You are on page 1of 18

ETHICS OUTLINE

EthicsProf. GorsuchFall 2011


Gorsuchs Tenets 1. Karma is real. 2. Spot the landmines then you can argue either way. 3. There is such a thing as a slippery slope. 4. The cover-up is worse than the crime. 5. When in doubt, get it in writing! 6. Would you want your grandmother to know about this?

ISSUE SPOTTER GUIDELINES: A. For every ethics violation, there is also an 8.4(a) violation = to violate or attempt to violate the Rules of Professional Conduct. B. Often also 8.4(c) = dishonesty, fraud, deceit, or misrepresentation. C. In addition to ethics violation, could also have these violations: 1. Civil responsibilities fiduciary duty. 2. Criminal violations. 3. Inherent powers of the court to regulate unethical aspects of proceedings. D. Duty to Protect Confidences: RULE 1.6? E. Any conflicts for current, prospective or future clients? F. Duties to the Court, Adversaries, or 3rd parties? G. Any fee issues? H. Central Themes: 1. Conflicts of Interest 2. Truthfulness 3. Lawyers Duties to their Clients vs. Duties to the Justice System. 4. Lawyers personal/Professional interests vs. fiduciary Obligations. 5. Issues involved in self-regulation. 6. Lawyers as employees: Institutional Pressures on Ethical Judgments.

I. Regulation of Lawyers
A. Institutions that Regulate Lawyers 1. State Level: Courts, Bar Associations, Legislatures. (a) State Courts (b) State and Local Bar Associations (c) State legislatures (d) Lawyer Disciplinary Agencies 2. Federal Level: American Bar Association, federal courts, administrative agencies, and still responsible to state ethics rules where they practice. 3. Individuals: Prosecutors, Malpractice insurers, Law firms and other employers internal rules and standards, and Clients esp. if govt or large corporations. B. Multiple State Jurisdictions 1. Sanctions: (a) Something done outside of state in which lawyer is licensed to practice = can sometimes be disciplined by authorities in the state where the misconduct took place, even if not licensed there. (b) Lawyer whos admitted in more than one state must report ot other states where she is admitted if discipline is imposed in one state. (c) Lawyer who is sanctioned in one jurisdiction can receive same sanction in any other jurisdiction where lawyer is admitted. 2. Practice: RULE 5.5: (a) If temporary: Must be associated w/ another authorized lawyer and reasonably relate to lawyers practice in authorized jurisdiction. (b) If permanent: Can be employed but cant go to court and must be authorized by federal or other law. C. Admission to the Bar: Dont lie in admission to the bar (8.1). 1. Requirements: (a) Graduation from accredited undergrad and law school. (b) Submission of application (must be consistent with law school application). (c) Good moral character (residence and employment history, criminal records, traffic records, credit history, any litigation youve been a party in). Usually only look at events in last several years. (d) Passing score on admissions exam. 2. Once admitted must: continue legal education, pay annual dues, membership in state bar association, and submit/maintain records. 3. Sometimes if admitted to bar in one state and have practiced for a number of years, can gain admission in some other states w/o taking bar. 4. Federal courts have separate bar usually admit any licensed lawyers hwo apply. 5. EXAMPLES: (a) In RE Mustafa = law student borrowed money from student organization during law school. Law school committee found always intended to repay, but court said that high chance of repeat offense did repeat once admitted to bar in CA. (b) Erica = Doctored resume, didnt really speak English but no justification. (c) Gowers = Aggressive examination of relatively harmless mental health history. D. Self-Regulation: 1. Must report misconduct of other lawyers (8.3). knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer in other respects. UNLESS falls under Rule 1.6. 2. Lawyer who fails to report another lawyers misconduct may be subject to discipline but few public records on such discipline. (a) PROS of System: Other lawyers are in best position to see misconduct, 2

