purposes, or "objectives" to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. At the same time, however, "a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so." Therefore, the Committee concluded that based upon these realities, "[a] clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking," with responsibilities shouldered by both the client and the attorney.
1.2:270 Termination of Lawyer's Authority
Termination by the Client
"It is fundamental that an attorney has no right to substitute his or her judgment for that of the client with respect to the duration of litigation." Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363 * 7 (Conn.Super. July 17, 2001). In the Conn. Superior Court case of Sullivan v. Town of Monroe, the court held that the defendant attorney's conduct of explicitly flouting the instructions of her clients was calculated and willful and clearly violated Rule 1.2 and Rule 1.16. Id. The court determined that after the trial court had granted the defendant's motion to dismiss two of the counts of their complaint, the Sullivans advised their attorney, by several separate means of communication, that they no longer wished to pursue the action. The court found that they not only wanted to cease pursuing the action, but "they made it unambiguously clear that they intended to forbid [their attorney] to file any further pleadings, especially any motion to reargue [the prior decision]." Id. at *6. However, the Sullivans' attorney filed a total of thirty-five "pleadings" after she had been instructed not to. In her defense the Sullivans' attorney attempted to characterize the Sullivans decisions as "confused, stupid, [and] foolish," and a result of defense counsel's badgering. The court, however, disagreed and found a clear violation of rule 1.2.
Termination by the lawyer
In the case of Matza v. Matza, 226 Conn. 166, 627 A.2d 414 (1993), the Court held that the due process clause does not entitle a client to an evidentiary hearing on an attorney's motion to withdraw if attorney reasonably believes that continued representation would require a breach of the Rules of Professional Conduct. Id. at 184-85.
1.2:300 Authority to Make Decisions or Act for Client
Primary Connecticut References: CT Rule 1.2(a)
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary:
Connecticut Commentary:
1.2:310 Allocating Authority to Decide Between Client and Lawyer
Generally, a lawyer has a great deal of flexibility in making decisions regarding the direction of litigation. There are, however, certain issues of which the client has ultimate control. Specifically, after consultation with the lawyer, the lawyer shall abide by the decision as to a plea to be entered, whether to waive jury trial and whether the client will testify. See Conn. Rules of Professional Conduct,
1.2:320 Authority Reserved to Client
In Laws v. Warden, No. 00709, 1990 WL 283684 (Conn.Super. Sept. 21, 1990), the Superior Court held that "the decision on whether or not a defendant is to testify at trial is not within the parameters of choice or trial strategy left within the discretion of trial counsel." Id. at *1. The court reasoned although the United States Supreme Court has not specifically held that an accused in a criminal case has a right to testify in his or her own defense, the Conn. Rules place the choice specifically in the hands of the accused. See id. at 2 (citing Rock v. Arkansas, 483 U.S. 44 (1987)); see also A.B.A. Standards for Criminal Justice, standard 4-5.2 (stating that after consulting with counsel, the decision whether to testify is a decision that should be made by the accused.)
In re: Grievance Proceeding, 171 F.Supp.2d 81 (D. Conn. 2001), dealt with the propriety of an agreement between a lawyer and his client which took all authority away from the client concerning settlement. Id. at 82. Specifically, the agreement: (1) delegated counsel complete discretion with respect to any settlement offer; (2) authorized counsel to reject settlement offers in counsel's sole discretion; (3) waived any requirement that counsel communicate such settlement offer(s) to the client. Id. The court held that, "[t]he complete surrender of settlement authority to a lawyer [is] expressly prohibited in Connecticut." Consequently, the court found that such a contract was a violation of Rule 1.2. It reasoned that "[i]mplicit in Rule 1.2(a) . . . is both a requirement to communicate all settlement offers to the client and a requirement that the client be permitted to decide whether to accept or not to accept any such offer." Id. at 84.
