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com PROFESSIONAL RESPONSIBILITY McGowen Fall 2009 3 duties 1) duty of loyalty 2) duty of confidentiality 3) duty of care 5 rules 1) 2) 3) 4) 5) never create a duty you dont want to create always be prepared to walk away assume everything you do or say will become publicly known never make a clients problem your own never do as a lawyer anything you find repugnant as a person

Hierarchy in rules exist: MR 3.3 MR 1.6 MR 8.3 DONT FORGET ABOUT B&P 6068 (e) Duty of attorney to maintain confidence at every peril to his self or herself Want to know 5 things and diagram 5 things when he presents you with a problem 1) who are the players? The people that are affected by or may be affected by a choice 2) what info each player has 3) what choices each player may make 4) when each player must chose from these choices 5) payoffs

Downloaded From OutlineDepot.com DUTIES LAWYERS OWE CLIENTS 16 A LAWYERS DUTIES TO A CLIENT IN GENERAL

To the extent consent with the lawyers other legal duties and subject to the other provisions of this restatement, a lawyer must, in matters within the scope of the representation: (1) proceed in a manner reasonably calculated to advance a clients lawful objectives, as defined by the client after consultation; (2) act with reasonable competence and diligence (3) comply with obligations concerning the clients confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client; and (4) fulfill valid contractual obligations to the client US v 7108 West Grand Rule: Clients are principals, attorney is agent, under law of agency the principal is bound by his chosen agents deeds. Holding client responsible for the lawyers deeds ensure that both clients and lawyers take care to comply. If the lawyers neglect protected the client from ill consequences, neglect would become all too common. A litigant chooses his counsel at his peril. Counsels disregard for his professional responsibilities can lead to extinction of his clients claims. Holding: Client is bound by lawyers action 52 THE STANDARD OF CARE

(1) For purposes of liability under 48 and 49, a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances

59

DEFINITION OF CONFIDENTIAL CLIENT INFORMATION

Confidential client information consists of information relation to representation of the client, other than information that is generally known. 60 A LAWYERS DUTY TO SAFEGUARD CONFIDENTIAL CLIENT INFORMATION (1) Except as provided in 61-67, during and after representation of a client: a. The lawyer may not use or disclose confidential client information as defined in 59 if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information b. The lawyer must take steps reasonable in the circumstances to protect confidential client information against impermissible use or disclosure by the lawyers associates or agents that may adversely affect a material interest of the client or otherwise than as instructed by the client. (2) Except as stated in 62, a lawyer who uses confidential information of a client for the lawyers pecuniary gain other than in the practice of law must account to the client for any profits made. Tante v. Herring Rule: When lawyer uses confidential information to detriment of client, breach of fiduciary duty exists. Holding: - Duty of Care: Elements for an action for legal malpractice consist of: Empoyment of an attorney; failure of attorney to exercise ordinary care; damages proximately caused by that failure. Element

Downloaded From OutlineDepot.com of breach (failure to exercise ordinary care) must be related directly to the duty of the attorney to perform the task for which he was employed Fiduciary Duty: Tante was a fiduciary with regard to the confidential information provided to him by his client and therefore he owed his client the utmost good faith and loyalty. By using information available to him to disadvantage his client, he breached that duty.

DIVISION OF AUTHORITY BETWEEN LAWYER AND CLIENT 26 A LAWYERS ACTUAL AUTHORITY

A lawyers act is considered to be that of a client in proceedings before a tribunal or in dealings with third persons when: (1) the client has expressly or impliedly authorized the act; (2) authority concerning the act is reserved to the lawyer as stated in 23 or (3) the client ratifies the act.

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A LAWYERS APPARENT AUTHORITY

A lawyers act is considered to be that of the client in proceedings before a tribunal or in dealings with a third person if the tribunal or third person reasonably assumes that the lawyer is authorized to do the act on the basis of the clients (and not the lawyers) manifestations of such authorization. 28 A LAWYERS KNOWLEDGE; NOTIFICATION TO A LAWYER; AND STATEMENTS OF A LAWYER (1) Information imparted to a lawyer during and relating to the representation of a client is attributed to the client for the purpose of determining the clients rights and liabilities in matters in which the lawyer represents the client, unless those rights or liabilities require proof of the clients personal knowledge or intentions or the lawyers legal duties preclude disclosure of the information to the client. (2) Unless applicable law otherwise provides, a third person may give notification to a client, in a matter in which the client is represented by a lawyer, by giving notification to the clients lawyer, unless the third person knows of circumstances reasonably indicating that the lawyers authority to receive notification has been abrogated (3) A lawyers unprivileged statement is admissible in evidence against a client as if it were the clients statement if either: a. The client authorized the lawyer to make a statement concerning the subject, or b. The statement concerns a matter within the scope of the representation and was made by the lawyer during it.

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A LAWYERS ACT OF ADVICE AS MITIGATING OR AVOIDING A CLIENTS RESPONSIBILITY (1) When a clients intent or mental state is in issue, a tribunal may consider otherwise admissible evidence of a lawyers advice to the client. (2) In deciding whether to impose a sanction on a person or to relieve a person from a criminal or civil ruling, default or judgment, a tribunal may consider otherwise admissible evidence to prove or disprove that the lawyer who represented the person did so inadequately or contrary to the clients instructions.

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A LAWYERS LIABILITY TO A THIRD PERSON FOR CONDUCT ON BEHALF OF A CLIENT

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(1) For improper conduct while representing a client, a lawyer is subject to professional discipline as stated n 5, to civil liability as stated in Chapter 4, and to prosecution as provided in the criminal law. (2) Unless at the time of contracting the lawyer or third person disclaimed such liability, a lawyer is subject to liability to third persons on contracts the lawyer entered into on behalf of the client if: a. The clients existence or identity was not disclosed to the third person, or b. The contract is between the lawyer and a third person who provides goods or services used by lawyers and who, as the lawyer knows or reasonably should know, relies on the lawyers credit. (3) A lawyer is subject to liability to a third person for damages for loss proximately caused by the lawyers acting without authority from a client under 26 if: a. The lawyer tortiously misrepresents to the third person that the lawyer has authority to make a contract, conveyance, or affirmation on behalf of the client and the third person reasonably relies on the misrepresentation, or b. The lawyer purports to make a contract, conveyance, or affirmation on behalf of the client, unless the lawyer manifests that the lawyer does not warrant that the lawyer is authorized to act or the other party knows that the lawyer is not authorized to act.

Three Types of Authority: 1. Authority: Power to alter relationships that principal gives to agent a. Direct communication b. Client comes to lawyer and says I want you to act on my behalf. 2. Apparent Authority: Not based on manifestations from client to you, based on manifestations from client to someone else a. Applies to all lawyers: when you get a client, you become invariably the agent for that client 3. Implied Authority: Implied based on manifestations from client about what he wants you to do a. Client wants you to settle case, this implies you have authority to call other side and begin settlement negotiations 4. Inherent Authority: Situation where people expect you to have authority, judges will try to find a way to say you have authority in an effort to make things more efficient a. Not true form of agency law b. If you are in position where you will be perceived to have power that you do not have, you must communicate your lack of authority to third party 23 AUTHORITY RESERVED TO A LAWYER

As between client and lawyer, a lawyer retains authority that may not be overridden by a contract with or an instruction from the client (1) to refuse to perform, counsel, or assist future or ongoing acts in the representation that the lawyer reasonably believes to be unlawful (2) to make decisions or take actions in the representation that the lawyer reasonably believes to be required by law or an order of a tribunal

MR 1.2(a)

SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

Downloaded From OutlineDepot.com (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a clients decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as impliedly authorized to carry out the representation. A lawyer shall abide by a clients decision whether to settle a matter. In a criminal case, the lawyer shall abide by the clients decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

MR 1.4

COMMUNICATION

(a) A lawyer shall: (1) Promptly inform the client of any decision or circumstance with respect to which the clients informed consent, as defined in Rule 1.0(e), is required by these rules (2) Reasonably consult with the client about the means by which the clients objectives are to be accomplished (3) Keep the client reasonably informed about the status of the matter (4) Promptly comply with reasonable requests for information, and (5) Consult with the client about any relevant limitation on the lawyers conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. In Re: Grievance Proceeding Rule: Lawyer responsible for obeying MR and comments accompanying them cannot contract around the mandatory MR. MR requires lawyers to quickly inform client of all settlement offers Holding: Agreement violated rules but lawyer was not punished because court concluded that disciplining lawyer years after an unrepeated and relatively minor violation of the MR would not serve purpose of attorney disciplinary proceedings. Here the agreement violated the rules but he the lawyers conduct did not. Reputation in context of Apparent Authority Fennell v TLB Rule: In order to create apparent authority, the principal myst manifest to a third party that he consents to have the act done on his behalf by the person purporting to act for him. Lawyer cannot create his own apparent authority. Client does not create apparent authority for his attorney to settle case merely by retaining attorney. Holding: Client not bound by lawyers agreement because lawyer did not have actual authority or apparent authority. Restatement 3rd does away with it, as a practical matter when youre in a proceeding that involves a number of parties the judges will want to and will find a way to hold your client to what you do and say. Some local rules will require you to have power Type of Authority Authority Implied Authority (still authority) Apparent authority Created by Assent of client, manifested to lawyer Implication from assent of client, manifested to lawyer Manifestation by client to third party that lawyer has authority Grants power to Alter clients legal rights and obligations within bounds of client assent Do things necessary to carry out client instruction Alter clients legal rights and obligations within bounds of

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Inherent agency power (where recognized)

Appearance in court proceeding

manifestation Alter clients rights and obligations as needed to enforce result of proceeding

Kivol v. Simon Television Rule: In the absence of a communication of lack of authority by the attorney, an attorney has the inherent power to settle a claim when the attorney attends a settlement procedure governed by the ADR rules protects third party because the principal puts the attorney in a position to trust and should therefore bear the loss. Retention of attorney confers inherent power on attorney to bind the client to in-court proceedings (No apparent authority.) Holding: No actual or apparent authority existed here, however inherent authority did. Client has right to redress against attorney Note: Efficiency concern a rule that did not enable an attorney to bind a client to in court action would impeded the efficient and finality of courtroom proceedings and permit stop and go disruption of the courts calendar. Important: Must disclaim authority to bind the client disclaimer of performative utterance, task of words is to change context Blanton v Womancare Rule: Attorney is not authorized merely by virtue of retention to impair the clients substantial right or the cause of action itself - Attorney must be specifically authorized to settle and compromise a claim - Attorney must not stipulate to a matter that would eleminate an essential defense - Attorney is without authority to waive findings so that no appeal can be made. - Attorney has no apparent authority to bind clien to agreement for arbitration Holding: Client was not bound by lawyers agreement to binding arbitration because he did not have apparent authority to do so arbitration involves ends and therefore that decision rests with the client. Olfe v Gordon

MR 1.2(c)

SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

MR 1.14

CLIENT WITH DIMINISHED CAPACITY

(a) When a clients capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and

Downloaded From OutlineDepot.com cannot adequately act in the clients own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the clients interests.

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A CLIENT WITH DIMINISHED CAPACITY (1) When a clients capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, physical illness, mental disability, or other cause, the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client and act in the best interests of the client as stated in subsection (2) (2) A lawyer representing a client with diminished capacity as described by Subsection (1) and for whom no guardian or other representative is available to act, must, with respect to a matter within the scope of the representation, pursue the lawyers reasonable view of the clients objectives or interests as the client would define them if able to make adequately considered decisions on the matter, even if the client expresses no wishes or gives contrary instructions. (3) If a client with diminished capacity as described in Subsection (1) has a guardian or other person legally entitled to act for the client, the clients lawyer must treat that person as entitled to act with respect to the clients interests in the matter, unless: a. The lawyer represents the client in a matter against the interests of that person, or b. That person instructs the lawyer to act in a matter that the lawyer knows will violate the persons legal duties toward the client. (4) A lawyer representing a client with diminished capacity as described in Subsection (1) may seek the appointment of a guardian or take other protective action within the scope of the representation when doing so is practical and will advance the clients objectives or interests, determined as stated in subsection (2)

Arko v. People Rule: Decision whether to request jury instructions on lesser offenses is a tactical decision that rests with defense counsel after consultation with the defendant. Holding: Decision is for lawyer. Clients conviction reversed, case remanded to trial court for new trial where jury will receive lesser non-included offense instruction (D still retains trial rights and decisions of what jury instruction to request requires skill. USA v Theodore Kaczynksi Holding: Lawyers can use insanity defense over the objection of defendant in criminal case. MR 1.14 tells you what to do if you have a client you believe their capacity is diminished for some reason, the lawyer shall maintain as far as possible a normal relationship with the client You may take reasonably necessary protective actions It tells you that you can disclose information about the client reasonable necessary to protect the clients interest. CA doesnt have anything like that MR 3.1 MERITORIOUS CLAIMS AND CONTENTIONS

Downloaded From OutlineDepot.com A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

MR 3.2

EXPEDITING LITIGATION

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. MR 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not (a) Unlawfully obstruct another partys access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do such act; (b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law (c) Knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists (d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, or (f) Request a person other than a client to refrain from voluntarily giving relevant information to the other party unless 1. the person is a relative or an employee or other agent of a client, and 2. the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information Unbundling Agreement between lawyer and client where lawyer will provide some (but not all) service necessary to resolve the clients problem Authorized by MR 1.2 IF limitation is reasonable and client gives informed consent Lawyers who limit scope of representation must make sure the client understands: what lawyers will do, what lawyer wont do, practical implications of the agreement (may even need to advise as to matters not handling) Some unbundling may be impermissible either as a matter of disciplinary rules or tort law Must perform competently the slice of the representation you undertook (still owe duties to client) o This is a way for clients to afford some legal services where they could not otherwise afford any Way to allocate authority through compartmentalization DUTY OF CONFIDENTIALITY MR 1.6 CONFIDENTIALITY OF INFORMATION

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(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) (b) a lawyer may reveal information relating to the representation of a client to the extent the lawyer believes necessary: (1) to prevent reasonably certain death or substantial bodily harm (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyers services (3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the clients commission of a crime or fraud in furtherance of which the client has used the lawyers services (4) to secure legal advice about the lawyers compliance with these rules (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyers representation of the client, or (6) to comply with other law or a court order.

59

DEFINITION OF CONFIDENTIAL CLIENT INFORMATION

Confidential client information consists of information relating to representation of a client, other than information that is generally known. 60 A LAWYERS DUTY TO SAFEGUARD CONFIDENTIAL CLIENT INFORMATION (1) Except as provided in 61-67, during and after representation of a client: a. The lawyer may not use or disclose confidential client information as defined in 59 if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to make use or disclose such information b. The lawyer must take steps reasonable in the circumstances to protect confidential client information against impermissible use or disclosure by the lawyers associates or agents that may adversely affect a material interest of the client or otherwise than as instructed by the client (2) except as stated in 62, a lawyer who uses confidential information of a client for the lawyers pecuniary gain or other than in the practice of law must account to the client for any profits made.

61

USING OR DISCLOSING INFORMATION TO ADVANCE CLIENTS INTERESTS

A lawyer may use or disclose confidential client information when the lawyer reasonably believes that doing so will advance the interests of the client in the representation. 62 USING OR DISCLOSING INFORMATION WITH CLIENT CONSENT

A lawyer may use or disclose confidential client information when the client consents after being adequately informed concerning the use or disclosure. 63 USING OR DISCLOSING INFORMATION WHEN REQUIRED BY LAW

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A lawyer may use or disclose confidential client information when required by law, after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure. 64 USING OR DISCLOSING INFORMATION IN A LAWYERS SELF-DEFENSE

A lawyer may use or disclose confidential client information when and to the extent that the lawyer reasonably believes necessary to defend the lawyer or the lawyers associate or agent against a charge or threatened charge by any person that the lawyer or such associate or agent acted wrongfully in the course of representing a client. 65 USING OR DISCLOSING INFORMATION IN A COMPENSATION DISPUTE

A lawyer may use or disclose confidential client information when and to the extent that the lawyer reasonably believes necessary to permit the lawyer to resolve a dispute with the client concerning compensation or reimbursement that the lawyer reasonably claims the client owes the lawyer. 66 USING OR DISCLOSING INFORMATION TO PREVENT DEATH (1) A lawyer may use or disclose confidential client information when the lawyer reasonably believes that its use or disclosure is necessary to prevent certain death or serious bodily harm to a person (2) Before using or disclosing information under this section, the lawyer must, if feasible, make a good-faith effort to persuade the client not to act. If the client or another person has already acted, the lawyer must, if feasible, advise the client to warn the victim or to take other action to prevent the harm and advise the client of the lawyers ability to use or disclose information as provided in this section and the consequences thereof. (3) A lawyer who takes action or decides not to take action permitted under this section is not, solely by reason of such action or inaction, subject to professional discipline, liable for damages to the lawyers client or any third person, or barred from recovery against a client or third person.

