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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Delaware Legal Ethics
1.2 Rule 1.2 Scope of Representation
1.2:100 Comparative Analysis of Delaware Rule
DLRPC 1.2 does not have a directly comparable Model Code section. However, like the commentary to DLRPC 1.2, the Model Code distinguishes the lawyer’s decision-making authority in situations where a decision does not affect “the merits of the case” or impair the fundamental rights of the client, from situations where a fundamental right would be affected. EC 7-7, EC 7-8. Relevant to DLRPC 1.2(c) is DR 7-101(b)(1), which states that where permissible, a lawyer can “exercise his professional judgment to waive or fail to assert a right or position of his client.” The Code does not address the limitation of objectives of a client’s representation. However, there are a number of Model Code provisions that correspond to DLRPC 1.2(d). Among them are DR 7-102(a), which prohibits the counseling or assistance of a client in criminal or fraudulent conduct. Similarly, EC 7-5 prohibits assistance of a crime, or the counseling of clients on how to avoid penalties for criminal or fraudulent conduct.
1.2:200 Creating the Client-Lawyer Relationship
The existence of an attorney/client relationship “depends on the facts, circumstances, and findings in a particular case.” In re Berl, 540 A.2d 410, 414 (Del. 1988), appeal after remand, 560 A.2d 1009 (Del. 1989). The best evidence of an attorney/client relationship is an express agreement between the parties. Milner v. Anders, No. CIV. 98-377 GMS, 2001 D. Del. WL 637394 (May 10, 2001) at *5. However, an attorney/client relationship can be “implied by the conduct of the parties.” Id. In deciding whether conduct establishes an attorney/client relationship, the court determines “whether it would have been reasonable for the ‘client’ to believe that the attorney was acting on its behalf as its counsel,” based on the contact between the parties. Benchmark Capital Partners v. Vague, No. C.A. 19719-NC, 2002 Del. Ch. WL 31057462 (Sept. 3, 2002) at *3. Though the sharing of confidential information is a factor to consider in determining whether there is an attorney/client relationship, it is not dispositive. Id. at *3. The relationship depends on whether “legal advice is sought and received.” Herzing v. Priestley, No. Civ. A. 11704, 1992 Del. Ch. WL 76957 (April 15, 1992) at *5. The fact that an attorney does not accept payment for advice does not preclude the existence of an attorney/client relationship. Id. Also, the fact that advice may be given that is non-legal in nature does not preclude the existence of an attorney client relationship. Id.
The court in SBC Interactive v. Corp. Media Partners, held that it was not reasonable for a former partner to believe that the attorney representing the general partner was also representing him as an individual. No. Civ.A. 15987, 1997 Del. Ch. WL 770715 (Dec. 9, 1997) at *5. Similarly, it was not reasonable for a doctor to believe that two attorneys who were employed by a party to a merger, to help draft documents for the merged company, represented him. These attorneys only explained documents to the doctor and did not give any legal advice. Milner, No. CIV. 98-377 GMS, 2001 D. Del. WL 637394 (May 10, 2001) at *3.
An attorney has a duty to keep information disclosed by a potential client confidential. Benchmark Capital Partners v. Vague, No. C.A. 19719-NC, 2002 Del. Ch. WL 31057462 (Sept. 3, 2002) at *3. A prospective client who meets with a lawyer and later decides not to retain the lawyer’s services is still protected by the attorney/client privilege. Id.
Representation of multiple defendants in a criminal case should be declined except in unusual situations, since there is a strong possibility that a conflict of interest will be created. Lewis v. State, 757 A.2d 709, 712 (Del. 2000) citing ABA Standards for Criminal Justice: Defense Function, Conflict of Interests §4-3.5. In Lewis v. State, the court held that the client was denied effective assistance of counsel when his attorney represented him along with the other accused co-conspirator, and a conflict arose. 757 A.2d at 720.
Commentary to Rule 1.2 of the DLRPC provides that “all agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law.” [Comment 8]
The various duties that a lawyer owes to a client are discussed throughout this narrative.
The following are general duties that a lawyer has to a client: the duty to provide diligent and competent representation, See DLRPC 1.1; the duty of loyalty, In Re Infotechnology, 582 A.2d 215, 220 (Del. 1990) citing DLRPC 1.7; the duty of confidentiality, Bowden v. Kmart Corp., No. 97C-10-020WLW 1999 Del. Super. WL 743308 at *1; and, the duty to preserve the client’s property, In Re Garrett, 835 A.2d 514, 515 (Del. 2003).
