Presentation for the St. Louis Paralegals Association on June 15, 2017

1. Legal Ethics
Michael Downey
Downey Law Group LLC

2. Basics of Professional Liability
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Negligence Breach of Fiduciary Duty Legal Malpractice
Duty Fiduciary relationship
Attorney-client
relationship
Breach
Breach (of fiduciary
duty)
Breach (of duty owed
client)
Causation Causation Causation
Damages Damages Damages

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4. Breach of Fiduciary Duty
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5. Elements of Breach of Fiduciary Duty
Whether characterized as breach of fiduciary duty or
constructive fraud, the elements of such a claim are:
(1) an attorney-client relationship
(2) breach of a fiduciary obligation by the attorney
(3) proximate causation
(4) damages to the client
(5) no other recognized tort encompasses the facts
alleged
Klemme v. Best, 941 S.W.2d 493, 496 (Mo. 1997)”
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6. Lawyer as Fiduciary
Principal (Client)
Agent (Lawyer)

7. Fiduciary Duties Owed to Clients
Loyalty
Confidentiality
Safekeeping PropertyIndependent Judgment
Communication
Candor

8. Legal Malpractice
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9. Elements of Legal Malpractice
The four essential elements of a legal malpractice action are: ’
(1) that an attorney-client relationship existed;
(2) that [the attorney] acted negligently or in breach of contract;
(3) that such acts were the proximate cause of the [client's]
damages;
(4) that but for [the attorney's] conduct the [client] would have
been successful in the prosecution of [the] [underlying]
claim.'"
Boatright v. Shaw, 804 S.W.2d 795, 796 (Mo. App. E.D. 1990)
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10. Formation of Client-Lawyer
Relationship
A relationship of client and lawyer arises when:
1. a person manifests to a lawyer the person’s intent
that the lawyer provide legal services for the person;
and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and
the lawyer knows or reasonably should know that the
person reasonably relies on the lawyer to provide the
services; or
2. a tribunal with power to do so appoints the lawyer to
provide the services.
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11. “Trial Within a Trial”
• Not “Did the lawyer do something wrong?”
but
• “Did lawyer do something wrong that caused
you to lose?”
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8.9
8.8
8.6
6.7
6.6
5.9
5.4
5.3
5
0 2 4 6 8 10 12
Failure to Know/Apply Law
Planning Error
Inadequate Disc/Investigation
Failure to File Documents/No Deadline
Failure to Calendar
Failure to Know Deadline
Procrastination
Failure to Obtain Client Consent
Conflict of Interest
Fraud
10 Most Common Legal Malpractice Error Allegations
Source: ABA Standing Committee on Lawyers’ Professional Liability

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15. Duty = Ethics Rules (?)
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16. Missouri Supreme Court
Board of Law
Examiners
The Missouri Bar
Attorney Discipline
System
Judicial
Commission
Missouri Organizational Chart
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17. Ethics Rules in Malpractice Cases
Missouri Rule 4 Scope [7] –
Violation of a Rule should not itself give rise to a cause of action
against a lawyer nor should it create any presumption in such a
case that a legal duty has been breached.... The Rules are designed
to provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not
designed to be a basis for civil liability.…The fact that a Rule is a just
basis for a lawyer's self-assessment, or for sanctioning a lawyer
under the administration of a disciplinary authority, does not imply
that an antagonist in a collateral proceeding or transaction has
standing to seek enforcement of the Rule. Accordingly, nothing in
the Rules should be deemed to augment any substantive legal duty
of lawyers or the extra-disciplinary consequences of violating such
a duty.
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18. Structure of the Ethics Rules
4-1.X Client-lawyer relationship (18 rules)
4-2.X Counselor (3 rules)
4-3.X Advocate (9 rules)
4-4.X Transactions with Persons Other than Clients (4 rules)
4-5.X Law Firms and Associations (7 rules)
4-6.X Public Service (5 rules)
4-7.X Information about Legal Services (6 rules)
4-8.X Maintaining the Integrity of the Profession (5 rules)