67

USING OR DISCLOSING INFORMATION TO PREVENT, RECTIFY, OR MITIGATE SUBSTANTIAL FINANCIAL LOSS (1) A lawyer may use or disclose confidential client information when the lawyer reasonably believes that its use or disclosure is necessary to prevent a crime or fraud, and a. The crime or fraud threatens substantial financial loss b. The loss has not yet occurred c. The lawyers client intends to commit the crime or fraud either personally or through a third person, and d. The client has employed or is employing the lawyers services in the matter in which the crime or fraud is committed. (2) If a crime or fraud described in Subsection (1) has already occurred, a lawyer may use or disclose confidential client information when the lawyer reasonably believes its use or disclosure is necessary to prevent, rectify or mitigate the loss. (3) Before using or disclosing information under this section, the lawyer must, if feasible, make a good-faith effort to persuade the client not to act. If the client or another person has already acted, the lawyer must, if feasible, advise the client to warn the victim or to take another action to prevent, rectify, or mitigate the loss. The lawyer must, if feasible, also advise the client of the lawyers ability to use or disclose information as provided in this section and the consequences thereof.

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Downloaded From OutlineDepot.com (4) A lawyer who takes action or decides not to take action permitted under this section is not, solely by reason of such action or inaction, subject to professional discipline, liable for damages to the lawyers client or any third person, or barred from recovery against a client or third person. Duty of confidentiality does not actually exist as such but lawyers treat it as though it does 1) it is not the attorney-client privilege, it is a duty you owe by virtue of being a lawyer at all times and all places 2) you may not use or disclose information that is not generally known which you learn in the course and scope of representing a client 3) 2 prohibitions: USE and DISCLOSURE 4) Attorney-client privilege is not a duty, it is a rule of evidence that allows you to refuse to offer testimony, applies only in situations where rules of evidence apply, scope of privilege is communications between attorney and client, significantly narrower 5) Generally speaking, the duty of confidentiality restrains what otherwise would be voluntary disclosures and the privilege is asserted to lawyers cant be compelled to say things the client doesnt want them to say, controlled by client MR 1.6 flag this in your rules says a lawyer shall not reveal information relating to the client unless they have given informed consent or permitted by (b) B&P 6068 (e) Duty of attorney to maintain confidence at every peril to his self or herself Duty of Confidentiality Distinguished from Attorney Client Privilege Brennans v Brennans Use of Client info for Personal Benefit Welch v E&T - breach of fiduciary duty Rule: Attorney may not at any time use against his former client knowledge or information acquired by virtue of the previous relationship. Duty to protect confidential information continues even after formal relationship ends Holding: Due to the pre-existing attorney-client relationship during which D obtained confidential information about Ps business, D was to refrain from acquiring a pecuniary interest involving collection work for these trust funds unless they first notified and obtained informed consent of P. OHagan tampering with client funds Disclosure of Client Info for Personal Benefit - MR 1.6(a), 4.1(a), 1.9(c) Woods Rule: Lawyer may use information from a former client if that information has becomes generally known. Holding: Rule prohibiting lawyer from representing later client whose interests are directly adverse to former client in same/substantially related matter do not prohibit lawyer from engaging in pro se activities that are adverse to client. - Here lawyer violated the rule because he made reference to information learned from the client, that was not generally known, to oppose client. Disclosure of Client Info NOT for Personal Benefit In Re Pressly

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Downloaded From OutlineDepot.com Rule: Lawyer may not disclose client confidences without current clients consent, even to opposing counsel - MR 4.1 says you cant lie to opposing counsel - Negligent disclosure of information is still disclosure Holding: Lawyer deserves to be publicly reprimanded because he knew he was violating disciplinary rule even if he did not do so with knowledge of all possible consequences. His actions caused client distress and could have hurt litigation. Confidentiality with Multiple Clients AvB Rule: Duty of Confidentiality v. Duty to inform clients of material facts - Lawyer shall not reveal information relating to the representation of a client unless authorized by client or necessary to carry out representation - Lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision regarding the representations - EXCEPTION: A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to rectify the consequences of a clients criminal, illegal, or fraudulent act in furtherance of which the lawyers services had been used. Holding: Firm may disclose existence of husbands illegitimate child to wife (but does not have to) Real lesson dont get in this situation - get the all over waiver signed up front - dont make typos - deal with the fact that mistakes happen Entity Representation and Entity Constituents - MR 1.13(f)-(g) o You represent the entity and not its members Perez v. K&C - It is the Lawyers job to clarify to entity members that he represents the entity itself and not them Rule: Confidential information received during the course of any fiduciary relationship may not be used or disclosed to the detriment of the one from whom the information is obtained. Attorney fiduciary responsibilities may arise even during preliminary consultations regarding the attorneys possible retention if the attorney enters into discussion of the clients legal problems with a view toward undertaking representation. Holding: Attorney client relationship existed at time P gave consent to Ds and Ds owed at least fiduciary duty not to misrepresent to P that his conversations with them were confidential. Disclosure Authorized by Implication - 61 as long as following with 21(3) and 20 Adams v. Franklin - Use or disclosure authorized by implication can present tricky problems. When in doubt, the safer course is to get explicit client consent to the action you wish to take. EXCEPTIONS TO CONFIDENTIALITY RULE when it is ok to breach MR 1.6, Comment 10

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Downloaded From OutlineDepot.com Where a legal claim or disciplinary charge alleges complicity of the lawyer in a clients conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyers right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced. Lawyer Self-Defense - MR 1.6 (CMT 10) First Federal Savings v Oppenheim - Lawyer does not have to wait until proceeding to use exception o As soon as accused he may defend himself by violating confidentiality - The issue in this case is not whether it adequately triggers the self defense exception but what it means to use the exception - DISCLOSE ONLY AS MUCH INFO AS YOU NEED TO PROVE INNOCENCE Meyerhofer is the mother of all Self-Defense cases not a great case for the exception because the original disclosure wasnt made to an allegation so it doesnt fit the elements for the exception, another question we dont know is what is in the binder Privilege is a shield not a sword, cannot be made into a sword mechanism of selective disclosure Physical and Economic Harm - MR 1.6(b)(1) o Allows but does not require disclosure, to prevent reasonably certain death or substantial bodily harm McClure v. Thompson Rule: Guiding rule for purposes of exception for preventing criminal acts is objective reasonableness in light of the surrounding circumstances, and circumstances depend on information supplied by D Holding: Mecca made the disclosure reasonably believing it was necessary to prevent the client from committing a criminal act (death) Mecca therefore did not violate the duty of confidentiality in a manner that rendered his assistance as counsel constitutionally ineffective In Re Goebel - Bad guy wants to know where the guy lived who was a witness from a lawyer, shows a missed address envelope, he ends up figuring it out, goes and kills a guy - Even though he kills the clients husband, theres no discipline for not calling the cops, he did nothing wrong in not calling the cops - To show the bad guy a misaddressed envelope is to breach the duty of confidentiality - Not known to bad guy is not the same as not generally known - So what do you do? - give the address and dump it on your partner that represents the bad guy - call the cops and say I think theyre going to go kill x will you go protect x o dont have to disclose your client is going to commit a crime. Its a may.

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Downloaded From OutlineDepot.com Protecting an Entity Client - MR 1.13(c)(2) - If you know a constituent (officers, directors, other people who act on behalf on the entity) is o Beaching a duty to the entity or breaking the law in a way attributable to the entity; and o The conduct is related to your representation; and o Threatens substantial harm to the entity; then o You MUST act in the best interest of the entity and not the constituent - This means you should report it to the higher up official of the entity and if they dont do anything then you can reveal confidences of constitutents under MR 1.13(2) ATTORNEY-CLIENT PRIVILEGE 68 ATTORNEY-CLIENT PRIVILEGE

Except as otherwise provided in this Restatement, an attorney-client privilege may be invoked as provided in 86 with respect to: (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client

69

ATTORNEY-CLIENT PRIVILEGE COMMUNICATION

A communication within the meaning of 68 is any expression through which a privileged person, as defined in 70, undertakes to convey information to another privileged person and any document or other record revealing such an expression. 70 ATTORNEY-CLIENT PRIVILEGE PRIVILEGED PERSONS

Privileged persons within the meaning of 68 are the client (including a prospective client), the clients lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation. 71 ATTORNEY-CLIENT PRIVILEGE IN CONFIDENCE

A communication is in confidence within the meaning of 68 if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person as defined in 70 or another person with whom communications are protected under a similar privilege. 72 ATTORNEY-CLIENT PRIVILEGE LEGAL ASSISTANCE AS THE OBJECT OF A PRIVLEGED COMMUNICATION

A communication is made for the purpose of obtaining or providing legal assistance within the meaning of 68 if it is made to or to assist a person (1) who is a lawyer or who the client or prospective client reasonably believes to be a lawyer, and (2) whom the client or prospective client consults for the purpose of obtaining legal assistance

77

DURATION OF PRIVILEGE

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Unless waived (78-80) or subject to exception (81-85), the attorney-client privilege may be invoked as provided in 86 at any time during or after termination of the relationship between client or prospective client and lawyer. 86 INVOKING THE PRIVILEGE AND ITS EXCEPTIONS (1) When an attempt is made to introduce in evidence or obtain discovery of a communication privileged under 68: a. A client, a personal representative of an incompetent or deceased client, or a person succeeding to the interest of a client may invoke or waive the privilege, either personally or through counsel or another authorized agent b. A lawyer, an agent of the lawyer, or an agent of a client from whom a privileged communication is sought must invoke the privilege when doing so appears reasonably appropriate, unless the client i. Has waived the privilege, or ii. Has authorized the lawyer or agent to waive it. c. Notwithstanding failure to invoke the privilege as specified in Subsections (1)(a) and (1)(b), the tribunal has discretion to invoke the privilege (2) A person invoking a privilege must ordinarily object contemporaneously to an attempt to disclose the communication and, if the objection is contested, demonstrate each element of the privilege under 68. (3) A person invoking a waiver of or exception to the privilege (78-85) must assert it and, if the assertion is contested, demonstrate each element of the waiver or exception. Traditional elements of attorney client privilege: 1) the asserted holder of the privilege is or sought to become a client 2) the person to whom the communication was made a. is a member of the bar of a court, or his or her subordinate, and b. in connection with this communication is acting as a lawyer 3) the communication relates to a fact of which the attorney was informed a. by his client b. without the presence of strangers c. for the purpose of securing primarily either i. an opinion of law or ii. legal services or iii. assistance in some legal proceeding, and d. not for the purpose of committing a crime or tort 4) the privilege has been a. claimed and b. not waived by the client 73 THE PRIVILEGE FOR AN ORGAINIZATIONAL CLIENT

When a client is a corporation, unincorporated association, partnership, trust, estate, sole proprietorship, or other for-profit or not-for-profit organization, the attorney-client privilege extends to a communication that: (1) otherwise qualifies as privileged under 68-72 (2) is between an agent of the organization and a privileged person as defined in 70 (3) concerns a legal matter of interest to the organization, and (4) is disclosed only to a. privileged persons as defined in 70, and b. other agents of the organization who reasonably need to know of the communication in order to act for the organization.

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Attorney-Client privilege in connection with entity clients 2 rules MR 1.13(a) when you are retained by an entity you represent the entity itself, you dont represent the officers, you dont represent the directors, you dont represent the employers. The person that hires you, pays you and has the power to fire you is NOT your client. The entity is. Insofar as privilege is concerned, the privilege is not to whom you are speaking but to the entity 1.13(f) In dealing with officers, directors, constituents, a lawyer shall explain the identity of the client to them so they are aware MR 1.13 ORGANIZATION AS CLIENT

(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph d 1) despite the lawyers efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and 2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization (d) Paragraph (c) shall not apply with respect to information relating to a lawyers representation by an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyers actions take pursuant to Paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organizations highest authority is informed of the lawyers discharge or withdrawal. (f) In dealing with an organizations directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organizations interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organizations consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is represented, or by the shareholders.

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Downloaded From OutlineDepot.com Communications, NOT Facts UpJohn - The privilege does not extend to facts communicated. A fact is one thing and a communication concerning a fact is an entirely different thing. - So a client may have to disclose facts told to an attorney but not the discussion about those facts Lefcourt v. USA - When filing a form for receiving cash payment in excess of 10k attorney did not put payors name and claimed he didnt have to because of ACP - Court did not agree, stating this was a fact and not a communication. Rule: Client identification and fee information are not privileged. Privilege encompasses only those confidential communications necessary to obtaining legal advice Holding: Lefcourt had no reasonable basis for failing to provide information required by IRS statute incrimination rationale not a valid reason to invoke APC In Confidence - 79 Minnesota v TDR Rule: APC does not apply to confidences given in the presence of third parties Holding: Rhodes was the sole client. Wife was non-client. Because discussions occurred in the presence of third party (wife), the APC has been waived. Between an Attorney and a Client US v. LK Rule: What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. IF what is sought is not legal advice but only accounting service .. or if the advice sought is the accountants rather than the lawyers, no privilege exists. Holding: Accountant could claim APC because accounting concepts are foreign to lawyers, and presence of accountant was necessary to permit effective consultation between lawyer and client where purpose was to obtain lawyers (not accountants) legal advice Relating to Legal Advice Neuder v. Battelle Lab - The primary purpose of the communication must be to obtain legal assistance or advice and that must predominate other aspects of the communication, such as business advice Feldberg Rule: Privilege extends to the extent it facilitates the candor necessary to obtain legal advice, no further Holding: Since questions about the adequacy of a search do not entail legal advice, the topic is not off limits just because the lawyers played a role. Entities and Privilege Techni-Plex - Holding: Disqualification upheld: New Tekni Plex is a former client of M&L, there is a substantial relationship between the current and former representations, interests are materially adverse. o New Tekni-Plex is without authority to assert the attorney-client privilege to preclude M&L from revealing to Tang the contents of the communications conveyed by old

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Downloaded From OutlineDepot.com Tekni-Plex concerning the merger transactionNew Tekni Plex also does not control M&Ls files relating to its prior representation of old Tekni-Plex during the acquisition. Rule: Where efforts made to run the pre-existing business entity and manage its affairs, successor management stands in the shoes of prior management and controls the attorney-client privilege with respect to matters concerning the companys operations. VS. The mere transfer of assets with no attempt to continue the pre-existing operation generally does not transfer the attorney client privilege.

In re Grand Jury Subpoena Rule: Joint defense agreement does not increase the # of parties whose consent is needed to waive the APC; it merely prevents disclosure of communication made in the course of preparing a joint defense by the third party to whom it was made. - A corporation may unilaterally waive the APC with respect to any communications made by a corporate officer in his corporate capacity, despite the existence of an indivicual APC relationship between him and the corporations counsel. - Individual claims of privilege fail because the oral joint defense agreement that they rely on cannot defeat OldCos express waiver of privilege. Holding: APC extends only to those communications that involved Roe and Moes individual rights and responsibilities arising out of their actions as officer of the corporation. Managers interest must yield to the shareholders interest in disclosure of the privileged materials. 5 factor test, individual must show - they approached lawyer to seek advice - They made it clear they sought advice in their personal capacity - Lawyer communicated with them in their personal capacity - Such communications were confidential, and - Did not concern corporate issues, though individual issues related to corporate ones can be privileged MR 4.3 DEALING WITH UNREPRESENTED PERSON In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure legal counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. Crime/Fraud exception 82 CLIENT CRIME OR FRAUD The privilege does not apply to a communication occurring when a client (a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud aiding a third person to do so, or (b) regardless of the clients purpose at the time of consultation, uses the lawyers advice or other services to engage in or assist in crime or fraud 93 CLIENT CRIME OR FRAUD

Work-product immunity does not apply to materials prepared when a client consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or to aid a third person to do so or uses the materials for such a purpose Does not include a client confession after theyve committed a crime and come to you for representation

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Downloaded From OutlineDepot.com In Re Sealed Case Rule: 2 requirements for waiver of crime/fraud privilege: - (1) Client must have made or received privileged information with the intent to further an unlawful act. - (2) Client must have carried out the crime/fraud Holding: Attorney client privilege not waived because it cannot be assumed that VP was acting on behalf of company when he decided to act illegally. Cannot reasonably infer from the meeting that the company was consulting its general counsel with the intention of committing a crim.