According to Comment 3 of DLRPC 1.2, the client has complete discretion to revoke the lawyer’s authority to act on his behalf.
1.2:300 Authority to Make Decisions or Act for Client
According to Comment 1 of DLRPC 1.2, the client has the authority to determine the goals of the representation. Comment 2 of DLRPC 1.2 acknowledges that disagreements can occur between the attorney and client and in the event of a disagreement, the client will generally allow the lawyer to decide the “technical, legal and tactical matters,” whereas lawyers defer to their client’s decisions regarding expenses that the client will have to pay. The Delaware Supreme Court, in Bradshaw v. State, makes a similar distinction, pointing out that the Model Rules look to the objectives for the representation when allocating authority. 806 A.2d 131, 138 (Del. 2002). Decisions, such as whether to appeal which the client determines, and decisions that are tactical, which are often left to the lawyer, must be distinguished. However, the court acknowledges that even though the lawyer may decide matters of strategy, the lawyer has a duty to consult with the client regarding these decisions. Id.
According to DLRPC 1.2, “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” Comment 1 of Rule 1.2 reaffirms that the client retains the authority to decide the goals of the representation. Attorneys have been disciplined for violations of Rule 1.2 for failing to “abide by the client’s decisions.”
The Delaware Superior Court affirmed the findings of the Board, that an attorney violated 1.2(a), when the attorney did not file the necessary documents to get alimony for a divorce, something the client expressly requested. In Re O’Neal, No. 203 (Del. 1995). Similarly, an attorney was disciplined for violating Rule 1.2(a) for failing to contact witnesses supplied by the client, whom the client thought could be helpful to the defense. In Re Guy, No. 329 (Del. 2000). The attorney argued that contacting the witnesses was not necessary because they would not likely have been helpful. However, the court held that the failure to contact witnesses when the client expressly requested such contact violated Rule 1.2(a), since the witnesses could possibly have provided the attorney with relevant information. Id. An attorney violated Rule 1.2(a) by not following the client’s directions in the resolution of a real estate case. In Re McCoy, No. 508 (Del. 2000). Failure to file an appeal contrary to the request of the client is a violation of Rule 1.2(a). In Re Callaway, No. 331 (Del. 2000). An attorney violated Rule 1.2 by failing to file a deed when the client’s goal of the representation was to transfer property in order to reduce estate tax. In Re Autman, No. 152 (Del. 2002). The lawyer’s inaction was clearly inconsistent with the client’s goal of reducing his estate taxes. Id. An attorney violated Rule 1.2(a) when he did not consent to the replacement of the trustee of the estate until the night before a Court of Chancery hearing. In Re Benge, No. 76 (Del. 2001). A lawyer was disciplined for violating Rule 1.2(a) when the attorney decided that the client was not likely to win and allowed the employer to terminate benefits without getting the client’s consent. In Re Maguire, No. 506 (Del. 1998).
Client’s Decisions in the Settlement of Civil Matters
Rule 1.2 provides that “a lawyer shall abide by a client’s decision whether to settle a matter.” An attorney does not have the authority to enter into a settlement agreement without the consent of the client. Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 244 (Del. Ch. 1978). The mere existence of an attorney/client relationship does not constitute the necessary client consent for a lawyer to settle a matter. Id.
Client’s Decisions in Criminal Matters
DLRPC 1.2 specifically addresses the client’s decision making authority in criminal matters stating, “in a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive a jury trial and whether the client will testify.” The Delaware Supreme Court, in Bradshaw v. State, points out that certain fundamental rights are listed in DLRPC 1.2, and that decisions to waive certain constitutional rights, such as the right to counsel, must be decided by the client. 806 A.2d 131, 137 (Del. 2002). In Bradshaw v. State, the court held that the attorney did not have the authority to waive the client’s right to be present at trial when the attorney gave the jury an Allen instruction, intending to persuade the jury to decide the case. 806 A.2d at 136. Similarly, an attorney must abide by the client’s decision to waive a jury trial, even if the waiver is not consistent with the attorney’s advice. Davis v. State, 809 A.2d 565, 572 (Del. 2002). An attorney must also abdicate to the client’s wishes to forgo appeals and accept the death penalty. Red Dog v. State, 625 A.2d 245, 246 (Del. 1993).