Informal Opinion 93-15 (1993), addressed the issue of whether an attorney has an ethical responsibility to supply new releases of attachments which his former client refused to authorize. The attorney in this case represented a client as plaintiff in a lawsuit and placed five attachments on a property owned by the defendant. Pursuant to the settlement of the case, the attorney provided the defendant's initial attorney with releases for each of the five attachments. Subsequently, a new attorney for the defendant requested that the plaintiff's attorney provide duplicate releases. The basis for the request is that the initial attorney for the defendant, who received the releases, refuses to turn them over to the defendant because of a fee dispute. When the attorney informed his former client of the request, he instructed the attorney not to issue new releases. Based upon these facts, the Committee advised that, "[i]n the absence of an affirmative duty to issue the new releases, the attorney is without authority to do so in the face of the explicit direction of the former client."
The Committee, in Informal Opinion 89-10 (1989), strongly advised that the "[u]nauthorized investment of clients' money is prohibited by Rules 1.2 and 1.15." It reasoned that Rule 1.2 requires the lawyer to abide by the client's decisions concerning the objectives of representation and to consult with the client as to the means by which they are to be pursued. Therefore, the Committee concluded that "when the lawyer is properly advising the client on investment matters, the client must ultimately decide the investment objectives, and must authorize the lawyer to make the investments."
1.2:330 Authority Reserved to Lawyer
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:340 Lawyer's Authority to Act for Client
When a defendant chooses to flee prosecution, and defendant's attorney is forced to continue the trial, with the client in absentia, defendant may not claim ineffective assistance of counsel if certain alibi witnesses are not called. See Tyler v. Warden, No. 0000279, 1990 WL 272096 at *4 (Conn.Super. April 24, 1990). In the case of Tyler v. Warden, defendant filed a writ of habeas corpus claiming illegal confinement arising out of ineffective assistance of counsel. Specifically, he alleged that trial counsel was ineffective because, among other things, he failed to call alibi witnesses to testify at the trial. The court, however, disagreed with the allegation. The court noted that, after two days of trial, the petitioner fled the jurisdiction and at that time, no decision had been made regarding whether or not to call either or both of the two alibi witnesses. The court reasoned that, "[w]hile counsel was willing to allow petitioner to make this decision . . . when the petitioner removed himself from the trial what had been a joint undertaking of counsel and his client became the sole responsibility of counsel." Therefore, the court held that although defense counsel chose not to call the alibi witnesses, "he was discharging his professional responsibility for the conduct of the case." Id.
Lawyer's Authority to Act for Client When Client is Absent
Informal Opinion 98-21 (1998), dealt with an attorney's authority to settle a client's claims whom she can not find, even after a diligent search. The Committee stated that, in the absence of explicit or implicit authority to settle, Rule 1.2 is clear in prohibiting a lawyer to accept a settlement offer. The Committee noted that Rule 1.2 states, "[a] lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter." Consequently, the Committee concluded by stating that, "[t]he logical implication of this rule is that [an attorney] cannot settle [a] client's claim against third parties without the client consenting to the settlement." See also Informal Opinion 99-48 (1999).
Informal Opinion 93-2 (1993), addressed the issue of whether it is ethically appropriate to settle a personal injury case for a client who is currently a fugitive. The Committee stated that, "while there is nothing inherent in the attorney-client relationship that creates such an authority, a case may be settled where the client has given the attorney authority, either directly or by implication, to settle the case without the client's involvement." The Committee noted that in this case the client specifically requested that the attorney settle the personal injury claim, and therefore there would be no violation to do so.
1.2:350 Lawyer's Knowledge Attributed to Client
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:360 Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:370 Appearance Before a Tribunal
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:380 Authority of Government Lawyer
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:400 Lawyer's Moral Autonomy
Primary Connecticut References: CT Rule 1.2(b)
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram γ 10.4
Connecticut Commentary:
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:500 Limiting the Scope of Representation
Primary Connecticut References: CT Rule 1.2(c)
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA γ 31:301, ALI-LGL γ 19, Wolfram γ 5.6.7
Connecticut Commentary:
1.2:510 Waiver of Client or Lawyer Duties (Limited Representation)
In Informal Opinion 95-24(1994), the Committee advised that it would be unethical for an attorney to enter into a retainer agreement which reserves to the attorney the option of withdrawing from representation of the client if the client refuses to accept a settlement recommended by the lawyer. The Committee noted that, although "Rule 1.2(c) gives the lawyer the right to limit the objectives of the representation if the client consents after consultation . . . , an agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law, and a client may not be asked to agree to representation so limited in scope as to violate Rule 1.1 (Competence)."