JOINT CLIENTS 75 THE PRIVILEGE OF CO-CLIENTS (1) If two or more persons are jointly represented by the same lawyer in a matter, a communication of either co-client that otherwise qualifies as privileged under 68-72 and relates to matters of common interest is privileged as against third persons, and any coclient may invoke the privilege, unless it has been waived by the client who made the communication. (2) Unless the co-clients have agreed otherwise, a communication described in Subsection (1) is not privileged as between the co-clients in a subsequent adverse proceeding between them. IF a conflict develops between joint clients, you should get out of the conflict, maybe you can keep one of them or just walk out of the whole thing. When you get out there is no joint client relationship and there are no communications subject to the joint client relationship exception Eureka - Clients are insured and insurer and they disagreed - Insurer wanted access to documents claiming that because those communications were generated during the attorneys joint representation of the parties on the claim against the insured, they were discoverable in an action between the joint clients. - The court ruled that the policy behind the co-client privilege, to encourage openness and cooperation between joint clients, does not apply to matter known at the time of communication not to be in the common interest of the attorneys two clients. WAIVER 78 AGREEMENT, DISCLAIMER, OR FAILURE TO OBJECT The attorney-client privilege is waived if the client, the clients lawyer, or other authorized agent of the client: (1) agrees to waive the privilege (2) disclaims protection of the privilege and a. another person reasonably relies on the disclaimer to that persons detriment, or b. reasons of judicial administration require that the client not be permitted to revoke the disclaimer (3) in a proceeding before a tribunal, fails to object properly to an attempt by another person to give or exact testimony or other evidence of a privileged communication. 79 SUBSEQUENT DISCLOSURE

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The attorney-client privilege is waived if the client, the clients lawyer, or other authorized agent of the client voluntarily discloses the communication in a non-privileged communication. 80 PUTTING ASSISTANCE OR A COMMUNICATION IN ISSUE (1) The attorney-client privilege is waived for any relevant communication if the client asserts as to a material issue in a proceeding that: a. The client acted upon the advice of a lawyer or that the advice was otherwise relevant to the legal significance of the clients conduct, or b. A lawyers assistance was ineffective, negligent, or otherwise wrongful. (2) The attorney-client privilege is waived for a recorded communication if a witness: a. Employs the communication to aid the witness while testifying, or b. Employed the communication in preparing to testify, and the tribunal finds that the disclosure is required in the interests of justice Inadvertent Disclosure - 78-80 - MR 4.4(b) State Compensation Insurance Fund v WPS If you get a document from an opposing party that looks like a privilege, there is only one way to deal with it, you look at the document only long enough to ascertain to have reason to think its privileged, you stop reading it, you call the person that sent it to you, say I got this document and it looks like it was privileged, is this a screw up or did you decide to waive or what? Usually they will have a messenger waiting to retrieve it. If you think it was wrongly withheld you are then supposed to move to compel it to production and fight the privilege out waiver focuses on the holder of privilege, which is client client may waive expressly or by implication o express may be verbal or by conduct lawyer is clients agent o acts of lawyer bind client o but not all of them note three different approaches (n. 154) Burden on complaining lawyer to show inadvertence

3 Approaches to Inadvertent Disclosure Problem - (1) Strict responsibility Clients (and lawyer by agency theory) intent is irrelevant - (2) Balancing approach to render decision - (3) Focus on Intent No Matter what Approach is used the final determination of whether an assertion of the APC will be upheld in an inadvertent disclosure context depends upon whether the client either expressly or impliedly waived the privilege. - If disclosure amounts to a waiver then the party receiving the information may study and use the info without penalty - If disclosure does not amount to a waiver, then the lawyer who receives it may be disqualified from further involvement in the case if he studied the info Zerlene v. Mitsubishi Motors - Rule: Attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged. Once it becomes apparent that it is privileged, counsel must immediately notify opposing counsel and try to resolve the situation. Court will apply the reasonableness standard what would reasonably competent counsel do,

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Downloaded From OutlineDepot.com knowing the circumstances of litigation, would have concluded the materials were privileged (Disqualification risk) Holding: Opposing counsel violated rule when he took advatage of inadvertently disclosed information, then acted unethically in making use of it DQ approapriate

Deliberate Disclosure Von Bulow Book about Trial/Case Rule: The clients offer of his own or the attorneys testimony as to a specific communication to the attorney is a waiver as to all other communications to the attorney on the same matter Holding: Extra-judicial disclosure of attorney-client communication does not waive the privilege as to undisclosed portions of the communication. Waiver occurred here to particular matters discussed in the book, but this waiver cannot be broadened to waiver of discussions that were not published Selective and Partial Waiver - Selective waiver permits the client who has disclosed privileged communications to one party to continue asserting the privilege against other parties - Partial waiver permits a client who has disclosed a portion of the privileged communications to continue asserting the privilege as to the remaining portions of communications Disclosure Within Another Privileged Relationship - Disclosure of a privileged communication within the scope of some other privilege is not a waiver o Ex: Spousal privilege Common Interest Exception to Waiver = Prisoners Dillemma - 2 or more parties want to cooperate but are unwilling/unable to be represented as joint clients by a lawyer INTEREST EXCEPTION 76 THE PRIVILEGE IN COMMON-INTEREST ARRANGEMENTS (1) If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged under 68-72 that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication. (2) Unless the clients have agreed otherwise, a communication described in subsection (1) is not privileged as between clients described in subsection (1) in a subsequent adverse proceeding between them Common Interest Exception An agreement among parties with a common legal interest to keep confidential communications among them with respect to that interest Exception is not a privilege, no common interest privilege For this to have any affect, there are a series of steps that have to occur: 1) the communication has to be privileged in the first place a. dont let clients talk to other clients

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Downloaded From OutlineDepot.com b. client 1 talks to lawyer 1 who talks to lawyer 2 who talks to client 2 c. can lawyer 1 talk to client 2? We dont know, not settled, one case in 3rd circuit says that it is not within the scope of the exception Normally would be a waiver when L1 talks to L2, but an exception that there was no waiver occurred there USA v. Stepney Rule: DQ is proper where a party seeking DQ can show that an attorney for another defendant actually obtained relevant confidential information through a joint defense agreement. - Each JDA submitted must explicitly state that it does not create an attorney-client relationship, with provisions conditionally waiving confidentiality, and must explicitly allow withdrawal upon notice Holding: Attorney who has client in JDA does NOT owe duty of loyalty to all defendants in JDA. Lawyer/Client may contract to create this additional duty. Oxy v. Sup Court Rule: Evidence code does not allow creation of new privileges. Documents must fit either work product or attorney-client privilege Holding: JDA does not protect documents from disclosure. The court must first conclude the information contained in the documents is protected from disclosure by attorney-client privilege or work product. Then court must determine whether disclosures are reasonably necessary to accomplish purpose for which the parties consulted attorneys. WORK PRODUCT DOCTRINE A. The Basic Doctrine Sources of information attorney has acquired from factual investigations including inquiries, interviews, and witness selection have work-product like quality o Ex: 400 witnesses available to interview, attorney uses judgment to select 2, that selection is protected by work-product doctrine Selection on front end is work product Selection of certain types of documents to examine also work product Distinguish: underlying facts on document attorney reviews not protected o Work product does protect what comes out on the other side after attorney reviews those documents Attorney-Client Privilege Work-Product Doctrine PROTECTS Confidential communications relating to Mental impressions of counsel; other work representation done on behalf of client in preparation for litigation CONTROLLED Client Lawyer BY EXCEPTIONS Crime-fraud, self-defense, prevent Crime-fraud; self-defense death/GBI Hickman v. Taylor Rule: General policy against invading lawyers privacy is so well recognized that burden rests on the one who would invade privacy to justify production, through subpoena or court order Holding: This is an attempt without necessity to secure written statements prepared by adverse counsel in the course of legal duty. Therefore it falls outside the arena of discover and the documents do not need to be produced. Ordinary v. Opinion Work Product Upjohn

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Downloaded From OutlineDepot.com Rule: Where relevant and non-privileged facts remain hidden in attorneys file and where production of those facts is essential to the preparation of ones case, discovery may be properly had. Production may also be justified where witnesses are no longer available or can only be reached with difficulty. Court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative. Holding: A far stronger showing of necessity and unavailability by other means would be necessary to compel disclosure Prepared in Anticipation of Litigation Requirement US v. Aldman Rule: Where a document is created because of the prospect of litigation, analyzing the outcome of that litigation does not lose protection because it was prepared to assist with a business decision Holding: Document at issue does not need to be disclosed. Court can order production for which litigant makes adequate showing and focus its attention of whether the document or any potion of it should be disclosed, while retaining the authority to protect against disclosure of the mental impressions, strategies, and analyses concerning litigation REQUIREMENTS OF AND RELATING TO THE DUTY OF CARE MR 1.1 COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. MR 1.2(c) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent

MR 1.3

DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client MR 1.4 COMMUNICATION

(a) A lawyer shall: (1) Promptly inform the client of any decision or circumstance with respect to which the clients informed consent, as defined in Rule 1.0(e) is required by these rules (2) Reasonably consult with the client about the means by which the clients objectives are to be accomplished (3) Keep the client reasonably informed about the status of the matter (4) Promptly comply with reasonable requests for information, and (5) Consult with the client about any relevant limitation on the lawyers conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 16 A LAWYERS DUTIES TO A CLIENT IN GENERAL

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Downloaded From OutlineDepot.com To the extent consent with the lawyers other legal duties and subject to the other provisions of this restatement, a lawyer must, in matters within the scope of the representation: (5) proceed in a manner reasonably calculated to advance a clients lawful objectives, as defined by the client after consultation; (6) act with reasonable competence and diligence (7) comply with obligations concerning the clients confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client; and (8) fulfill valid contractual obligations to the client

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LAWYERS DUTY TO INFORM AND CONSULT WITH A CLIENT (1) a lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by a lawyer under 21-23 (2) a lawyer must promptly comply with a clients reasonable requests for information (3) a lawyer must notify a client of decisions to be made by the client under 21-23 and must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation

48

PROFESSIONAL NEGLIGENCE ELEMENTS AND DEFENSES GENERALLY

In addition to the other possible bases of civil liability described in 49, 50 and 56, a lawyer is civilly liable for professional negligence to a person to whom the lawyer owes a duty of care within the meaning of 50 or 51, if the lawyer fails to exercise care within the meaning of 52 and if that failure is a legal cause of injury within the meaning of 53, unless the lawyer has a defense within the meaning of 54. 49 BREACH OF FIDUCIARY DUTY GENERALLY

In addition to the other possible bases of civil liability described in 48, 55, and 56, a lawyer is civilly liable to a client of the lawyer breaches a fiduciary duty to the client set forth in 16(3) and if that failure is a legal cause of injury within the meaning of 53, unless the lawyer has a defense within the meaning of 54. 50 DUTY OF CARE TO A CLIENT

For purposes of liability under 48, a lawyer owes a client the duty to exercise care within the meaning of 52 in pursuing the clients lawful objectives in matters covered by the representation. 52 THE STANDARD OF CARE (1) For purposes of liability under 48 and 49, a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances. (2) Proof of a violation of a rule or statute regulating the conduct of lawyers: a. Does not give rise to an implied cause of action for professional negligence or breach of fiduciary duty b. Does not preclude other proof concerning the duty of care in subsection (1) or the fiduciary duty, and c. May be considered by a trier of fact as an aid in understanding and applying the standard of subsection (1) or 49 to the extent that (i) the rule or statute was

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Downloaded From OutlineDepot.com designed for the protection of persons in the position of the claimant and (ii) proof of the content and construction of such a rule or statute is relevant to the claimants claim. 53 CAUSATION AND DAMAGES

A lawyer is liable under 48 or 49 only if the lawyers breach of a duty of care or breach of fiduciary duty was a legal cause of injury, as determined under generally applicable principles of causation and damages 54 DEFENSES, PROSPECTIVE LIABILITY WAIVER; SETTLEMENT WITH A CLIENT (1) Except as otherwise provided in this section, liability under 48 and 49 is subject to the defenses available under generally applicable principles of law governing respectively actions for professional negligence and breach of fiduciary duty. A lawyer is not liable under 48 or 49 for any action or inaction the lawyer reasonably believed to be required by law, including a professional rule. (2) An agreement prospectively limiting a lawyers liability to a client for malpractice is unenforceable (3) The client or former client may rescind an agreement settling a claim by the client or former client against the persons lawyer if: a. The client or former client was subjected to improper pressure by the lawyer in reaching the settlement or b. (i) the client or former client was not independently represented in negotiating the settlement, and (ii) the settlement was not fair and reasonable to the client or former client (4) For purposes of professional discipline, a lawyer may not: a. Make an agreement prospectively limiting the lawyers liability to a client for malpractice, or b. Settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate for connection therewith. 55 CIVIL REMEDIES OF A CLIENT OTHER THAN MALPRACTICE (1) A lawyer is subject to liability to a client for injury caused by breach of contract in the circumstances and to the extent provided by contract law. (2) A client is entitled to restitutionary, injunctive, or declaratory remedies against a lawyer in the circumstances and to the extent provided by generally applicable law governing such remedies.

