[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

their clients, and apparently acted incompetently by failing to recognize their own legal
obligations to Mr. Perez. They ignored Mr. Perez’s right to control the goals of the
representation by failing to ask him about the use of his statement. They failed to recognize
basic obligations to communicate with their client about key issues. They blatantly violated
Mr. Perez’s confidentiality by disclosing his confidences to the prosecutor without his
consent. And they overlooked conflict of interest by favoring another client’s interests over
Mr. Perez’s, and by pursuing their own interests at Mr. Perez’s expense.
All of this caused incalculable damage to Mr. Perez, who was 25 years old when the
accident occurred, and was just beginning to realize his lifelong ambition to be a truck
driver like his father. The accident killed 21 of the 81 children on the bus, who drowned in
a water-filled pit after the truck driven by Mr. Perez pushed it off the road. Following the
accident, Mr. Perez spent three and a half years awaiting trial on the criminal charges in a
self-imposed bedroom prison as penance, never leaving his house. 1 The jury acquitted Mr.
Perez on all 21 counts after only four hours of deliberation. 2
The behavior of Mr. Perez’s lawyers indicates that they somehow misconstrued their
role in representing their client, thinking that they owed him no fiduciary duties even
thought that they assumed and promised all of them. They appear to have acted as
directors, who imposed their own private judgment about the matter on a trusting,
unsuspecting client, rather than agents with fiduciary duties subject to their client’s
instructions. Judge John Noonan calls this mindset “underidentification with a client.” 3
Fiduciary Duties
Agency law long has recognized the problem of generalized expertise: the tendency of
experts to transfer their professional knowledge and expertise to a general control over all
decisions and aspects of the relationship. To ensure that the client’s moral values control
the agency relationship, lawyer-agents owe client-principals the “six C’s” to steer even the
most well-meaning lawyers away from benefiting someone other than the client. These
fiduciary duties protect clients from lawyers who might intentionally or even inadvertently
take advantage of the trust and power reposed in them.
Mr. Perez’s lawyers’ problems began with client identification. They apparently offered
to represent Mr. Perez, promised him confidentiality, encouraged him to confide in them,
obtained his statement about the accident, and then turned it over to a hostile third party,
the prosecutor. Perhaps because they were hired and paid by national Union Fire Insurance
Company they wrongly assumed that the insurer and Mr. Perez’s employer were their only
actual clients, despite giving Mr. Perez a contrary assurance in their face-to-face meeting.
Or, perhaps these lawyers breached their duty of competence 4 due to a mistaken belief
that they had the prerogative to disclose client information without consent or
consultation. Once they withdrew from the joint representation, they appear to have been
unaware of their continuing obligations to him as a former client.
This apparent lack of knowledge also extended to their fiduciary duties of control and
communication. 5 In their meeting with Mr. Perez, there is no indication that the lawyers
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