19. Ethical Obligations to Clients
4-1.1 – competence
4-1.3 – diligence
4-1.4 – communication
4-1.6 – confidentiality
4-1.7 to 4-1.12 – loyalty (no conflicts)
4-1.15 – safeguard property and money
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20. Legal Malpractice v. Breach of
Fiduciary Duty
• Legal malpractice – breach of duty of
competence (4-1.3) or diligence (4-1.3)
• Breach of fiduciary duty – breach of another
fiduciary obligation (such as those in Rules 4-
1.2 and 4-1.4 through 4-1.18)
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21. Competence – Rule 4-1.1
“A lawyer shall provide competent
representation to a client. Competent
representation requires the legal knowledge,
skill, thoroughness and preparation reasonably
necessary for the representation.”
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22. Keeping Client Informed – Rule 4-1.4(a)
A lawyer shall:
(1) keep the client reasonably informed about the
status of the matter;
(2) promptly comply with reasonable requests for
information; and
(3) consult with the client about any relevant limitation
on the lawyer’s conduct when the lawyer knows the
client expects assistance not permitted by the Rules
of Professional Conduct or other law.
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23. Confidentiality – Rule 4-1.6(a)
A lawyer shall not reveal information relating to the
representation of a client unless the client gives
informed consent, the disclosure is impliedly
authorized in order to carry out the representation or
the disclosure is permitted by paragraph (b).

24. “Information relating to the representation of a
client . . .” Rule 4-1.6
Client
Court
Filings
Real Estate
Records
Newspaper
Depositions
Pleadings
Opposing
Party
Lawyer

25. (Anticipated) Rule 4-1.6(c)
Protection of Confidences.
Model Rule 1.6(c): "A lawyer shall make reasonable
efforts to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to, information
relating to the representation of a client."
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26. What Are "Reasonable" Precautions
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27. Evaluation of Safeguards
Factors to be considered in determining the reasonableness of
the lawyer’s efforts include, but are not limited to,
– the sensitivity of the information
– the likelihood of disclosure if additional safeguards are not
employed
– the cost of employing additional safeguards
– the difficulty of implementing the safeguards (and)
– the extent to which the safeguards adversely affect the lawyer’s
ability to represent clients (e.g., by making a device or
important piece of software excessively difficult to use)
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28. Conflicts (Loyalty & Confidentiality)
Rule 4-1.7 (a) Except as provided in paragraph (b), a lawyer shall
not represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse
to another client; or
(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.

29. Rule 4-8.4
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or
induce another to do so, or do so through the
acts of another . . .
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30. Duty to Supervise – Rule 4-5.3
With respect to a nonlawyer employed or retained by or associated
with a lawyer:
(a) a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm
shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the person’s conduct is
compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer
shall make reasonable efforts to ensure that the person’s conduct
is compatible with the professional obligations of the lawyer; and .
. .
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31. Duty to Supervise – Rule 4-5.3
With respect to a nonlawyer employed or retained by or
associated with a lawyer: . . .
(a)
(b)
(c) a lawyer shall be responsible for conduct of such a person
that would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific
conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial
authority in the law firm in which the person is employed, or
has direct supervisory authority over the person, and knows of
the conduct at a time when its consequences can be avoided
or mitigated but fails to take reasonable remedial action.
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32. Levels of (Formal) Discipline
• Disbarment
• Suspension – Indefinite (IL/MO) or specific period
(IL)
• Stayed Suspension
• Probation
• Reprimand (IL "Censure")
– Public
– Private
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33. Other "Discipline"
• Admonition (MO) or Reprimand (IL)
– Temporary
– Less public
– Often some level of choice
• Diversion
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34. Problems with Discipline
• Discipline system may employ volunteer lawyers
• Many types of conduct excluded
– Fee disputes
– Incivility
• Disciplined lawyers are disproportionately solo or
small firm practitioners and minorities
• Clients report most misconduct, but many types of
problems escape client notice
• Lack of information given to complainant/client
• Most discipline is punitive, not rehabilitative
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35. Michael Downey
Downey Law Group LLC
(314) 961-6644
(844) 961-6644 toll free
mdowney@DowneyLawGroup.com
Thank You