56

LIABILITY TO A CLIENT OR NONCLIENT UNDER GENERAL LAW

Except as provided in 57 and in addition to liability under 48-55, a lawyer is subject to liability to a client or nonclient when a nonlawyer would be in similar circumstances Civil Malpractice - MR 1.1-1.2; 1.3-1.4 - 16, 20, 48-49, 50-56 Beverly Hills v. SSRK Junior lawyers Rule: 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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Downloaded From OutlineDepot.com Holding: Junior lawyers are liable for malpractice if their passivity departs from the applicable standard of care Nichols v Keller Rule: Liability can exist when an attorney failed to provide advice, not only when requested but also when failed to volunteer opinions when necessary to further the clients objectives Elements of cause of action for PROFESSIONAL NEGLIGENCE - 1: Duty of professional to use skill as other members of profession exercise - 2: Breach of that duty - 3: Causal connection between negligent conduct and resulting injury - 4: Actual loss or damage resulting from professional negligence By accepting employment, attorney impliedly agrees to use ordinary judgment, skill, care, and diligence in the performance of the tasks he/she undertakes Holding: A lawyer who signs an application fro adjudication of a workers compensation claim and a lawyer who accepts a referral to prosecute the claim owe the claimant a duty of care to advise available remedies, including third-party actions (TORT) Causation and Damages Viner v. Sweet No such thing as breach of cause of action for breach of disciplinary rule - Causation in both litigation and transactional work requires both but for and proximate cause, requires demonstrate but for wrongful act your client would have come out better, in litigation thats relatively straight forward, trial in a trial, in the malpractice trial you put on the duty evidence and the breach evidence and you put on the causation case with a minitrail where you try the underlying matter within the malpractice suit Limitations and Tolling - Limitations period for claims against lawyers very short (1 year) o TOLLED during period while lawyer continues to represent client o Tactic: lawyer has duty to keep client informed under duty of care. Lawyer must fess up to client if he makes mistake. Must blow whistle on himself, pick up phone, and call client. MAY NOT double down! Longer lawyer continues to represent his client in an effort to fix his mistake, the longer the limitations period is tolled. Varies from state to state CA: 1 year after P discovers (or would have discovered) the facts constituting the wrongful act/ omission, OR 4 years from the date of the wrongful act/omission, whichever occurs first 2 questions: o 1. When an injury occurs o 2. When a lawyer continues to represent a client Until the client suffers applicable harm as a consequence of the attorneys negligence, the client cannot establish a cause of action for malpractice Period is tolled from when lawyer commits act to when P sustains actual injury o Speculative injuries are those which do not yet exist Continuous representation tolls the limitations period even if the client is aware of the act or omission at issue o Representation may be deemed continuous where a hiatus separates a completion of transaction on behalf of a client and resumption of legal activities after a problem arises, many years later May continue even after a client has replaced the attorney with another

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Failure to withdraw from representation will not, by itself, toll limitations period where facts otherwise indicate the representation has ended Representation ends when client has or reasonably should have no expectation that the attorney will provide further legal services If attorney remains silent, may be inferred from circumstances o Representation by one attorney does not toll claims that may exist with unaffiliated attorney When lawyer leaves firm and takes client, firm loses all ability to mitigate damage to the client Duty of loyalty would demand disclosure to inform client when he has legal malpractice action against you Attorney who realizes she made mistake must immediately notify client of the mistake as well as the clients right to obtain new counsel and sue the attorney for negligence Attorney may not settle with client until attorney has informed client and has withdrawn from case Even core fiduciary duty claims are subject to the limitations period for malpractice Client may have3 claims: breach of K, malpractice, breach of fiduciary duty Client will often plead same facts on each claim and seek same relief on each claim o Duty of care Malpractice claim o Duty of loyalty Breach of fiduciary duty claim Distinction may affect burden of proof, manner of proof, availability of punitive damages How to establish claim: Burden of proof: transactions voidable by client unless lawyer can demonstrate they are fair (differs from normal cases where P bears BOP) Manner of proof: P must establish reasonable standard of care in relevant practice field and geographic area o Expert testimony used if standard not obvious to lay juror Availability of punitive damages: o Malpractice: NO o Breach of fiduciary duty: YES Disloyal conduct= true fiduciary claim

Fee discouragement under the restatement you can be forced to give back to your client fees theyve paid you on the ground that you have breached a serious duty to the client, restatement 37, it can be a remedy even if the client has not suffered any injury Lawyer engaging in a clear and serious violation of duty to a client may be required to forfeit some or all of the lawyers compensation for the matter o Relevant considerations: Gravity and timing of the violation Willfulness

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Effect on the value of the lawyers work for the client Any other threatened harm to the client Adequacy of other remedies Malpractice damages can be greater or smaller than the forfeited fees o Conduct constituting malpractice is not always the same as conduct warranting fee forfeiture Ex: lawyers negligent research is malpractice but would not warrant fee forfeiture Disgorgement less closely associated with loyalty violations o Jurisdictions disagree with whether client seeking disgorgement must show they were harmed by the breach of duty Think of disgorgement in relation to the facts of particular cases o In cases where lawyer deliberately advances self-interest either at the clients expense or using the clients information, standard principles of agency law hold that the lawyer must account to the client for the profits earned from the relevant conduct Breach of duty does NOT have to be intentional to warrant disgorgement

Criminal Malpractice different from civil - Actual innocence rule if your counsel is ineffective, you have a potential remedy of vacating your conviction and getting a new trial so we dont need to give you a malpractice remedy - The plaintiffs are not complaining the lawyer did a bad job but charged too much, so excessive fee is one you can maintain even if you had been acquitted o Things like fees are not barred by actual innocence rule, things like malpractice are W&W v. Nagelberg Rule: Actual Innocence Rule: A criminal defendant who files a malpractice claim against her criminal defense attorney must plead and prove that she was exonerated of the criminal conviction Holding: Overcharge for attorneys fees not barred by actual innocence rule. However, lawyer cannot be held liable for malpractive for failing to get P acquitted if P of not actually innocent of crime accused. Strickland v Washington ineffective assistance of counsel Question what is effective counsel and how do we know if it was effective? Was the conduct outside of the wide range of reasonableness? If the conduct is not outside the wide range of reasonableness, you lose, counsel is effective If it is outside the wide range then you ask to see if the defendant can show prejudice is there a reasonable probability that but for counsels unprofessional errors the result would have been different 2 conceptions of what trials are supposed to do fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceedings (Fair Fight); the benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trail cannot be relied on as having produced a just result (Right Person) If youve done a full investigation, unlikely to be held incompetent, if youve done a partial investigation and made a decision off of that then theyll look more into it A decision in and of itself can be the basis of a Strickland reversal, just look at the judgment call, anytime you see one that bad, this comes up

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LIABILITY TO NON-CLIENTS 51 DUTY OF CARE TO CERTAIN NONCLIENTS

For purposes of liability under 48, a lawyer owes a duty to use care within the meaning of 52 in each of the following circumstances: (1) to a prospective client, as stated in 15, (2) to a nonclient when and to the extent that: a. the lawyer or (with the lawyers acquiescence) the lawyers client invites the nonclient to rely on the lawyers opinion or provision of other legal services, and the nonclient so relies, and b. the nonclient is not, under applicable tort law, too remote from the lawyer to be entitled to protection (3) to a nonclient when and to the extent that: a. the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyers services benefit the nonclient b. such a duty would not significantly impair the lawyers performance of obligations to the client, and c. the absence of such a duty would make enforcement of those obligations to the client unlikely (4) to a non client when and to the extent that: a. the lawyers client is a trustee, guardian, executor, or fiduciary acting primarily to perform similar functions for the nonclient b. the lawyer knows that appropriate action by the lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach of a

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Downloaded From OutlineDepot.com fiduciary duty owed by the client to the nonclient, where (i) the breach is a crime or fraud or (ii) the lawyer has assisted or is assisting the breach c. the nonclient is not reasonably able to protect its rights, and d. such a duty would not significantly impair the performance of the lawyers obligations to the client.

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LIABILITY TO A CLIENT OR NONCLIENT UNDER GENERAL LAW

Except as provided in 57 and in addition to liability under 48-55, a lawyer is subject to liability to a client or nonclient when a nonlawyer would be in similar circumstances 57 NONCLIENT CLAIMS CERTAIN DEFENSES AND EXCEPTIONS TO LIABILITY (1) in addition to other absolute or conditional privileges, a lawyer is absolutely privileged to publish matter concerning a nonclient if: a. the publication occurs in communications preliminary to a reasonably anticipated proceeding before a tribunal or in the institution or during the course and as a part of such a proceeding b. the lawyer participates as counsel in that proceeding, and c. the matter is published to a person who may be involved in the proceeding, and the publication has some relation to the proceeding (2) A lawyer representing a client in a civil proceeding or procuring the institution of criminal proceedings by a client is not liable to a non-client for wrongful use of civil proceedings or for malicious prosecution if the lawyer has probable cause for acting, or if the lawyer acts primarily to help the client obtain a proper adjudication of the clients claim in that proceeding (3) A lawyer who advises or assists a client to make or break a contract, to enter or dissolve a legal relationship, or to enter or not enter a contractual relation, is not liable to a nonclient for interference with contract or with prospective contractual relations or with a legal relationship, if the lawyer acts to advance the clients objectives without using wrongful means.

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VICARIOUS LIABILITY (1) a law firm is subject to civil liability for injury legally caused to a person by any wrongful act or omission of any principal or employee of the firm who was acting in the ordinary course of the firms business or with actual or apparent authority (2) Each of the principals of a law firm organized as a general partnership without limited liability is liable jointly and severally with the firm (3) A principal of the law firm organized other than as a general partnership without limited liability as authorized by law is vicariously liable for the acts of another principal or employee of the firm to the extent provided by law.

Duties To Parties Related to Client - 51 Meighan v Shore he had heart attack, hospital went too slow with helping him, went to lawyer and lawyer signed up husband as client and said you have a malpractice claim, later on another lawyer said that they might have a loss of consortium claim. - Court held the lawyer was not allowed to keep the loss of consortium claim to himself even if he did not want to act on it he must inform the client and clients wife

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Downloaded From OutlineDepot.com Determination of Whether Lawyer will be held Liable is done under these Policy Factors:

1) the extent to which the transaction was intended to affect the 3rd party 2) Foreseeability of harm to 3rd party 3) Certainty that 3rd party suffered injury
4) Closeness of connection between respondents conduct and injury 5) Policy of preventing future harm 6) Whether recognition of liability under the circumstances would impose an undue burden on the profession Turns on privity Also think about the fact that its a community property state so whatever money she got, he would have gotten too so should have recommended that for him as your client Foreseeability here about as easy as it is on proximate cause Different here from Nichols and Keller is here you were doing a full job for someone, there you were doing a partial job for them Triangular Duty Relationships: Arises when your representation of a client is related to your clients relations with some third party in a way that recognizing a duty running from you to the third party advances the purpose of your representation. 3 types: 1. Lawyer invites a third party to rely on the lawyer a. Ex: opinion letter opinion letter unambiguously creates duties because lawyer inviting reliance 2. Based on clients intentionlawyer owes duty to third party when lawyer knows that the client intends the lawyers services to benefit the third party, imposition of duty would not impair lawyers obligation to client, and absence of duty would make it unlikely the third party could enforce the lawyers obligations to the client a. Ex: client retains a lawyer to draft a will leaving assets to third party 3. Clients status as one who acts on behalf of and for the benefit of a third party a. Ex: clients who act as trustees, guardians, executors client owes fiduciary duty to third party (office of the trustee) you do not represent the person, you represent the function b. May arise regardless if client intends lawyer to act for third party where third party cannot protect own rights c. Some jurisdictions have pass through that says if you see the trustee looting or doing something bad, you have obligation to stop them because your duty passes through to beneficiaries d. Ex: Miley Cyrus Billy Ray has control of her accounts. If her lawyer sees Billy Ray taking Mileys $$ he had a duty to tell her dad to stop committing crime. (Tactic: document it and get out, do not want to be in situation of someone stealing $ from beneficiaries.) Lawyer owes duty to and may be sued by third party in all of the above cases Notion of fraud very important o When attorney undertakes to represent the guardian of an incompetent, he assumes a relationship with the guardian and ward. owes both fiduciary duty o Hypo: if layer represents trustee and bank, it must inform beneficiaries if conflict of interest arises, etc. Issues with how far courts will go with expansion Some courts hold trustee under no duty to disclose privileged communications relating to trust administration to beneficiaries Court argued that attorney only represented trustee and NOT beneficiaries

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Duties run to successor fiduciary of trustwhen one trustee replaces another, the successor trustee controls the privilege regarding communications between counsel and the predecessor trustee in his capacity as trustee Duty to beneficiary cannot be assumed in situation in which the interests of the fiduciary and beneficiary are adverse If beneficiary loses assets due to lawyers mistake lawyer is liable VS. if lawyer modifies trust to benefit trustee, he is not liable for beneficiaries that may incidentally lose assets Family relationship no defense to misconduct- do not rely on things family members tell you without double checking them, you will be liable for family members misrepresentation o Hypo: Brother in law lies, then hangs himself. I wrote letter that says I did search when I did not, now I can be sued for $3 million that he owed even though he told me I didnt need to search.

Misrepresentation - MR 4.1 - 56, 98 Model Rule 4.1: Truthfulness in Statements to Others In the course of representing a client, a lawyer shall not knowingly: 1. Make a false statement of material fact or law to a third party; OR 2. Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited. Restatement 98: Statements to a Non-client A lawyer communicating on behalf of a client with a nonclient may not: 1. Knowingly make a false statement of material fact or law to the nonclient; 2. Make other statements prohibited by law; OR 3. Fail to make a disclosure of information required by law. You may as a lawyer create a duty to a 3rd party thru invitation, give them reason to rely upon you by something such as an opinion letter, you invite someone to rely on you, the way to vindicate their reliance interest is giving them a cause of action against you Clients intention is like third party benefit, client retains letter for purpose of conferring benefit on 3rd party Status cases is where the status creates a duty (guardian, minor; guardian, elderly) by virtue of representing a client with respect to their duties to the 3rd party, you may have duty to that 3rd party now Cicone v URS Rule: Duty is owed by attorney not to defraud another, even if the attorney is negotiating at arms length. A promise made without any intention to perform constitutes actionable fraud. Negligence in reliance upon a misrepresentation is not a defense where the misrepresentation was intentionally made to induce reliance upon it. Holding: URS owed opposing counsel a duty of care to abstain from misrepresentation and deceit. Attorney must not engage in deceit, and must take pains to avoid negligent misrepresentation Secondary Liability Aiding and Abetting sometimes you just help people commit unlawful acts Reynolds v. Shrock Rule: A lawyer may not be held jointly liable with a client for the clients breach fiduciary duty unless the third party shows that the lawyer was acting outside the scope of the attorney-client relationship

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Downloaded From OutlineDepot.com Holding: No evidence existed to show the lawyer acted outside scope of laywer-client relationship. As default matter restatement thinks if you help someone commit a tortuous act, you are an aider and abettor - 3 ways persons acting in concerts may be held accountable for each others tortuous conduct: - For harm resulting to a third party from the tortuous conduct of another, one is subject to liability if he: (a) does a tortuous act in concert with the other or pursuant to a common design with him, or (b) knows that the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or gives substantial assistance to the other in accomplishing a tortuous result and his (c) own conduct, separately considered, constitutes a breach of duty to the third person MR 2.3 EVALUATION FOR USE BY THIRD PERSONS

(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyers relationship with the client (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the clients interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6. 95 AN EVALUATION UNDERTAKEN FOR A THIRD PERSON (1) In the furtherance of the objectives of a client in a representation, a lawyer may provide to a nonclient the results of the lawyers investigation and analysis of facts of the lawyers professional evaluation or opinion on the matter. (2) When providing the information, evaluation, or opinion under Subsection (1) is reasonably likely to affect the clients interests materially and adversely, the lawyer must first obtain the clients consent after the client is adequately informed concerning the important possible effects on the clients interests. (3) In providing the information, evaluation or opinion under Subsection (1), the lawyer must exercise care with respect to the nonclient to the extent stated in 51(2) and not make false statements prohibited under 98. MR 1.2(d) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. US v. Sarantos helps with criminal cases Rule: Lawyers cannot escape criminal liability on a plea of ignorance when they have shut hteir eyes to what was plainly to be seen. If a reasonable man who knew what a lawyer knew would

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Downloaded From OutlineDepot.com have inquired further and discovered illegal activity, then the lawyer is an aider and abettor. Deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires Holding: Lawyer found to have deliberately avoided acquiring unpleasant knowledge. In re matter of Scionti RULE - Lawyer may counsel a client to make a good faith effort to determine the validity, scope, meaning, and application of law and may refuse to comply with an obligation imposed by law on a good faith belief that no valid obligation exists, however belief must have merit and be reasonable under circumstances.

ASSUMING DUTIES MR 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyers role in the transaction, including whether the lawyer is representing the client in the transaction (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent (2) There is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship, and (3) Information relating to representation of a client is protected as required by Rule 1.6 (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilt or nolo contendere pleas, unless each client gives informed consent,

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Downloaded From OutlineDepot.com in a writing signed by the client. The lawyers disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement A lawyer shall not (1) Make an agreement prospectively limiting the lawyers liability to a client for malpractice unless the client is independently represented in making the agreement, or (2) Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting or the client except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyers fee or expenses, and (2) contract with a client for a reasonable contingent fee in a civil case A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced Whole lawyers are associated in a firm, a prohibition in the forgoing paragraphs (a) through (a) that applies to any one of them shall apply to all of them

(h)

(i)

(j) (k)

14

FORMATION FO A CLIENT-LAWYER RELATIONSHIP

A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the persons 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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A LAWYERS DUTIES TO A PROSPECTIVE CLIENT (1) When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, a lawyer must: a. Not subsequently use or disclose confidential information learned in the consultation, except to the extent permitted with respect to confidential information of a client or former client as stated in 61-67, b. Protect the persons property in the lawyers custody as stated in 44-46 and c. Use reasonable care to the extent the lawyer provides the person legal services (2) A lawyer subject to Subsection (1) may not represent a client whose interests are materially adverse to those of a former prospective client in the same or a substantially related matter when the lawyer or another lawyer whose disqualification is imputed to the lawyer under 123 and 124 has received from the prospective client confidential information that could be significantly harmful to the prospective client in the matter, except that such a representation is permissible if: a. (i) any personally prohibited lawyer take reasonable steps to avoid exposure to confidential information other than information appropriate to determine whether to represent the prospective client and (ii) such lawyer is screened as stated in 124(2)(b) and (c), or b. Both the affected client and the prospective client give informed consent to the representation under the limitations and conditions provided in 122.