increases ethical behavior if you know people are watching. (b) CONS of System: Tactical uses, decrease in collegiality/mentorship, and discourages asking questions about ethical issues. E. Lawyers Responsibility for Misconduct of other Lawyers: 1. Rule 5.1: Supervising Lawyers = Must be liable for the unethical acts of lawyers theyre supervising if they direct the act or know of the proposed act and dont prevent it. (a) Its an independent violation if youre a partner/highest managerial responsibility, b/c didnt put systems and processes in place to prevent violations. (b) Also independent violation if supervising lawyer, specific project supervisor. (c) Any lawyer who orders, affirms, or knows of the conduct gets underlying violation, but may also qualify for (a) or (b). 2. Rule 5.2: Subordinate Lawyers = May be held accountable for unethical actions that they were ordered to undertake if the supervisors instruction wasnt based on a reasonable resolution of an arguable question of professional duty. (a) To figure out what a reasonable resolution is, associate should do research or seek advice. (b) Cant just say you were ordered to do it. (c) If theres a gray area...reasonableness decided by bar. 3. Rule 5.3: Non-Lawyer Employees = Lawyers who supervise nonlawyer employees must ensure that employees comply with professional rules of conduct. 4. Rule 8.4: Violation of rule through the acts of another. 5. RULE 8.3: If you know someone else has violated an ethical rule (substantial question as to that lawyers honesty, trustworthiness, or fitness) must inform authorities. 6. EXAMPLES: (a) Little = New lawyer gets hug caseload dumped on her w/o advise from supervising lawyer. Grossly incompetent so report 5.1 violation on boss. (b) Consequences of reporting = some states allow lawyers fired for insisting on compliance with ethical rules to sue for wrongful discharge. i. Margolick = NY Crt shields laywers that report dishonesty. Firm can be sued for breach of contract. ii. Jacobson = opposite result of Margolick. iii. Kelley = associates not yet admitted to the bar arent officially attorneys, but it would be ridiculous to permit these associates to ignore unethical behavior that admitted associates are required to report.

II. Duty to Protect Client Confidences


F. Basic Principle of Confidentiality = protection of information relating to the
representation of a client. 1. Rule 1.6(a) = A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b). 2. COMMENT 4: Can use hypos if listener cant trace back to particular client. 3. Information thats confidential: (a) All information relating to the representation EXCEPT what is generally known. (b) Personal info that the client wouldnt want disclosed. (c) Info learned from the client, interviews, documents, photographs, observation, or other sources. (d) Notes or memos that the lawyer creates relating to the matter. 3

(e) Info acquired before the representation begin and after the representation terminates. 4. Purpose = To facilitate open communication between lawyers and clients. 5. EXAMPLE: Dinner with Anna: After 1st day at work, how much can you tell your friend in public restaurant? dont name names, use hypos, leave out specific facts. 6. Restatement is less strict than Model Rules: (a) Just cant reveal anything if theres a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed lawyer not to disclose. (b) Adverse effects = frustration of clients objectives, material misfortune, disadvantage, financial or physical harm to client, or personal embarrassment. 7. RULE 1.9(c)(1): Duty of Confidentiality applies to former client. 8. RULE 1.8(b): Confidentiality for prospective clients is same as for actual client. G. Exceptions to the Duty to Protect Confidences: 1. Rule 1.6(b): A lawyer MAY reveal info relating to the representation to the extent lawyer reasonably believes as necessary to: (a) Prevent reasonably certain death or substantial bodily harm. [Doesnt have to be criminal]. (b) FUTURE CRIME/FRAUD: Prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests of another. i. Only applies if lawyers services are allowing client to do something illegal. ii. Just knowing that client did something illegal doesnt violate. (c) PAST CRIME/FRAUD: Mitigate, or rectify substantial harm to the financial interests of another. [But if criminal act is past and client has hired lawyer for representation relating to that conduct, lawyer may not reveal information]. (d) To secure legal advice about the lawyers compliance with these rules. (e) To establish a claim or defense on behalf of the lawyer in controversy between lawyer and client such as criminal charge or civil claim against lawyer. (f) To comply with law or court order. 2. CO DIFFERENCE: Can tell anything about clients intention to commit ANY crime (not just death, injury, or serious financial loss) if necessary to prevent a crime. 3. EXAMPLES: (a) Garrow and the bodies = D tells lawyers about evidence of other murders and location of bodies, reveal to police? Conflict between confidence and health law requiring to say where bodies are located. (b) Spaulding = Ds lawyers dont report that their doctor revealed aneurysm (P wouldve gotten more money). Court says that P should go after his own lawyers for not requesting report or his doctors for not discovering aneurysm. 4. Client Fraud: (a) RULE 1.2(d) = A lawyer shall not counsel a client to engage, or assist a client, in conduct that a lawyer knows is criminal or fraudulent. i. Lawyer must withdraw (RULE 1.16). ii. Sometimes might also have to inform someone. iii. The Lawyer must know that act would be fraudulent. (b) RULE 4.1(b) = Omissions and half-truths can be fraud, bars lawyer form knowingly failing to disclose a nonconfidential material fact when disclosure is necessary. TURNS MAY INTO A MUST when lawyer herself is assisting in crime. 5. Other Ethical Rules Dealing with Crime and Fraud: (a) Dishonesty: Rule 8.4(c). 4