1.2:600 Prohibited Assistance
Primary Connecticut References: CT Rule 1.2(d)
Background References: ABA Model Rule 1.2(d), Other Jurisdictions
Commentary:
Connecticut Commentary:
1.2:610 Counseling Illegal Conduct
Informal Opinion 01-13 (2001), addressed the issue of whether a lawyer has an obligation as legal counsel, in connection with a client's continuing failure to file a federal income tax return. The Committee advised that although a lawyer may not knowingly assist a client in criminal or fraudulent conduct, "there is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity." The Committee, however, also noted that, "a lawyer should not participate in a sham transaction . . ." and concluded by stating, "[an attorney is] nevertheless required to comply with whatever the law, including the Internal Revenue Code, imposes as an obligation."
Informal Opinion 91-22 (1991), dealt with the question of whether an attorney may ethically recommend that his client transfer his assets to his wife in order to make himself judgment proof. The Committee advised that based upon Rules 1.2(d) and 4.4, "a lawyer may not counsel or assist a client to engage in a fraudulent transfer that the lawyer knows is either intended to deceive creditors or that has no substantial purpose other than to delay or burden creditors."
1.2:620 Assisting Client Fraud
Informal Opinion 93-2 (1993), addressed the issue of whether an attorney can or should forward settlement proceeds to a fugitive client. The Committee noted that, while, "[p]roviding an honest opinion regarding the consequences likely to result from the client's conduct is permissible, activity that encourages or furthers the client's criminal or fraudulent conduct is not." The Committee, however, further noted that Rule 1.15(b) requires an attorney to, "promptly deliver to the client . . . any funds or other property that the client...is entitled to receive . . . ." Therefore, in light of the interplay between these two Rules, the Committee stated that it would not be a violation to deliver funds rightfully belonging to a client, even if it has the unintended effect of aiding a fugitive.
1.2:630 Counseling About Indeterminate or Uncertain Law
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:700 Warning Client of Limitations on Representation
Primary Connecticut References: CT Rule 1.2(e)
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA γ 31:301, ALI-LGL γ 105
Connecticut Commentary:
1.2:800 Identifying to Whom a Lawyer Owes Duties
Primary Connecticut References: CT Rule 1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:
Connecticut Commentary:
1.2:810 Prospective Clients [see 1.2:220]
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:820 Persons Paying for Representation of Another [see 1.7:400]
Informal Opinion 97-37 (1997), dealt with the following factual situation: An attorney was defending a client against a claim based on a slip and fall incident which occurred on premises within the possession and control of the client. An independent contractor hired by the client/defendant performed snow and ice removal services, and sanded and salted the premises after a snow storm which occurred prior to the incident upon which the claim is based. The client expressly directed his attorney not to file any apportionment or indemnification claims against the independent contractor, despite the attorney's recommendation that the client file such claims. The insurer covering the client's liability for the incident and paying for the legal representation, however, directed the attorney to contravene the instructions of his client, and to file an apportionment and indemnification claim against the independent contractor. The attorney wishes to abide by the client's wishes, but is questioning whether she also has an obligation to the third party.
In making its recommendation, the Committee first stated that in "the context of a civil case such as the one outlined here, we view the decision to join a third party in a pending action as "concern for third persons who might be adversely affected," and therefore primarily an issue of objectives and not means. (quoting Comment to Rule 1.2). The Committee noted "parties involved in litigation have concerns that go beyond the mere minimization of their liability as defendants or maximization of their recovery as plaintiffs. In situations where existing legal rights or theories might provide the opportunity for parties to join close friends, business associates, or family members as defendants or third party defendants, a litigant must be able to retain ultimate control over which parties to join so that he is free to seek only those legal objectives that advance or do not threaten important non-legal objectives." Consequently, the Committee advised that an attorney would be abiding by the spirit of Rule 2.1 if she followed her client's wishes not to join the third party.
1.2:830 Representing an Entity [see also 1.13:200]
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:840 Representing a Fiduciary [see also 1.13:520]
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
1.2:850 Class Action Clients
There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.