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Think of duties in the same way you think of the bundle of rights in property, you can assume one of them or all of them but you dont necessarily have to assume all to assume one Duty of confidentiality: Begins when L accepts confidential information from C DUTY OF CONFIDENTIALITY Confidences received from prospective clients who dont hire you: o Must keep information received during client beauty shopping confidential o Risk is that this may disqualify you from future work - Checklist: (i) Does lawyer owe client duty; (ii) Can lawyer be DQd from representing adverse client?; (iii) If lawyer does anything to hurt client, can they be sued civilly? RULE FOR CONFLICTS: When you have confidential information from client, you may not be adverse to former client on matter substantially related to representation, and may not be adverse to current client at all Bridge Products v. Quantum Chemical - Can you be disqualified because of confidences from non-clients? Yes. Internet Communications Barton v. USDC Rule: Clients communication is confidential to lawyer if made in course of relationship. IT is not required that lawyer agree to represent client at time communication is made, extends to preliminary consultation necessary as policy because potential clients must be able to tell lawyers their private business without fear of disclosure Holding: Communications made in questionnaire are confidential and cannot be accessed by others Confidences from Parties Related to Clients Westinghouse v. Kerr-McGee Rule: o (1) Law Firm cannot represent two clients with conflicting interests, violation of duties o (2) There is no basis for creating separate disqualification rules for large firms even though the burden of complying with ethical considerations will naturally fall more heavily upon their shoulders Holding: The fact that 2 contrary undertakings by law firm occurred contemporaneously with each involving substantial stakes and substantially related to the other outbalances the clients interest in continuing with the chosen attorney DUTY OF CARE Togstad - Lawyer tells her that he said he didnt think they had a legal case but would talk about it with his partner, he says that he told her that there was nothing in her facts that his firm was interested in undertaking Duty of care: Begins when L renders advice to C

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Downloaded From OutlineDepot.com Rule: When an attorney is consulted about whether he will take a case, he can refuse without duty attaching. However, when he renders legal opinion, duty of care attaches to advice the attorney gives. 1 and only one way to take a case and 1 and only one way to get rid of a case and 1 and only one way to leave a firm -

1) you get a call from a prospective client asking for your services, initial impulse is to try to
reel them in, that is wrong. First thing you do before you give advice or before you find out any confidential information you ask who are the adverse parties (ALL of them). Get a number where you can reach them in 2-3 minutes, hang up the phone or ask them to wait in the waiting room check your conflicts data base to see if there are any conflicts with those you obligations too now you can either accept the client or decline the client

2) 3)

Advertising and Solicitation 7.1-7.3 - MR 7.1 No Lying - MR. 7.2 You can advertise but cannot pay for testimonials - MR 7.3 No for-profit solicitation Communication is a generalized expression that outs your services and makes people want to hire you Solicitation is inside of that Basic rule is neither of those can be misleading Public interest lawyers get a lot of leeway on solicitation/advertisement Solicitation more closely regulated than advertising Written materials get more leeway than verbal pitches Advancing Clients Money - MR 1.8(e) o You may not provide financial assistance to a client before their trial (give them an interest free loan) basically outlaws auctions by clients, to see which lawyer will give them the most money Oklahoma Bar Association v. Smolen Rule: Lawyer can only loan money to client to cover litigation and court costs Holding: Because of potential ethical problems that could arise from a lawyer advancing clients money for living expenses, the explicit prohibition against such conduct is constitutional and the lawyer is subject to discipline. Alternative Funding Mechanisms (Civil Only) - Lawyers cannot advance clients cash, but in some jurisdictions they can direct clients to third party who fund litigation through cash advances o Though misleading because typically the advances do not have to be repaid unless the P borrower receives money from the case.

Limitations on ability to form duties or refuse to form duties

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MR 1.16(a)

DECLINING OR TERMINATING REPRESENTATION

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if (1) the representation will result in violation of the rules of professional conduct or other law (2) the lawyers physical or mental condition materially impairs the lawyers ability to represent the client, or (3) the lawyer is discharged. 1.16 says that a lawyer shall not represent a client or shall withdraw if the representation will result in violation of model rules or other law Law practice includes everything and in the management of a law practice you shall not unlawfully permit unlawful discrimination in hiring, promoting, discharging or accepting or turning away representation of client Stropnicky v. Nathanson - Rule: Attorney or law office holding itself our as open to the public may not reject a potential client solely on the basis of his gender or some other protected class. - Complainant may establish a prima facie case of discrimination by showing: o (1) He is a member of a protected class o (2) Denied access to/ use of o (3) A place of public accommodation TERMINATING DUTIES MR 1.16 (b)-(d) DECLINING OR TERMINATING REPRESENTATION

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client (2) the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent (3) the client has used the lawyers services to perpetuate a crime or fraud (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client or (7) other good cause for withdrawal exists (c) a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

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TERMINATION OF A LAWYERS AUTHORITY (1) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation and with an order of a tribunal requiring the representation to continue. (2) Subject to Subsection (1) and 33, a lawyers actual authority to represent a client ends when (a) the client discharges the lawyer (b) the client dies or, in the case of a corporation or similar organization, loses its capacity to function as such, (c) the lawyer withdraws, (d) the lawyer dies or becomes physically or mentally incapable of providing representation, is disbarred or suspended from practicing law, or is ordered by a tribunal to cease representing a client, or (e) the representation ends as provided by contract or because the lawyer has completed the contemplated services. (3) A lawyers apparent authority to act for a client with respect to another person ends when the other person knows or should know of facts from which it can be reasonably inferred that the lawyer lacks actual authority, including knowledge of any event described in Subsection (2).

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DISCHARGE BY A CLIENT AND WITHDRAWAL BY A LAWYER (1) Subject so Subsection (5), a client may discharge a lawyer at any time. (2) Subject to Subsection (5), a lawyer may not represent a client or, where representation has commenced, must withdraw from the representation of a client if: a. The representation will result in the lawyers violating rules of professional conduct or other law b. The lawyers physical or mental condition materially impairs the lawyers ability to represent the client or c. The client discharges the lawyer (3) Subject to subsections (4) and (5), a lawyer may withdraw from representing a client if: a. Withdrawal can be accomplished without material adverse effect on the interests of the client b. The lawyer reasonably believes withdrawal is required in the circumstances stated in subsection (2) c. The client gives informed consent d. The client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal, fraudulent, or in breach of the clients fiduciary duty e. The lawyer reasonably believes the client has used or threatens to use the lawyers services to perpetrate a crime or fraud f. The client insists on taking action that the lawyer considers repugnant or imprudent g. The client fails to fulfill a substantial financial or other obligation to the lawyer regarding the lawyers services and the lawyer has given the client reasonable warning that the lawyer will withdraw unless the client fulfills the obligation h. The representation has been rendered unreasonably difficult by the client or the irreparable breakdown of the client-lawyer relationship i. Other good cause for withdrawal exists

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Downloaded From OutlineDepot.com (4) In the case of permissive withdrawal under subsections (3)(f)-(i), a lawyer may not withdraw if the harm that withdrawal would cause significantly exceeds the harm to the lawyer or others in not withdrawing (5) Notwithstanding Subsections (1)-(4), a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation and with a valid order of a tribunal requiring the representation to continue.

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A LAWYERS DUTIES WHEN A REPRESENTATION TERMINATES (1) in terminating a representation, a lawyer must take steps to the extent reasonably practicable to protect the clients interests, such as giving notice to the client of the termination, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee the lawyer has not earned. (2) Following termination of representation, a lawyer must: a. Observe obligations to a former client such as those dealing with client confidences, conflicts in interest, client property and documents (44-46), and fee collection (41) b. Take no action on behalf of a former client without new authorization and give reasonable notice, to those who might otherwise be misled, that the lawyer lacks authority to act for the client c. Take reasonable steps to convey to the former client any material communication the lawyer receives relating to the matter involved in the representation, and d. Take no unfair advantage of a former client by abusing knowledge or trust acquired by means of the representation

Hermine Hanlin v. Mitchelson - Rule: Withdrawing attorney must give a client clear and unambiguous notice of the attorneys intent to withdraw from representation. Lawyer shall not withdraw from representation until he has taken reasonable steps to avoid foreseeable prejudice to the rights of the client. - Holding: Status and scope of attorney client relationship prior to commencement of instant suit are unresolved questions. Fact of termination would not end the malpractice inquiry, questions would still remain about lawyers handling of termination NOTES - Your responsibility to make clear to your client when you end representation in some sort of tangible form (letter or e-mail) - Because if you dont then you continue to owe duties and loyalty and you extend the time which you could be sued for malpractice - Unless client thinks the relationship is at an end, its not. One of the two of you has to declare it over - It extends the period of time she counts as a client for conflict of interest period and the time she can sue you for malpractice - Sometimes if youre in front of a tribunal you cannot get out unless the tribunal lets you out Fact youre going to lose money on a case is not a cause for a withdrawal and it would prejudice your clients because they wouldnt be able to get any other lawyers and youve got a contingent fee

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Downloaded From OutlineDepot.com agreement which entails both the possibility of huge upside and huge downside, risk allocation agreement Whiting v. Lacara - Rule: Withdrawal required when client bringing legal action merely for the purpose of harassing or maliciously injuring another, or where conflict of interest develops between lawyer and client - Holding: Lawyer allowed to withdraw because conflict of interest between lawyer and client developed at oral argument, however court would normally not allow lawyer to withdraw on eve of trial when lawyer had notice he was taking on difficult client General Dynamics - Rule: In-house counsel can bring discharge tort claim against employer if attorney was discharged for following mandatory ethical obligation prescribed by professional rule or statute - Holding: Extra protection afforded to in-house counsel due to extra pressure from company to violate ethical rule. If lawyer is discharged for following MR he can bring tort claim against employer NOTES: You can bring breach of contract claim, retaliatory discharge claim you can only bring if you can find a way to get around the duty of confidentiality In house attorneys have a problem which is they only have one client to cover all their expenses, all their revenue, its a corporate culture, not a law office culture Court says they worry that a lawyer who is dependent on a single client is vulnerable to leverage to do the wrong thing because the threat to be fired is a threat to losing all of your income as opposed to a threat to loose just a tiny part of your income More your entire revenue is dependant on one client, more vulnerable you are to their influence Advice diversify your revenue base to make it easier to do the right thing If youre in house make sure you have a network so you can have a soft landing if you are out of there tomorrow You can fire a lawyer at any time you want, but if theyre in house theyre also your employee

CONFLICTS OF INTEREST MR 1.7(a) (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 lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 121 THE BASIC PROHIBITION OF CONFLICTS OF INTEREST

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Unless all affected clients and other necessary persons consent to the representation under the limitations and conditions provided in 122, a lawyer may not represent a client if the representation would involve a conflict of interest. A conflict of interest is involved if there is a substantial risk that the lawyers representation of the client would be materially and adversely affected by the lawyers own interests or by the lawyers duties to another client, a former client, or a third person. 128 REPRESENTING CLIENTS WITH CONFLICTING INTERESTS IN CIVIL LITIGATION

Unless all affected clients consent to the representation under the limitations and conditions provided in 122, a lawyer in civil litigation may not: (1) represent two or more clients in a matter if there is a substantial risk that the lawyers representation of one client would be materially and adversely affected by the lawyers duties to another client in the matter, or (2) represent one client to assert or defend a claim against or brought by another client currently represented by the lawyer, even if the matters are not related. Rule 1.0 definitions to know for this section (i) Reasonable belief or Reasonably believes when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (e) Informed Consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct There are related and unrelated matters and there are times when you are retained and when you have terminated representation You may not represent a party adverse to your client while you are representing your client You may not represent a client whose interests are adverse if the matter is substantially related to the representation of your former client Concurrent Related unrelated No representation of adverse interests Subsequent No rep on substantially related matters Rep OK absent substantial relationship

Conflicts Arising from Concurrent Representation Truck v. Fireman - Rule: Attorney who drops one client to take on another violates duty of loyalty. Attorney may not avoid breaching duty of loyalty which concurrent representation rule is to avoid, by unilaterally converting present client into former client. - Holding: Lawyer concurrently represented both clients and therefore violated duty withdrawal from representation of client 1 before the hearing of the motion to DQ did not convert concurrent representation into subsequent representation for purposes of assessing conflict To get informed consent you need to explain to a client why it might be bad for them to say yes and why it may be good for them to get another lawyer to advise them, anything short of that isnt good enough

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Downloaded From OutlineDepot.com Which clients are current? If you dont send a termination letter theyre more likely to be considered current If you dont do that then there are a couple cases IBM v Levin - Rule: where you have specific representation on specific matters that bracket a time where there is adverse representation when you dont have any pending IBM matters but you have a history of representing them. - If from the clients point of view, if they are reasonable in considering you their lawyer in a certain type of work, then a series of representations, even if theyre discrete can make it so that you are still deemed to represent them Comment 6 to MR 1.7 Directly Adverse - Parties are directly adverse when they sit across the table from one another (P v. D) o Similarly, a directly adverse conflict may arise when a lawyer is required to crossexamine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit. On the other hand, simultaneous representation NorthStar v. Mid-City - Rule: Any doubt as to whether a law firm should be disqualified is to be resolved in favor of disqualification. Law firm should not seek to compensate one client from the pockets of another NOTES: - Always draw pictures of conflicts - With conflicts, the standard of review is abuse of discretion - That means the judge basically makes a gut call on this and if it looks right or not Limitation on Counsels Ability to Represent Zealously - 1.7 (a)(2) - material limitation also creates a conflict - Model Rule 1.7(A)(2): Conflict of Interest: Current Clients - Except as provided in (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: There is a significant risk that the representation of 1 or more clients will be materially limited by the lawyers responsibilities to another client, a former client, or a third person by a personal interest of the lawyer. Fiandaca v. Cunningham - Rule: Loyalty to a client is impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyers other responsibilities or interests. Conflict in effect forecloses alternatives that would otherwise be available to the client. Remedies for Concurrent Conflicts - Most common remedy is to disqualify attorney from participating in pending litigation and the burden to prove that this should happen is on the moving party - In Determining whether DISQUALIFICATION is required the courts look at various factors: o (1) the nature of the ethical violation o (2) the prejudice to the parties, including the extent of actual or potential delay in the proceedings o (3) the effectiveness in light of the violations o (4) the publics perception of the profession

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Standing and Interlocutory Appeal Some sort of confidential or fiduciary relationship must have existed before a party is entitled to prevail on a motion to disqualify an attorney predicated on the actual or potential disclosure of confidential information o Does not need to be a party, however must have interest or be affected by outcome of litigation Appealing Disqualification: o Federal law does not allow for interlocutory appeals of disqualification orders as a matter of right Exception for collateral orders: Those that finally determine claims of right separable from, and collateral to, rights asserted in the action and are too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated USSC has held cases do not fall within this exception in both crim and civil o Alternative method available if controlling question of law as to which there is a substantial ground for difference of opinion and immediate appeal from order may materially advance ultimate termination of the litigation Courts construed this narrowly- it provides little hope for disqualified counsel

MR 6.3

MEMBERSHIP IN LEGAL SERVICES ORGANIZATION

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization servers persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision or action would be incompatible with the lawyers obligations to a client under Rule 1.7, or (b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer. MR 6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

A lawyer may serve as a director, officer, or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interest of a client of the lawyer. When the lawyer knows that the interests of the client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client Fiandaca no conflict on being able to fight zealously for their clients on the fact that the facilities were inadequate, but unable to recommend a remedy, thats direct adversity as well as a side constraint Positional conflicts are not conflicts because they do not create direct adversity for purposes of Rule 1.7(a). They are when a conflict arising from different positions on a legal question, rather than different legal or economic interests. The general rule is adverse positions do not count as adverse positions has an exception (Page 11)