According to comment 1 of DLRPC 1.2, the lawyer “may take such action as is impliedly authorized to carry out the representation” but the lawyer has a duty to inform the client of the means which the lawyer is employing to work towards the client’s goals. In Re McCann, No. 381, 1997 (Del. 1997). Though it is appropriate for an attorney to make tactical decisions, the attorney must keep the client informed of these decisions. Id. In a real estate case, after a defect in title was discovered, a lawyer found the property owner and attempted to contact the owner but the owner was unresponsive. Id. For tactical reasons, the attorney chose not to persist in contacting the owner, wanting to use the fact that the owner was unresponsive to the client’s advantage. Id. However, the attorney had a duty to consult with the client regarding this decision and this failure to communicate was a violation of DLRPC 1.2(a). Id. Another lawyer violated DLRPC 1.2(a) for not keeping the client informed of “key litigation decisions.” In Re Maguire, No. 56, 1998 (Del. 1999). An attorney was disciplined for filing a document on behalf of a client with a “substantial alteration,” unbeknownst to the client. In Re Solomon, No. 284 (Del. 1999). The attorney admitted to violating the rule and said that she should have consulted the client to determine how to proceed. Id. An attorney received a private reprimand with conditions for not explaining a statute to the client, and not informing the client about the filing of a motion to dismiss, and a court order which required a brief in response. Board Case No. 7 (Apr. 20, 2004).
Once the client retains an attorney, the attorney has broad “authority to take such action on behalf of his client as he deems necessary and which constitutes a required incidence either to the prosecution of an action or defense, or is designed to bring about the ends for the advancement of which such attorney has been retained.” Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 244 (Del. Ch. 1978). The attorney/client relationship is an agency relationship. Id. at 245. This broad grant of authority may not extend to situations where the actions of the attorney injure the client. Vance v. Irwin, 619 A.2d 1163, 1165 (Del. 1993). However, in general, the client is bound by the actions of his attorney. Id.
A default judgment was vacated when an attorney was negligent and did not keep the clients informed of the status of the case. Justice v. McGinn, No. Civ. A. 1858-S 1998 Del. Ch. WL 229436 (Apr. 21, 1998) at *1. The court held that the lawyer’s neglect “cannot fairly be imputed” on the client in this situation. Id. at *3.
1.2:400 Lawyer’s Moral Autonomy
DLRPC 1.2(b) expresses the lawyer’s moral autonomy stating, “a lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” Comment 5 of DLRPC 1.2 recognizes, however, that representation should not be denied because the client’s cause is undesirable, noting that representation of a client “does not constitute approval of the client’s views or activities.”
1.2:500 Limiting the Scope of the Representation
Under DLRPC 1.2(c), a lawyer is permitted “to limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Comment 6 of DLRPC 1.2 specifies that activities that would normally be used to further the objectives of the case may be limited because of the cost to the client, or if the lawyer finds the activities “repugnant.” However, these “limitations must be reasonable under the circumstances.” [Comment 7]
In Pinkney v. Tagani, the Superior Court held that the attorney effectively limited the scope of the representation when the attorney wrote a letter to the client limiting the representation to drafting a document, a matter the attorney and client discussed. No. Civ. A. 02C-08-129FSS 2004 Del. Super. WL 2827896 (Nov. 30, 2004) at *2. Therefore, the attorney was not held liable for failing to do financial research because the scope of the representation was limited and the attorney warned the client of the dangers of proceeding without financial research. Id. at *10.
Limitations imposed on the scope of the representation do not exempt the lawyer from the duty to provide diligent and competent representation to the client. However, this is a factor that is considered in determining whether the attorney used the “legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation” which is required in Rule 1.1. [Comment 7 of DLRPC 1.2]
1.2:600 Prohibited Assistance
DLRPC 1.2(d) prohibits a lawyer from counseling “a client to engage…in conduct that the lawyer knows to be criminal and fraudulent.” Comment 9 of DLRPC 1.2 distinguishes recommending that the client engage in fraudulent conduct or telling the client how to commit a crime or fraud, with giving an honest opinion regarding the illegality of the conduct accompanied by an analysis of the law. An attorney received a private sanction for violation of DLRPC 1.2(d) for not telling the client that the client’s proposed course of action for the case was not in compliance with the DLRPC. Board Case No. 21 (November 19, 1990). In this family law case the lawyer, representing the mother, communicated an offer to the father to exchange her testimony in the father’s criminal case for an increased amount of child support to be paid to the mother. Id. An attorney acted properly and did not create a conflict of interest when the attorney refused to allow his client to commit perjury by offering testimony that the lawyer knew to be false. Riley v. State, No. 259, 2004 Del. WL 2850093 (Oct. 20, 2004) at *3.
