EDITED BY:
Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Carrie E. Parker, Legal Editor
Matthew T. Stephens, Design & Publishing Editor
PUBLISHED BY: Joseph, Hollander & Craft LLC
PUBLICATION DATE: October 31, 2024
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 10
FEATURE ARTICLE: ABA Formal Opinion 513: The Lawyer’s Duty of Investigation
On August 24, 2024, the ABA Committee on Ethics and Professional Responsibility issued Formal Opinion 513 to provide guidance for lawyers about how to comply with newly revised Model Code Rule 1.16. The opinion makes it clear that compliance with the newly revised Rule 1.16 and other ethical rules required lawyers to make an investigation—in some cases substantial investigation—into a client’s activities and plans:
A duty to inquire into and assess the facts and circumstances of a representation has long been implicit in the ABA Model Rules of Professional Conduct. Rule 1.2(d) requires a lawyer to inquire into and assess the facts of each representation to avoid advising or assisting a client in conduct the lawyer knows to be criminal or fraudulent; similarly, depending on the facts and circumstances, other Rules may also require inquiry and assessment to satisfy the lawyer’s duty of competence under Rule 1.1, the duty of diligence under Rule 1.3, the duty to communicate under Rule 1.4, the duty to protect the best interests of an organizational client under Rule 1.13, the duties of honesty and integrity under Rules 8.4(b) and (c), and the duty to withdraw under Rule 1.16(a). In August 2023, this previously implicit duty to inquire and assess the facts and circumstances of a representation was made explicit by amendments to Rule 1.16.
It is not insignificant that the opinion uses the phrase “made explicit.” This would suggest that even in jurisdictions that have not accepted the 2023 amendments to Rule 1.16, some degree of investigation is required by lawyers.
While the original purpose for Rule 1.16 was to combat lawyers’ aiding clients in money laundering or terrorism, Formal Opinion 513 explains the rule’s reach is far broader under the amended text and comments—especially Comment 1:
. . .
NEW AUTHORITY: Oregon Formal Opinion 2024-203: Cultural Awareness
The Oregon State Bar recently released Formal Opinion 2024-203 on lawyer-client communication and cultural awareness. While the Formal Opinion is new, its topic of discussion is not. As the American population has grown more diverse linguistically and culturally, a number of authorities have grown concerned with assuring that lawyers can adequately communicate with clients in spite of language difficulties. The ABA issued Formal Opinion 500 on this topic in October 2021, and Oregon follows the ABA’s approach.
With the growing availability of digital translation devices, lawyers should be able to comply with Rules 1.1 on competency and Rule 1.4 on communication in many cases, but not all the time. But, as both Formal Opinion 2024-203 and ABA Formal Opinion 500 point out, a lack of cultural awareness may hinder effective lawyer-client communications even when verbatim translation is available.
Formal Opinion 2024-203 highlights the importance of a lawyer’s cultural awareness when the client comes from a different culture than the attorney. Both the Oregon opinion and ABA Formal Opinion 500 point out that linguistic skills may not be sufficient. Rather, the translator and lawyer must also be sensitive to cultural differences that may affect lawyer-client communication. The Oregon opinion, summarizing ABA Formal Opinion 500, states:
Oregon RPC 1.1 also requires cultural awareness as necessary to provide competent representation in a particular matter to achieve a client’s objectives. A lawyer who is not culturally aware of their client’s background may be insensitive to the client’s cultural taboos, expectations, family norms, or communication and conflict- resolution styles, factors that could significantly affect the quality or usefulness of the lawyer’s representation and advice. The client may view the representation from a cultural and social perspective that is not shared by the lawyer. The lawyer may be less effective in establishing a relationship of trust and confidence with clients from other cultures, and the failure to understand the significance of cultural awareness and misinterpretation of client behavior may lead the lawyer to implement ineffective case strategies.
This may come as some surprise to many lawyers.
The Oregon opinion, like the ABA Formal Opinion, goes on to state the expectation that lawyers educate themselves to become culturally aware of clients’ cultures or find other experts to provide this awareness. This could be a translator, but the lawyer will have to assure himself that the translator is culturally aware. This might rule out digital translations. Lawyers dealing with clients from different cultures must pay attention to this.
ETHICS & MALPRACTICE RESEARCH TIP: New Articles Drawn from the Current Index of Legal Periodicals
1. James R. Steiner-Dillon, Expert Malpractice, 2024 Utah L. Rev. 281 (2024).
Any lawyer who uses expert witnesses for litigation and anyone who serves or wishes to serve as an expert witness will find this fascinating and important. It discusses the question of whether expert witnesses can be liable to malpractice suits for their actions.
2. Irma Russell, John C. Dernbach & Matt Bogoshian, The Lawyer’s Duty of Competence in a Climate-Imperiled World, 92 UMKC L. Rev. 859 (2024).
This is an article that is of utmost interest to every lawyer with any concern about climate change and its effects. Increasingly, people are coming to realize how much the effects of climate change affect every aspect of our lives.
A BLAST FROM THE PAST: The Temptation of Casuistry
There is no doubt that individuals are strongly tempted to have recourse to casuistry to find excuses for relaxing in their favor the restraints of moral rules which they find inconvenient;
and hence a casuist has come to be regarded with suspicion as a moralist who aims at providing his clients with the most plausible excuses available for this purpose.
—Henry Sedgwick, Practical Ethics 17–18 (London 1898)
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 10
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