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: July 31, 2024
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 7
FEATURE ARTICLE: The Problem of the Tyrannical Client
The relationship between a lawyer and her client is one of agency—a highly privileged relationship in which the lawyer becomes her client’s fiduciary. Although the notion of fiduciary duty has been defined in various terms, the predominant definition in the United States is found in Judge Cardozo’s opinion in Meinhard v. Salmon:
A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions (Wendt v. Fischer, 243 N. Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.
249 N.Y. 458, 464, 164 N.E. 545 (1928).
Earlier, Lord Chancellor Brougham, in his defense of the Queen at her trial in the House of Lords in 1821, put it even more strongly. He stated that a lawyer was required “to save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, he destruction which he may bring upon others.”
These definitions of a lawyer’s duty to his client do not speak of any limits on this duty.
For these limits, a lawyer today can turn to the Model Rules of Professional Conduct.
. . .
NEW AUTHORITY: The ABA’s First Ethical Guidance on the Use of AI in Law Practice
On July 29, 2024, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 512 regarding generative artificial intelligence (GAI). Given how recent the opinion is, we cannot offer a full analysis at this time. We simply want our readers to be timely aware that it has been issued, and we encourage every lawyer to read it. That said, we do not believe its contents will surprise regular LEMR readers, who will be familiar with the ample discussion we’ve devoted to this subject in recent years. For example, consistent with the majority of commentary to date, the opinion states:
While GAI may be used as a springboard or foundation for legal work—for example, by generating an analysis on which a lawyer bases legal advice, or by generating a draft from which a lawyer produces a legal document—lawyers may not abdicate their responsibilities by relying solely on a GAI tool to perform tasks that call for the exercise of professional judgment. For example, lawyers may not leave it to GAI tools alone to offer legal advice to clients, negotiate clients’ claims, or perform other functions that require a lawyer’s personal judgment or participation. Competent representation presupposes that lawyers will exercise the requisite level of skill and judgment regarding all legal work. In short, regardless of the level of review the lawyer selects, the lawyer is fully responsible for the work on behalf of the client.
Look forward to next month’s edition of the LEMR for more on ABA Formal Opinion 512.
ETHICS & MALPRACTICE RESEARCH TIP: New Articles from the Current Index to Legal Periodicals
1. Rebecca A. Delfino, The Deepfake Defense—Exploring the Limits of the Law and Ethical Norms in Protecting Legal Proceedings from Lying Lawyers, 84 Ohio St. L.J. 1067 (2024).
It is a sad comment on the state of the legal profession today that we must deal with lying lawyers.
2. Abigail L. Cahn-Gambino, Note, Under Pressure: The Effects of Dobbs on Lawyers Advising Abortion Providers, 36 Geo. J. Legal Ethics 597 (2023).
This article deals with ethical considerations for lawyers advising abortion providers.
A BLAST FROM THE PAST: James Fishman on Anthony Trollope
Generally, this column consists of a quotation. This month, rather than a quotation, we provide a reference to a splendid article by James Fishman discussing how the great, nineteenth-century English novelist Anthony Trollope wrote about lawyers:
Fishman, James, A Random Stroll Amongst Anthony Trollope’s Lawyers (October 19, 2020), available at SSRN.
READ & DOWNLOAD FULL-TEXT PDF OF LEMR Vol. 5, No. 7
About Joseph, Hollander & Craft LLC
Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.
We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.
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