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Downloaded From OutlineDepot.com Research Corp Tech v HP Sometimes if you can persuade a court that if youre not disloyal in a strong sense and can preserve confidentiality then you might not get thrown off the case. Not easy to do but if you can yay In addition to disciplinary consequences, suppose you have extensive legal expenses over a disqualification motion, who pays? You. If you have been found to have engaged in conflicted litigation, do you have to pay them back to BOTH clients? Yep. When youre sued for malpractice, a smart plaintiffs lawyer will tell a story about why you did something, they can tell it as you were greedy and selling their client down the river, or they can tell it and you were trying to be fair to both sides and unable to because you were being pulled in both directions Once representation ends, then you look to 1.9 (a) MR 1.9 DUTIES TO FORMER CLIENTS (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client 1. whose interests are materially adverse to that person and 2. about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter unless the former client gives informed consent, confirmed in writing (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter 1. use information relating to the representation to the disadvantage of the former client except as those rules would permit or require with respect to a client, or when the information has become generally known, or 2. reveal information relating to the representation except as these rules would permit or require with respect to a client. Subsequent conflicts of interest - Arising from representation adverse to former clients - MR 1.9 - 132 - Matters are substantially related if they involve the same transaction or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the clients position in the subsequent matter. - Same matter is easy cant switch sides in cases. - What is substantially related? Substantial relationship test is embodied in 1.9 NOTES: Not about loyalty but confidentiality

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Downloaded From OutlineDepot.com Look at Matter 1 and say what are the material facts? what other info might be material, look at elements of causes of action, defenses, jury instructions all of that to look back to figure out the relevant facts. Then do the exactly the same thing with Matter 2. Then see if they overlap. Dont look at what information you actually have, its what information is material to the case Other way: look at legal problem and nature of representation Playbook a book of a corporations policies like our firm will settle if it falls in this range or whatever, internal set of policies, all work product, if you switch firms and know stuff about the other firms playbook, then you can have a conflict and get disqualified, legitimate theory Sometimes subsequent disqualification cases are not about confidentiality but loyalty (ex: Brennans chicken case) you cannot attack your previous work, even if confidentiality isnt the issue Analytica v. NPD - Rule: Appearance of impropriety test is used to determine if a firm should be disqualified where it is very difficult to objectively verify that improper communication has taken place or will take place between lawyers in the firm handling 2 sides Maritrans v. Pepper - Rule: Factor test to determine whether fiduciary can represent competitors: o (1) Extent to which fiduciary was involved in former clients affairs o (2) Danger of confidences if revealed o (3) Substantial relationship between former representation and current representation - Holding: As fiduciary P can be fully enjoined from representing Ms competitors because it would create too great a danger that Ms confidential relationship would be breached Conflicts and Confidences obtained other than through representation Oaks Management v. Superior Court - When there is no attorney-client relationship (ex: lawyer sits on the board of directors, invests in a company, is a lender, just doing business transactions) and gets exposed to confidential information and subsequently as a lawyer runs across them adversely, may you be disqualified? No, unless there is some reason to believe that there is harm likely to result on misconduct from the attorney obtaining that information Conflicts in Criminal Cases Wheat v. US - Counsel laboring under an actual conflict of interest that adversely affects their performance are presumed ineffective; prejudice need not be shown - Courts may decline to allow defendants to waive conflicts, and prosecutors may complain of conflicts on the defense side of the case IMPUTATION OF CONFLICTS AND SCREENING MR 1.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does

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Downloaded From OutlineDepot.com not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client, and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7 (d) The disqualification of lawyers associated in a firm with former or current govt lawyers is governed by Rule 1.11

MR 1.11

SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVT OFFICERS AND EMPLOYEES

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the govt (1) is subject to rule 1.9(c) and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate govt agency gives its informed consent, informed in writing, to the representation. (b) When a lawyer is disqualified from a representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term confidential government information means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9 (2) shall not: i. participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or ii. negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally or substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b)

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Downloaded From OutlineDepot.com (e) As used in this Rule, the term matter includes: (1) Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and (2) Any other matter covered by the conflict of interest rules of the appropriate government agency Imputation of Knowledge and Screening - MR 1.10-1.11 - 123-124 Imputation concept by which information is imputed from lawyers to firms and can limit your mobility in moving from job to job Imputation from Lawyer to Firm - If you work directly with the client disqualified - I you worked on the periphery of the case with little interaction then you will not be DQd unless it is established that you received confidential information One tainted lawyer taints the entire firm to a matter, no matter how big the firm is Goldberg v Warner/Chappell Music - Rule: Exception to substantial relationship exists where there was no opportunity for confidential information to be divulged - Holding: Attorneys presumed possession of confidential information concerning former client should not automatically cause attorneys former firm to be vicariously DQed where evidence establishes that no one other than the departed attorney had any dealings with client or obtained confidential information Goldberg has an informal discussion with Salomon (or so he thought), he thought there was no formal representation but not true, he was told things and assumes duty of care and confidentiality, Salomon leaves the firm, Goldberg serves Warner/Chappell, then later on Salomon wants to represent the music company, Goldberg says you cant on a matter adverse to me and moves to disqualify the firm When the lawyer leaves the firm, the firm isnt prohibited unless 1 and 2 are both covered The language in (b)(2) not talking about substantial relationship test as a proxy if the lawyer has information, here youre assuming theres a substantial relationship and if any of the remaining lawyers have any information, direct inquiry if they actually have any and if any of that information that applies So if Salomon was the only one that has information and hes gone and no one else has any information on Goldbergs situation, then the presumption is gone and the firm can represent the music company Doesnt go from firms to lawyers 2 ways you can taint a lawyer When youre an associate, your job is to know the scope of your taint, have a list to know which matters you have confidential information on, keep it on going as you work, hard to go back and do it

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Downloaded From OutlineDepot.com Summer works counts and never ends When looking to see if firm remains the taint, look at things like the size of the firm. If its a 7 person firm where 3/7 are partners and its their biggest client, its almost impossible to think they didnt talk at all about their biggest client Imputation from Firm to Lawyer - Does not impute conclusively Adams v. Aerojet - Rule: Where a substantial relationship between the former firms representation of the client and the current lawsuit has been shown, the attorney whose disqualification is sought should carry the burden of proving that he had no exposure to confidential information relevant to the current action while he was a member of the former firm. (Discovery allowed only after lawyer has established burden of prima facie showing) Conflicts and the Common Interest Exception to Privilege Waiver - Conflicts and Joint Defense Agreements district court says you need consent from all the JDA members to represent a client adverse to the JDA - So in your taint list, have to think of things like JDA and their communications, include everything to cover your ass - Not an irrebuttable presumption of reimputation on the flip side of the firm based on matters that are not at issue (EX: representing a big client and then go to work for D1 or D2 in the JDA) SCREENING Can you screen a lawyer from a case in order to keep the entire firm from being disqualified? According to the MR no, the answer to that under some states rules is sometimes If a new firm doesnt ask for a conflict and screening report, give them one anyway so they know what theyre getting into before they get into it so youre covered in case they realize the mistake later on because you didnt ask for it isnt persuasive when you get caught in trouble If the lawyer says I sat in on a deposition you need to inquire further and find out whose deposition you sat in on, the person wants to be hired, theyre gonna say what they want to get hired If youre going to screen (even though youre not supposed to) you need to be prepared under penalty of perjury something that says I know I wasnt supposed to talk to X and I didnt Screening also works for support staff Morrison Knudsen hardest conflicts issue hed give us on an exam, if you get a hard one like this then do a timeline to figure out if its concurrent or subsequent conflicts Has to deal with disqualification of Hancock, Rothert firm who represented ML for 80s and early 90s, Have to figure out if representation of a subsidiary company equates to representation of the parent company Then have to figure out monitoring counsel problem monitor litigation, talk to witnesses, they make sure they are comfortable with the way litigation is going This means a constant flow of information from the company, through the insurance company to Hancock who is the monitoring counsel

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So this looks hard because no direct conflict problem, in order to look like a substantial relationship you need to collapse the subsidiary and the parent company. In default, it is a separate entity so you have neither a concurrent client and no subsequent conflict Are we worried about loyalty or confidentiality? Were worried about the information Hancock got so were worried about information flow and confidentiality. So what addresses that concern? The test that talks about confidentiality is substantial relationship test. Is the general information something that can be used against the new client? Even though none of the information in the information flow has to do with the exact problem, the playbook argument says its still useful which demands disqualification Everything is about the parent company, not the subsidiary 2 tests to figure out if sub and the parent collapse into one 1) apply corporate law, alter ego test, Brooklyn Navy Yard, that is the type of analysis you can do, but unless you have to you dont want to do that test, makes no sense 2) unity of interest test ask if the confidential information is related to the present claim, worried about a set of decisions made by the parent company, if that set of decisions involves the sub then they count, ask if the people who are making the decisions are the same people Information Transmitted to Non-Lawyers: Expert Witness Problem - Party seeking disqualification must show that the non-attorney expert whose conduct is the basis for the motion actually obtained confidential information o Once the moving party shows this, the rule depends on whether the moving party is able to discover from the expert the contents of her communication with the lawyers for the opposing party o If expert has severed all ties with moving party and refuses to communicate with them, the court presumes expert conveyed confidential information to other side and burden shifts to party whose DQ is sough to rebut presumption Logic: Presumption makes sense only if moving party has no ability to secure the evidence it needs to establish it right to DQ CLIENT CONSENT parties may consent to conflicted representation, some limits on consent Rule 1.0 (e) Informed Consent (e) Informed consent denotes an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

122

CLIENT CONSENT TO A CONFLICT OF INTEREST

(1) A lawyer may represent a client notwithstanding a conflict of interest prohibited by 121 if each affected client or former client gives informed consent to the lawyers representation. Informed consent requires that the client or former client have reasonably adequate information about the material risks of such representation to that client or former client. (2) Notwithstanding the informed consent of each affected client or former client, a lawyer may not represent a client if: a. The representation is prohibited by law;

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Downloaded From OutlineDepot.com b. One client will assert a claim against the other in the same litigation, or c. In the circumstances, it is not reasonably likely that the lawyer will be able to provide adequate representation to one or more of the clients. Generally: Clients opposing each other in litigation cannot consent to have the same lawyer represent each of them Clients otherwise may consent to have their lawyer or former lawyer to undertake a matter of the conflicts rules otherwise would bar her from taking o Consent is limited to situations in which a lawyer reasonably believes he could fulfill his obligations o Consent does not relieve a lawyer of his duties of loyalty and care Lawyer still owes these; may face civil liability for breach o Consent is only as good as the information on which it is based A lawyer who does not give the client full information about the nature of a conflict and the advantages and disadvantages of consenting to a conflict may find that courts or disciplinary officials refuse to recognize the consent

There has to be informed consent, full disclosure, only when you have that can they consent to waive the right Problem that most often arises is representation of people who want to start a company together If youre working for people who want to consent to conflicted representation, you get around getting sued with a good consent document Klemm v. Superior Court - Rule: If the conflict is merely, potential, there being no existing dispute or contest between the parties represented as to any point in litigation, then with full disclosure to and informed consent of both parties there may be dual representation - RARE WARNING o At the slightest hint of adversity you must get out Image Technical - Rule: To satisfy the requirement of FULL DISCLOSURE by a lawyer before undertaking to represent 2 conflicting interests, it is not sufficient that both parties be informed of the fact that the lawyer is undertaking to represent both of the, but he must explain to them the nature of the conflict of interest in such detail so that they can understand the reasons why it may be desirable for each to have independent counsel, with undivided loyalty to the interests of each of them - Holding: Firms duties to disclose any representation adverse to interest of one party cannot be fulfilled by mentioning in passing participating in a brief contrary to the interest of the client without stating the details of why the interests are contrary. Zador gives an example of how to do it right - Rule: Every possible consequence of a conflict does not have to be disclosed for consent ot be valid consent must be informed and written, client must be advised he has right to obtain independent counsel before giving consent. - Holding: DQ motion denied D consented to Hellers continued representation of P, waiver and consent form was detailed, D agreed not to DQ Heller notwithstanding any adversity that might develop. When adversity did develop D obtained separate counsel but reaffirmed agreement to consent form and to Hellers continued representation of P Waivers Involving Entities and Entity Constituents - MR 1.13

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Downloaded From OutlineDepot.com - Counsel may represent both the entity and one of its representatives, if conflict of interest rules permit. - Conflict waivers in such situations must be signed by a representative of the entity other than the representative who will be jointly represented MR 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advise of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyers role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to the representation of a client to the disadvantage of the client unless the client gives informed consent, except as provided or required by these rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent (2) there is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by Rule 1.6 (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyers disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyers liability to a client for malpractice unless the client is independently represented in making the agreement, or

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Downloaded From OutlineDepot.com (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advise of independent legal counsel in connection therewith (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client except that a lawyer may: (1) Acquire a lien authorized by law to secure the lawyers fee or expenses, and (2) Contract with a client for a reasonable contingent fee in a civil case (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. (k) While lawyers are associated in a firm, a prohibition in the forgoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them. Transactions with Clients GREAT WAY TO GET DISBARRED Requirements VERY important: 1. Terms must be FAIR AND REASONABLE K will be scrutinized for substantive fairness Not governed under K law, governed under fiduciary law 2. Client must be advised to seek INDEPENDENT COUNSEL Must demonstrate that you told client this and gave him enough time to do so o Good idea to put this in writing 3. Client gives WRITTEN (& signed) INFORMED CONSENT Must clearly state whether lawyer is representing client in transaction o Lawyer will typically not be representing client risk that client will not understand this and continue to believe that lawyer is continuing to look out for their interests o Must explicitly confirm with client that you are their lawyer AND looking out for their interests; OR that you are NOT their lawyer AND are NOT looking out for their interests! Beery v State Bar - Rule: Business transactions with lawyers scrutinized by courts with care, set aside at the mere insistence of the client unless the attorney can show by extrinsic evidence that his client acted with full knowledge of all facts connected with the transaction and fully understood their effect. Attorney hold burden of proof to prove transaction was fair. - Holding: Lawyer violated rule and abused trust client had in him. Breached duty to client by failing to disclose highly risky nature of investment. Lawyer suspended from practice for 3 years. Franciscan Sisters v Dean old lady leaves the money to the lawyer, goes and talks to 3rd party lawyer, did impeccable procedure and through that makes it easier to rebut presumption to show that they did it right Relations with Insurers Purdy v. Pacific - Rule: Insurer cannot compel the insured to surrender control of the litigation, and must, if necessary, secure independent counsel for the insured. Attorneys primary duty has been said to be to further the best interests of the insured. - P failed to prove proximate cause. Otherwise there would have been liability because:

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Downloaded From OutlineDepot.com Correspondence between lawyer and Ds indicates that lawyer is aware of (1) accumulating evidence of Ps responsibility for accident, and (2) potential for an excess verdict and communicated that awareness to D

NOTES: Attorney is technically hired for the defense of the insured, but information gets passed with the insurer and they are hired by the insurer Representation of the insured does not imply representation of the insurance company unless they are a named party Court says when you represent insured you represent the insurer because the insurance company is a client with respect to being able to assert the attorney/client privilege Also looks like more of client of insurer if you get regular work from them Works well when theyre on the same side of an issue, problem when theyre on opposite sides (ex: if its negligent the insured recovers and insurer has to pay, if intentional then insured doesnt recover and insurer doesnt have to pay) Question of do you want to plead into insurance or out of it, it depends on what you think the strategy situation of your defendant is. If defendant doesnt have enough resources, plead into insurance, some cause of action you think insurance would cover. The duty to defend is broader than the duty to indemnify means that the insurance obligation extends to the entire claim even if their obligation extends to only 1/27th of the entire claim, and its not reimbursable Defamation = the only part in the claim that was covered by insurance but they had to represent the client in defending against not only that claim but the 26 other claims too If you see something odd (like a defamation claim out of no where), see if you can find an insurance angle What business of the govt is it who a criminal defendant has as its representative? Govt has standing to raise defense side conflicts Reason you can do this is in the event there is a disabling conflict and you convict the defendant, on appeal the defendant is going to make a Strickland claim that will probably win and you will likely have to retry the case which would cost the govt time and money So they have standing to prevent the ruling from being tainted by conflict Rule is one of deference to the trial judge, says the district court must be allowed substantial latitude in rejecting conflict of interests, up to them to determine if a conflict of interest will arise or not Series of follow up case, Wheat has given rise to fascinating challenges by prosecutors Positional conflicts are not conflicts Nothing permits a lawyer to tell two conflicting stories for each client, you can sort of get the sense though

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Downloaded From OutlineDepot.com Active conflict cases are concurrent representation cases (ex: wheat), never said active conflicts go to concurrent conflicts, no reason to think youd have one RELATIONS WITH THIRD PARTIES ON BEHALF OF CLIENTS RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. RULE 3.4(f) FAIRNESS TO OPPOSING PARTY AND COUNSEL

A Lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless: 1. The person is a relative or an employee or other agent of the client; and 2. The lawyer reasonably believes the persons interests will not be adversely affected by refraining from giving such information 99 A REPRESENTED NONCLIENT THE GENERAL ANTI-CONTACT RULE (1) a lawyer representing a client in a matter may not communicate about the subject of the representation with a nonclient whom the lawyer knows to be represented in the matter by another lawyer or with a representative of an organizational nonclient so represented as defined in 100, unless: (a) the communication is with a public officer or agency to the extent stated in 101, (b) the lawyer is a party and represents no other client in the matter (c) the communication is authorized by law (d) the communication reasonably responds to an emergency, or (e) the other lawyer consents (2) Subsection (1) does not prohibit the lawyer from asserting the client in otherwise proper communication by the lawyers client with a represented nonclient.

