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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.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Pennsylvania Legal Ethics

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary:

1.4:101      Model Rule Comparison

In 1987, the Commonwealth of Pennsylvania adopted the exact language of MR 1.4 including the commentary thereto.

1.4:102      Model Code Comparison

This Rule has no direct counterpart in the Disciplinary Rules of the Code. DR 6-101(A)(3) provides that a lawyer shall not "Neglect a matter entrusted to him." DR 9-102(B)(1) provides that a lawyer shall "Promptly notify a client of the receipt of his funds, securities, or other properties." EC 7-8 states that "A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." EC 9-2 states that "a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client."

1.4:200   Duty to Communicate with Client

Primary Pennsylvania References: PA Rule 1.4(a)
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA 31.501, ALI-LGL 31, Wolfram 4.5, 4.6

Settlement offers-- in general.

A subordinate attorney has a duty to communicate a settlement offer to his client despite a senior attorney's instruction to decline it. Phila. B. A. Prof. Guid. Comm., PA Eth. Op. 94-25, (1994). See also, PA-R 5.2 which expressly provides that a lawyer is bound by the Rules even when the lawyer acts at the direction of another person.

Settlement offers and malpractice liability.

Consistent with ordinary skill and knowledge, it is incumbent upon attorney to communicate all settlement offers to clients and to investigate offers that were proposed, and failure to do so constituted malpractice. Rizzo v. Haines (1989); cf. Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick (1991) (in view of state policy favoring settling litigation, former client's claim of lawyer's negligence in settling claim in behalf of client is barred unless client can show actionable fraud by lawyer).

Corporate entity.

If representing a corporation that requires the approval of its three principals in order to bring litigation, direct communication with all three principals is required even when the proposed litigation is being brought by two of the principals against the other. Phila. B. A. Prof. Guid. Comm., PA Eth. Op. 95-16 (1995).

1.4:300   Duty to Consult with Client

Primary Pennsylvania References: PA Rule 1.4(b)
Background References: ABA Model Rule 1.4(b), Other Jurisdictions
Commentary: ABA/BNA 31.501, ALI-LGL 31, Wolfram 4.5

An attorney has a duty to consult with a client when the client's actions may cause the attorney to engage or assist in conduct which is fraudulent or illegal. Pa. Eth. Op. 96-162 (1996). The attorney must explain that he or she can not further the fraudulent or illegal conduct and that the attorney may be forced to withdraw if the client does not cease the conduct. Id.

1.4:400   Duty to Inform the Client of Settlement Offers

Primary Pennsylvania References: PA Rule 1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA 31.501, ALI-LGL 31, Wolfram 4.5

Settlement offers-- in general.

A subordinate attorney has a duty to communicate a settlement offer to his client despite a senior attorney's instruction to decline it. Phila. B. A. Prof. Guid. Comm., Pa. Eth. Op. 94-25, (1994). See also, PA-R 5.2 which expressly provides that a lawyer is bound by the Rules even when the lawyer acts at the direction of another person.

Settlement offers and malpractice liability.

Consistent with ordinary skill and knowledge, it is incumbent upon attorney to communicate all settlement offers to clients and to investigate offers that were proposed, and failure to do so constituted malpractice. Rizzo v. Haines (1989); cf. Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick (1991) (in view of state policy favoring settling litigation, former client's claim of lawyer's negligence in settling claim in behalf of client is barred unless client can show actionable fraud by lawyer).