A lawyer is not permitted to “assist a client, in conduct that the lawyer knows to be criminal or fraudulent,” according to DLRPC 1.2(d). Comment 10 further defines this by saying that an attorney may not file documents with the court that the attorney knows contain false information, nor is the attorney permitted to assist the client in covering up the fraud. According to Comment 10, if a lawyer discovers during the course of the representation that an activity is fraudulent, the lawyer must withdrawal from the representation. The commentary goes on to say that in some situations, withdrawal alone may be insufficient and the lawyer may have to “disaffirm any opinion, document, affirmation or the like.” [Comment 10]
The Delaware Supreme Court affirmed the Board’s finding that an attorney violated 1.2(d) by preparing and filing two inconsistent deeds, and preparing a certificate in conflict with the holdings of the Court of Chancery. In Re Shearin, 721 A.2d 157, 162 (Del. 1998). The attorney violated 1.2(d) in another matter by falsely stating the assets and liability of the client in the client’s petition for bankruptcy. Id at 163. An attorney violated 1.2(d) when he helped his client in a real estate transaction which was a scam to avoid paying taxes on the transaction. In Re Faraone, 722 A.2d 1, 3 (Del. 1998). Comment 12 of DLRPC 1.2 addresses this issue and prohibits an attorney from assisting in any “transaction to effectuate criminal or fraudulent avoidance of tax liability.”
DLRPC 1.2(d) allows a lawyer to “counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” Comment 12 of DLRPC 1.2 further explains this particular statement in 1.2(d), saying that sometimes, to clearly determine the meaning of a regulation, it is necessary to act in a manner that is not in compliance with the regulation. The commentary recognizes that occasionally this may be necessary.
1.2:700 Warning Client of Limitations on Representation
A lawyer must warn the client about limits on representation if the client asks the lawyer to act in a manner not in compliance with the DLRPC. [Comment 13] It is the lawyer’s duty to advise the client of the limitations placed on the representation, though the lawyer is not required to “spell out the consequences”. Pinkney v. Tagani, No. 02C-08-129FSS, 2004 Del. Super. WL 2827896 (Nov. 30, 2004) at *10. In Pinkney v. Tagani, the attorney limited the representation when he articulated the agreement from their conversation in a letter, stating he would not perform financial research. Id. The court held that even if there was no oral warning, which is a factual dispute, the letter limiting the representation made it obvious that the consequence of no financial research was the risk that the estate might have insufficient funds to complete the estate plan. Id.
1.2:800 Identifying to Whom a Lawyer Owes Duties
The Preamble to DLRPC states that “most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render some legal services and the lawyer has agreed to do so.” However, the Family Court of Delaware, in Petrizzi v. Petrizzi, acknowledges that in some situations the attorney/client relationship and its accompanying duties can begin at a preliminary meeting between the attorney and possible client, even if the possible client never retains the attorney’s services. Petrizzi v. Petrizzi, No. CN89-9791, 1989 Del. Fam. Ct. WL 169003 (Dec. 18, 1989) at *1.
1.2:820 Persons Paying for the Representation of Another [see also 1.13:200]
1.2:830 Representing an Entity [see also 1.13:200]
An attorney retained to represent a corporation represents the corporation and not “any single corporate constituency.” Cole v. Wilmington Materials, No. 12649, 1993 Del. Ch. WL 257415 (July 1, 1993) at *1.
1.2:840 Representing a Fiduciary [see also 1.13:520]
Comment 11 of DLRPC 1.2 recognizes the possibility that an attorney who represents a fiduciary may have some duties to beneficiaries.
An attorney has a duty to each client in a class action, but there are differences between the traditional representation of a client and the representation of clients in a class action. In Re Winchell’s Donut Houses, 1988 Del. Ch. WL 135503 (Dec. 12, 1988) at *2. Generally, an attorney has a “duty to abide by the client’s decisions” as is mandated in DLRPC 1.2(a), but in the class action, the attorney may propose to settle the case even if some of the clients in the class action dissent. In Re M&F Worldwide Corp., 799 A.2d 1164, 1176 (Del. Ch. 2002). Another distinction between class actions and the typical attorney/client relationship is that in a typical attorney/client relationship, the client can discharge the lawyer, but in the class action, the client does not have that option. In Re Winchell’s Donut Houses, 1988 Del. Ch. WL 135503 (Dec. 12, 1988) at *2.