100

DEFINITION OF A REPRESENTED NONCLIENT

Within the meaning of 99, a represented nonclient includes: (1) a natural person represented by a lawyer, and: (2) a current employee or other agent of an organization represented by a lawyer: a. if the employee or other agent supervises, directs, or regularly consults with the lawyer concerning the matter or if the agent has power to compromise or settle the matter b. if the acts or omissions of the employee or other agent may be imputed to the organization for purposes of civil or criminal liability in the matter, or c. if a statement of the employee or other agent, under applicable rules of evidence, would have the effect of binding the organization with respect to the proof of the matter 102 INFORMATION OF A NONCLIENT KNOWN TO BE LEGALLY PROTECTED

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Downloaded From OutlineDepot.com A lawyer communicating with a nonclient in a situation permitted under 99 may not seek to obtain information that the lawyer reasonably should know the nonclient may not reveal without violating a duty of confidentiality to another imposed by law. Represented Person May not communicate without lawyers consent Partys own consent will not do Exception: good faith under-cover investigation KNOWLEDGE requirement Unrepresented Persons May communicate If your clients interests differ from theirs or are reasonably likely to do so, you may not give them legal advice Exception: tell them to get their own lawyer

Snider v. Superior Court - CA RULE: Employees admission would be imputed only if the employee had authority to speak on the employers behalf (managing-speaking agent test) managing agent is an employee that exercises substantial discretionary authority over significant aspects of a corporations business, including organizational policy. More than a supervisory employee. - **Actual knowledge required before attorney held to violate this rule. NOTES: Not a right that vests in clients, a right that vests in lawyers Your client could consent all day long to talking to counsel for the other side and that amounts to nothing, the right is in the lawyer to decide if you can or not What about entities, of the real human beings that are members of the entity are considered represented for purposes of legal contact? - Who do you talk to? Best choice is someone who just got fired who has a grudge, they have a good case of hate and will work toward your profit. And unless they have their own lawyer, they sure as hell arent represented by the companys counsel Who is represented by counsel? California rule says: officer, director, managing agent, association member or employee of association if the subject of the suit is the act of that person Everyone else? You as the plaintiffs atty are free to call and fish information from them - The rule doesnt say you have to ask if they are represented, Snyder the case does, but knowledge does not require an admission by the lawyer that they knew, it can be inferred by the circumstance. The reason they say you have to ask because if you dont ask it can be used against you to say that you knew that they were represented and proceeded to question them anyway You cannot restrict non clients from not speaking to opposing counsel You cant trick protected employees into doing things or saying things, but you can probably employ persons to play the role of customers seeking services on the same basis as the general public. In between written script with prepping a client to get on the stand and discussions about what might be discussed, there is a range of possibilities, depends on client sophistication There has never been a criminal case to suppress evidence as a penalty for a 4.2 violation in a federal case MR 8.4 NO CONTACT RULE Prohibits lawyers from using third parties to do things the rules prohibit lawyers from doing themselves

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Downloaded From OutlineDepot.com MR 8.5 DICIPLINARY AUTHORITY, CHOICE OF LAW

(a)

Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyers conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: 1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise, and 2) for any other conduct, the rules of the jurisdiction in which the lawyers conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyers conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyers conduct will occur. Matter of Howes - Rule: Once attorney has been appointed to represent in litigation, that attorneys responsibility is to act on behalf of the client and to protect the client from compromising his case by waiving viable defense or from disclosing privileged information attorney cannot fulfill this responsibility when opposing counsel freely comes into contact with the client without attorneys knowledge You can be disciplined by any jurisdiction that licenses you Communication is broadly construed and it doesnt matter who initiates. Its not a prohibition on interrogation, its a prohibition on communication MR 4.3 DEALING WITH UNREPRESENTED PERSON

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interest of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 103 DEALINGS WITH AN UNREPRESENTED NONCLIENT

In the course of representing a client and dealing with a nonclient who is not represented by a lawyer: (1) the lawyer may not mislead the nonclient, to the prejudice of the nonclient, concerning the identity and interests of the person the lawyer represents, and (2) when the lawyer knows or reasonably should know that the unrepresented nonclient misunderstands the lawyers role in the matter, the lawyer must take reasonable efforts to correct the misunderstanding when failure to do so would materially prejudice the nonclient.

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Downloaded From OutlineDepot.com Hopkins v. Troutner - Rule: Lawyer should not give advice to unrepresented person other than advice to obtain legal counsel, especially when unrepresented person is not experienced in dealing with legal matters and might assume lawyer is disinterested - Holding: Conversation should have led attorney to know that his advice would be relied upon by opposing party. Lawyer did not only state factual matter to party, he gave him legal advice when he gave an estimate. NOTES: You can listen and you can get facts but you must make sure they know you are not their lawyer, you must not give them advice but you must tell them to get a lawyer Only advice you may give is get your own lawyer, go away When youre at the premises where a person is being held, even if youre doing no business, you are acting in a lawyer duty so consider your actions those of a lawyer and publishable under the rules Distinguish opinion vs. position - Opinion: this case is worth X. VIOLATION - Position: my client will offer X. NOT VIOLATION MR 4.4 RESPECT FOR RIGHTS OF THIRD PERSON (a) In representing a client, a lawyer shall not use means that have no substantial purpose othern than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person (b) A lawyer who receives a document relating to the representation of the lawyers client and relating to the representation of the lawyers client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender Receiving Evidence Pillsbury v. Schectman - Rule: Regardless of whether some documents may be ultimately discoverable, parties have right to keep their own documents until met with proper discovery requests or ordered to disclose them by Court o Factors requiring return of documents: Other side benefits from wrongdoing Sensitive, confidential info Improper gathering methods o Exception: Improper evidence OK if justification exists (fear for life) - Holding: Even though documents were not subject to attorney-client privilege or work product, they must be returned to their original owner until discovery Embarrassing or Burdening Others Idaho State Bar v. Warrick - Rule: A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person Rule requires demonstration that prosecutor intended to appeal or engender bias RELATIONS WITH YOUR FIRM 9 LAW PRACTICE ORGANIZATIONS IN GENERAL

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Downloaded From OutlineDepot.com (1) A lawyer may practice as a solo practitioner, as an employee of another lawyer or law firm, or as a member of a law firm constituted as a partnership, professional corporation, or similar entity. (2) A lawyer employed by an entity described in Subsection (1) is subject to applicable law governing the creation, operation, management and dissolution of the entity. (3) Absent an agreement with the firm providing a more permissive rule, a lawyer leaving a law firm may solicit firm clients: a. Prior to leaving the firm i. Only with respect to firm clients on whose matters the lawyer is actively and substantially working, and ii. Only after the lawyer has adequately and timely informed the firm of the lawyers intent to contact firm clients for that purpose, and b. After ceasing employment in the firm, to the extent as any other nonfirm lawyer.

11

A LAWYERS DUTY OF SUPERVISION (1) A lawyer who is a partner in a law-firm partnership or a principal in a law firm organized as a corporation or similar entity is subject to professional discipline for failing to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to applicable lawyer-code requirements. (2) A lawyer who has direct supervisory authority over another lawyer is subject to professional discipline for failing to make reasonable efforts to ensure that the other lawyer conforms to applicable lawyer-code requirements. (3) A lawyer is subject to professional discipline for another lawyers violation of the rules of professional conduct if: a. The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved, or b. The lawyer is a partner or principal in the law firm, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures (4) With respect to a nonlawyer employee of a law firm, the lawyer is subject to professional discipline if either: a. The lawyer fails to make reasonable efforts to ensure: i. That the firm in which the lawyer practices has in effect measures giving reasonable assurance that the nonlawyers conduct is compatible with the professional obligations of the lawyer, and ii. That conduct of a nonlawyer over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer, or b. The nonlawyers conduct would be a violation of the applicable lawyer code if engaged in by a lawyer, and i. The lawyer orders or, with knowledge of the specific conduct ratifies the conduct, or ii. The lawyer is a partner or principal in the law firm, or has direct supervisory authority over the nonlawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures.

MR 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to

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Downloaded From OutlineDepot.com ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct (c) A lawyer shall be responsible for another lawyers violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with 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 other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

MR 5.2

RESPONSIBILITIES OF A SUBORDINATE LAWYER

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyers reasonable resolution of an arguable question of professional duty. Fiduciary Responsibility to Firm In re Curran - Rule: Lawyers in partnership have fiduciary duties of loyalty, disclosure, and accounting to each other. Intention to defraud not required - Holding: Lawyer suspended for 2 years: o Mitigating factors: Did not intend to mislead Resolved money Had not been previously disciplined Not Mitigating: Mobile Lawyers Basic Restrictions Horowitz v. Moskowitz - Rule: Departing partner may inform client with whom they have a prior professional relationship about impending withdrawal, new practice, and to remind client of its freedom to retain counsel of choice. Departing partner may not lure clients to new association by lying about client to rights with respect to choice of counsel, lying to partners about plans to leave, and abandoning firm on short notice. Soliciting Former Clients and Colleagues - 9 Reeves v. Hanlon Rule: To recover for interference with at will employment K, P must plead and prove that D induced an at will employee to leave, requires more than merely extending job offer to employee that induces employee Other partners doing same thing Though he had earned money Tried to make excuses

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to terminate at will employment. May offer better contract terms but may not perform independently wrongful act. o May not use trade secret client data in improper manner to directly solicit clients for Ds gain/Ps detriment if not in furtherance of right to engage in fair competition. Holding: Punitive damages owed for disrupting business and violating trade secret problem Trade Secrets Problem - PAGE 74 of other outline MR 5.6 RESTRICTIONS ON RIGHT TO PRACTICE

A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement, or (b) an agreement in which a restriction on the lawyers right to practice is part of the settlement of a clients controversy. Agreements on Restricting Practice - MR 5.6 - 13 Howard v. Babcock - Rule: Agreement among partners imposing reasonable cost on departing partners who compete with law firm in a limited geographical area is not inconsistent with MR and is not void on its face as against public policy - Holding: Departing partners may compete but then will not receive excess retirement pay interest of public is served by allowing counsel to continue to practice in field while still protecting firms by placing a reasonable price on competition MR 8.3 REPORTING PROFESSIONAL MISCONDUCT

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. You owe fiduciary duties to your firm, as an agent of your firm, as well as to your client You must discharge both sets of duties simultaneously For purposes of discipline (but not malpractice liability) you may rely on reasonable judgment calls of supervising attorneys If you need supervision or assistance of a more experienced attorney to discharge your duty of care to a client, the duty of care requires you to get it

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Downloaded From OutlineDepot.com Future representation agreements a way to buy off a firm from being in future representation against a same company Superior-Subordinate Relations PAGE 75 OTHER OUTLINE Kramer v. Nowak - Rule: Lawyer liable for employees mistake if he ratified it, or was negligent in failing to ensure associate was doing work in compliance with rules - Holding: Employer must present evidence whether (1) Partner ratified associates negligence, (2) whether miscalculation of prejudgment interest could have been discovered through reasonable inquiry Are you responsible for malpractice to your employer? Yes. Why is Kramer doing this? To go after Nowak rather than claiming it on his own insurance Pollack the firm owes fiduciary obligations to the client, the lawyer owes fiduciary obligations to the client, its highly unlikely recognizing obligations from the lawyer to the firm will create a conflict since both entities owe these obligations to the client, so no harm in saying owe a duty to the firm and owe a duty to the client because those will never be in conflict That is legally correct, but the firms first priority is to get paid and might say until I get paid no more work and then youre not doing good for your client What do you do there? The rules dont tell you. Give notice to your client to say you have X days to get the money to us or we will discontinue representation, breach your duties, work pro bono on the weekend, you have to make a pitch to the boss and say this is against your own self interest by the rules if youre going to prejudice the client, redirect your bosss energy and turn it all into their idea The model rules are relatively clear that the rules apply to all of us, tort law applies to all of us, only thing we get as junior associates is respondeat superior and reasonable determinations by senior lawyers 1.1 says we shall be competent big partner takes a junior associate along to a client and says were the best franchising law firm, the partner has all these hours of work, junior has no experience, passes off the client to the junior who says they dont know what theyre doing and the senior says research it, she assumed that someone was watching and looking at the work you still have to satisfy your duty of care, incompetent to just assume someone is looking over your shoulder without actually knowing for sure if someone is duty to seek supervision exists conventional distinction between partners and associates, they had a policy of basically kicking partners into semi inactive status when they got to be a certain age to make room for new partners, equal employment opportunity commission said that looked like age discrimination, they say no, theyre partners, eeoc only applies to employees look at reality of practice, 1000 lawyer firm, say theres all these partners but theres a committee that runs things, you get a note from the committee that tells you what theyve decided to do with you

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Howes got a call from a criminal defendant but said he didnt do anything wrong b/c all he did was listen and said that wasnt communicating. Then said Im a subordinate lawyer under 5.2(b) that says a subordinate does not violate the rules if they act in accordance with a supervisory lawyers reasonable resolution of an arguable question of professional duty - 5.2(b) is a defense to discipline on 2 conditions 1) question must be arguable 2) instruction must be reasonable Not a defense to tort law or contract law He loses b/c court doesnt think the question is arguable if its communication or not

Activities outside the Firm What is in the Scope and Course of Employment Shapiro - Rule: To be liable for employees act, tortious conduct must be generally foreseeable consequence of employers activity foreseeability means that in the context of the particular enterprise, an employees conduct is not so unnatural or startling that it would seem unfair to include the loss resulting from it among other costs of the employers business. - Where employee conducting own business with that of employer, inquiry required as to which business he was engaged in at time of inquiry He worked for a civil firm and did criminal work on the side, is the firm liable for something he did for a criminal case Depends on how you hold yourself out as and the degree to which you do that to When the retainer agreement is on the firm letterhead, thats when the association seems to be crystal clear ECONOMICS OF PRACTICE MR 1.5 FEES (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following 1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly 2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer 3) the fee customarily charged in the locality for similar legal services 4) the amount involved and results obtained 5) the time limitations imposed by the client or by the circumstances 6) the nature and length of the professional relationship with the client 7) the experience, reputation, and ability of the lawyer or lawyers performing services 8) whether the fee is fixed contingent (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the

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Downloaded From OutlineDepot.com same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed b the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an agreement for, charge or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof, or (2) a contingent fee for representing a defendant in a criminal case (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing, and (3) the total fee is reasonable. Types of Fees Three types of retainers (1) Classic/ True Retainer a. Payment of sum to secure availability over period of time b. Entitlement to fee exists whether or not the services are ever rendered c. Provides benefit to client where it guarantees attorney will make themselves available to client and forego other employment opportunities as result of time commitments/ conflicts d. Lawyer may also accept fee for placing clients work at top of attorneys priority list e. Attorney may not treat fee as earned simply by labeling it earned on receipt or referring to it as engagement retainer, must describe in writing the nature of the benefit being provided to a specific client f. If money is yours (true retainer) client has no entitlement to it and you do not have to place it into client trust account i. Can put it in your account or firms account (2) Security Retainer a. Retainer held by attorney to secure payment of fees for future services that the attorney is expected to render i. Put this in your account to ensure client has enough $ to pay you at any given time b. Money given as retainer is not present payment for future services i. Remains property of client until attorney applies it to charges for services actually rendered c. Any unearned funds returned to client d. Unless fee agreement expressly states that fee is an engagement retainer and explains how fee is earned upon receipt, ct. will presume any advance fee is a deposit from which attorney will be paid for specific legal services i. Default is security retainer, not true retainer

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Downloaded From OutlineDepot.com K term stipulating that payment is earned on receipt is not effective if the payment is for the lawyers work in a particular matter rather than simply to secure lawyers availability i. Cannot K around default retainer rules ii. Only true retainers belong to lawyer on receipt f. Attorney may not label advance fees non-refundable because it misleads client- will not realize he can fire attorney and still get $ back (3) Advance Payment Retainer a. Very common for criminal defense attorneys want to be paid up front because odds are that client is going to prison and then he would not have incentive to pay you b. Agreement where client pays in advance for some or all of services that attorney is expected to perform on clients behalf c. Differs from security retainer in that ownership of funds is intended to pass to attorney at time of payment d. May NOT suggest advance fees are non-refundable! i. Every fee is refundable as long as it is not entirely earned e. Must keep down to $ record of what went in and came out- must always balance account Courts look to language of retainer to ascertain what type it is look beyond the name of the retainer Notes re Model Rules: o 1. When lawyer receives money (ie: settlement award) lawyer must notify client and any third person with interest (creditor of client) and deliver to that party any money they are entitled to receive Trust Account Basics: o All funds you receive/ hold for client must be deposited into bank acct. that is clearly labeled as client trust bank acct. o Must promptly notify client when you receive goods on their behalf o Account must be in CA unless client consents in writing o Must identify property received on behalf of writing and immediately put them into safe deposit box/ place of safekeeping o NO COMMINGLING: depositing money that belongs to firm into client trust acct. not allowed! When you earn fees, must take them out of client trust acct as you earn them Ethically required to withdraw money as soon as you reasonably can o Must deliver goods promptly to client if they ask for it o Must tell client how much money/property you are holding for them or what you have done with it o Must account for all money to state Bar if they inquire o For at least 5 years, must keep complete records of all client $ entrusted to you Purpose Belongs to Deposit in True Retainer Secure availability (no work required) Lawyer, on receipt Firm or lawyers account Security Retainer Provide lawyer assurance that money will be there when earned Client, lawyer takes only when earned Trust account only Advance Payment Pay lawyer up front for work to be performed later (may be flat fee or partial fee) Jurisdictions differ- Lawyer in CA Jurisdictions differ- advisable only in trust in all jurisdictions e.

FEE DIVISION Arthur Chambers v. Philip Kay -RULE: Lawyer may not divide a fee for legal services unless written disclosure and consent from client is obtained. Client has right to know how attorneys fees will be determined and basis for sharing fees by attorneys.

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RULE 1.15

SAFEKEEPING PROPERTY

(a) a lawyer shall hold property of clients or third persons that is in a lawyers possession in connection with a representation separate from the lawyers own property. Funds shall be kept in a separate account maintained in the state where the lawyers office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation (b) A lawyer may deposit the lawyers own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose. (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

RULE 1.16(d)

DECLINING OR TERMINATING REPRESENTATION

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

34

REASONABLE AND LAWFUL FEES

A lawyer may not charge a fee larger than is reasonable in the circumstances or that is prohibited by law. 35 CONTINGENT-FEE ARRANGEMENTS (1) A lawyer may contract with a client for a fee the size or payment of which is contingent on the outcome of a matter, unless the contract violates 34 or another provision of this Restatement or the size of payment of the fee is: a. Contingent on success in prosecuting or defending a criminal proceeding, or b. Contingent on a specified result in a divorce proceeding or a proceedings concerning custody of a child (2) Unless the contract construed in the circumstances indicates otherwise, when a lawyer has contracted for a contingent fee, the lawyer is entitled to receive the specified fee only when and to the extent the client receives payment.

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Downloaded From OutlineDepot.com 36 FORBIDDEN CLIENT-LAWYER FINANCIAL ARRANGEMENTS (1) A lawyer may not acquire a proprietary interest in the cause of action or subject matter of litigation that the lawyer is conducting for a client, except that the lawyer may: a. Acquire a lien as provided by 43 to secure the lawyers fee or expenses, and b. Contract with the client for a contingent fee in a civil case except when prohibited as stated in 35 (2) A lawyer may not make or guarantee a loan to a client in connection with pending or contemplated litigation that the lawyer is conducting for the client, except that the lawyer may make or guarantee a loan covering court costs and expenses of litigation, the repayment of which to the lawyer may be contingent on the outcome of the matter (3) A lawyer may not, before the lawyer ceases to represent a client, make an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

37

PARTIAL OR COMPLETE FORFEITURE OF A LAWYERS COMPENSATION

A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyers compensation for the matter. Considerations relevant to the question of forfeiture include the gravity and timing of the violation, its willfulness, its effect on the value of the lawyers work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies. 38 CLIENT-LAWYER FEE CONTRACTS (1) Before or within a reasonable time after beginning to represent a client in a matter, a lawyer must communicate to the client, in writing when applicable rules so provide, the basis or rate of the fee, unless the communication is unnecessary for the client because the lawyer has previously represented that client on the same basis or at the same rate. (2) The validity and construction of a contract between a client and a lawyer concerning the lawyers fees are governed by 18. (3) Unless a contract construed in the circumstances indicates otherwise: a. a lawyer may not charge separately for the lawyers general office and overhead expenses b. payments that the law requires an opposing party or that partys lawyer to pay as attorney-fee awards or sanctions are credited to the client, not the clients lawyer, absent a contrary statute or court order, and c. when a lawyer requests and receives a fee payment that is not for services already rendered, that payment is to be credited against whatever fee the lawyer is entitled to collect.

18

CLIENT-LAWYER CONTRACTS (1) A contract between a lawyer and client concerning the client-lawyer relationship, including a contract modifying an existing contract, may be enforced by either party if the contract meets other applicable requirements, except that a. If the contract or modification is made beyond a reasonable time after the lawyer has begun to represent the client in the matter (see 38(1), the client may avoid it unless the lawyer shows that the contract and the circumstances of its formation were fair and reasonable to the client, and b. If the contract is made after the lawyer has finished providing services, the client may avoid it if the client was not informed of facts needed to evaluate the

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Downloaded From OutlineDepot.com appropriateness of the lawyers compensation or other benefits conferred on the lawyer by the contract (2) A tribunal should construe a contract between client and lawyer as a reasonable person in the circumstances of the client would have construed it.

39

A LAWYERS FEE IN THE ABSENCE OF A CONTRACT

If a client and lawyer have not made a valid contract providing for another measure of compensation, a client owes a lawyer who has performed legal services for the client the fair value of the lawyers services. 40 FEES ON TERMINATION

If a client-lawyer relationship ends before the lawyer has completed the services due for a matter and the lawyers fee has not been forfeited under 37: (1) a lawyer who has been discharged or withdraws may recover the lesser of the fair value of the lawyers services as determined under 39 and the ratable proportion of the compensation provided by any otherwise enforceable contract between lawyer and client for the services performed, except that (2) the tribunal may allow such a lawyer to recover the ratable proportion of the compensation provided by such a contract if: a. the discharge or withdrawal is not attributable to misconduct of the lawyer b. the lawyer has performed several services, and c. allowing contractual compensation would not burden the clients choice of counsel or the clients ability to replace counsel

41

FEE COLLECTION METHODS

In seeking compensation claimed from a client or former client, a lawyer may not employ collection methods forbidden by law, use confidential information when not permitted under 65, or harass the client. 42 REMEDIES AND THE BURDEN OF PERSUASION (1) A fee dispute between a lawyer and a client may be adjudicated in any appropriate proceeding, including a suit by the lawyer to recover an unpaid fee, a suit for a refund by a client, an arbitration to which both parties consent unless applicable law renders the lawyers consent unnecessary, or in the courts discretion a proceeding ancillary to a pending suit in which the lawyer performed the services in question. (2) In any such proceeding the lawyer has the burden of persuading the trier of fact, when relevant, of the existence and terms of any fee contract, the making of any disclosures to the client required to render a contract enforceable, and the extent and value of the lawyers services.

43

LAWYER LIENS (1) Except as provided in Subsection (2) or by statute or rule, a lawyer does not acquire a lien entitling the lawyer to retain the clients property in the lawyers possession in order to secure payment of the lawyers fees and disbursements. A lawyer may decline to deliver to a client or a former client an original or copy of any document prepared by the lawyer or at the lawyers expense if the client or former client has not paid all fees and disbursements

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Downloaded From OutlineDepot.com due for the lawyers work in preparing the document and nondelivery would not unreasonably harm the client or former client. (2) Unless otherwise provided by statute or rule, client and lawyer may agree that the lawyer shall have a security interest in property of the client recovered for the client through the lawyers efforts, as follows: a. The lawyer may contract in writing with the client for a lien on the proceeds of the representation to secure payment for the lawyers services and disbursements in that matter b. The lien becomes binding on a third party when the party has notice of the lien c. The lien applies only to the amount of fees and disbursements claimed reasonably and in good faith for the lawyers services performed in the representation and d. The lawyer may not unreasonably impede the speedy and inexpensive resolution of any dispute concerning those fees and disbursements or the lien. (3) A tribunal where an action is pending may in its discretion adjudicate any fee or other dispute concerning a lien asserted by a lawyer on property of a party to the action, provide for custody of the property, release all or part of the property to the client or lawyer, and grant such other relief as justice may require. (4) With respect to property neither in the lawyers possession nor recovered by the client through the lawyers efforts, the lawyer may obtain a security interest on property of a client only as provided by other law and consistent with 18 and 126. Acquisition of such a security interest is a business or financial transaction with a client within the meaning of 126. Substantive Economics Regulation fees must be reasonable, must not charge unreasonable fee or charge unreasonable expenses 8 factors on page 2 1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly 2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer 3) the fee customarily charged in the locality for similar legal services 4) the amount involved and results obtained 5) the time limitations imposed by the client or by the circumstances 6) the nature and length of the professional relationship with the client 7) the experience, reputation, and ability of the lawyer or lawyers performing services 8) whether the fee is fixed contingent cannot charge to learn how to do something new on the case (ex: civil litigator, charged the client $50,000 to try first offense DUI since had never done one of those cases before) no question he did all the work, he didnt pad the bill, but outside of the reasonable range of what lawyers that do this work charge Lawyers get fees only one way they confer benefits on clients. If you want to say I took title to the money, you must be able to demonstrate the benefit the client received for the money, there is no such thing as money without benefit It says that you have to recite in writing the reasons why mere availability without obligation to do work is a benefit to the client b/c that is what youre proposing In the Matter of Laurence Fordham - 50,000 for a DUI

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Downloaded From OutlineDepot.com Rule: Client should not be expected to pay for education of lawyer when he spends excessive amounts of time on tasks which, with reasonable experience, become matters of routine

Warhaftig Rule: You cant pull funds out of that clients retainer early before you earn the fees, even if you dont hurt anyone MR 5.5 UNAUTHORIZED PRACTICE OF LAW, MULTIJURISDICTIONAL PRACTICE OF LAW (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not (1) except as authorized by these Rules or other law, establish an office or other systematic or continuous presence in this jurisdiction for the practice of law, or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction (c) A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction who actively participates in the matter (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be authorized (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyers practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission, or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyers practice in a jurisdiction in which the lawyer is admitted to practice. (d) A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyers employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission, or (2) are services that the lawyer is authorized by federal or other law to provide in this jurisdiction Computer programs that do taxes and wills and other various legal things for one flat rate to buy the program Is computer software like that practicing law? Yes. Thats unauthorized practice of law. What cant be substituted by computers and outsourcing? Trial advocacy. Do more than spit out rules. RELATIONS WITH OTHER LAWYERS Hierarchy in rules exist: MR 3.3 MR 1.6 MR 8.3

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MR 8.3

REPORTING PROFESSIONAL MISCONDUCT

(a) a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority (b) a lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority. (c) This rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

MR 8.4

MISCONDUCT

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 (b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation (d) engage in conduct that is prejudicial to the administration of justice (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law, or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. In re James H. Himmel Rule: Lawyer must report other lawyers violation of MR, discipline may be appropriate even if no dishonest motive for misconduct exists and client approval of attorneys failure to report does not immunize lawyer from disciplinary action. Claims Between Attorneys Alice Whalen v. DeGraff, Foy, Conway, Holt-Harris & Mealy Rule: Lawyer who hires second lawyer has duty to supervise the second lawyers actions. Bright line rule. ETHICS IN ADVOCACY MR 3.3 CANDOR TOWARD TRIBUNAL

(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyers client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

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Downloaded From OutlineDepot.com (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. 120 FALSE TESTIMONY OR EVIDENCE (1) A lawyer may not: (a) knowingly counsel or assist a witness to testify falsely or otherwise offer false evidence (b) knowingly make a false statement of fact to the tribunal (c) offer testimony or other evidence as to an issue of fact known by the lawyer to be false (2) if a lawyer has offered testimony or other evidence as to a material issue of fact and comes to know of its falsity, the lawyer must take reasonable remedial measures and may disclose confidential client information when necessary to take such a measure. (3) A lawyer may refuse to offer testimony or other evidence that the lawyer reasonably believes to be false, even if the lawyer does not know it to be false. Disciplinary Risks Warrick: Rule: If lawyer has offered material evidence and comes to know of its falsity, lawyer shall take reasonable remedial measures, continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. People v. Johnson Rule: D has a constitutional right to be heard; lawyer has duty not to introduce perjured testimony. Attorney should use narrative approach to deal with these 2 conflicting rights. Holding: Narrative approach represent best accommodation of competing interest Candor Towards Trubunal People of CO v. William Casey Rule: Lawyer must disclose to court if client is making false representation. Suspension appropriate when lawyer knows that false statements submitted to court or material information is being properly withheld and takes no remedial action. Holding: Respondent had duty to court to disclose that his client was impersonating SJ in criminal proceedings. MR 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not: (a) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. (c) Knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists

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Downloaded From OutlineDepot.com (d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party (e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, or (f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client, and (2) the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information Handling Evidence People v. Michael Meredith Rule: Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of evidence in question. If defense counsel leaves the evidence where he discovers it, his observations derived from privileged communications are protected. Holding: Observation by defense counsel of investigator that is the product of privileged communication, may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation. Here, the defense investigator removed the wallet and thereby frustrated any possibility that police might later discover it in trash can. Conduct of defense precluded prosecution from ascertaining crucial fact of location of wallet. Discovery Evidence Redwood v. Dobson & Welch Rule: Mutual enmity does not excuse break down of decorum in any phase of litigation Holding: Sanctions for all lawyers involved censured and admonished. Further violations will result in sterner sanctions Washington State Physicians Ins. v. Fisons Corp. Rule: Discovery rules to not allow party to produce only what it agreed to produce or was ordered to produce, must answer all interrogatories and all requests for production, unless a specific and clear objection is made. If a party does not want to respond, it must move for a protective order. All relevant documents must be produced party does not have option of determining what it wants to produce or answer. Holding: Lawyer sanctioned for failure to produce document MR 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged

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Downloaded From OutlineDepot.com mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution, and (3) there is no other feasible alternative to obtain the information (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutors action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care or prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. 119 PHYSICAL EVIDENCE OF A CLIENT CRIME

With respect to physical evidence of a client crime, a lawyer: (1) may, when reasonably necessary for purposes of the representation, take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence, but (2) following possession under Subsection (1), the lawyer must notify prosecuting authorities of the lawyers possession of the evidence or turn the evidence over to them.

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