(b) Duty of lawyer representing an organization to call attention to crimes/frauds: Rule 1.13. (c) Duty to reveal client crimes or frauds to tribunals: Rule 3.3. (d) Duty to reveal client crimes or frauds to certain 3rd parties: Rule 3.4. (e) Duty to withdraw rather than assist client fraud or crime: Rule 1.16. H. Use of Disclosure of Confidential Information for Personal Gain or to Benefit Another Client. RULE 1.8(b): A lawyer shall not use information relating to representation of a client to the disadvantage of a client unless the client gives informed consent, except as permitted or required by these rules.

III.

The Attorney Client Privilege and Work Product Doctrine


Confidentiality and Attorney-Client Privilege Compared Ethical duty to Protect Confidences Ethical Duty, Rule 1.6 Information relating to the representation of a client (obtained from any source) Professional discipline Attorney-client privilege Common Law Evidence Rule Narrower scope: confidential communication between between a lawyer and a client for the purpose of obtaining legal advice. Quash subpoena or otherwise exclude the revelation from evidence.

Source Scope Method of Enforcement

The Elements of Attorney Client Privilege Scope of Attorney Client Privilege Requirements for attorneyComment client privilege A communication between The communication may be oral, written, electronic, etc. privileged persons Privileged persons include: lawyers, clients, prospective clients, interpreters; others who participate in the lawyerclient conversation to facilitate the communication (such as parents of minors); secretaries, paralegals, and other agents of the lawyer or the client. Which the client reasonably The communication must be private, and if lawyer or the believes is confidential. client reports on the communication to nonprivileged persons, the privilege is waived. And whose purpose is to seek or Business advice and personal advice arent covered by the to provide legal advice or legal privilege. Communication not related to legal advice or services. services isnt privileged. Consequences if Communication is Privileged Consequence Comment Lawyer cant be forced to Lawyer may not testify over clients objection, even if he is testify. willing to do so. Privilege belongs to the client. A lawyer may not waive privilege over his clients objection. The client cant be forced to Client may waive the privilege, even if lawyer objects. testify. Paper/electronic records of Only the communication, not the underlying information is privileged communication are protected. also protected. I. Other Considerations: 1. Waiver: (a) Expressly by the Client. 5

(b) Or if Lawyer or client reveals privileged information to a non-privileged person. Probably not if lawyer just says something in purely social chat w/ friend. (c) If 2 clients hire lawyer jointly, they are considered common clients with common privilege. 2. Crime-fraud Exception: (a) No Privilege attaches if client consults a lawyer for assistance in committing a crime or fraud. Clients intention is what matters, doesnt matter if didnt actually occur. (b) Distinction between request for advice that would help a client commit a crime and a request for advice about whether a certain act is permitted under the law. (c) Doesnt matter if client doesnt know that act is wrongful. 3. The Death of the Client: Privilege usually remains in force even after client dies. J. The Privilege for Corporations 1. Upjohn (1981) = corp entities can claim attorney client privilege and that scope of privilege should depend on subj matter of communication, not on who was communicating. Only binding on fed cts. (a) PROS: Encourages employees to talk and corporations more likely to do internal investigations. (b) CONS: Really hard for govt to get anything. Now govt requires waiver if too hard to get info in other ways. 2. 2 Tests for who the client is in a corporate setting: (a) Control Group Test (still used in some states) = Limits the privilege to communications from persons in the organization who have authority to mold organizational policy or to take action in accordance with the lawyers advice. (b) Subject Matter Test (endorsed by Supreme Court in Upjohn) = Extends privilege to communications with any management or lower-echelon employee or agent so long as communication relates to subject matter or representation. K. The Work Product Doctrine; 1. Protects notes and other materials lawyer prepares in anticipation of litigation. 2. 2 Types: 1) Fact (witness stmt), 2) Opinion (strategy & mental impressions so greater protection). 3. Judge can order disclosure if can show substantial need and no other means of obtaining.

IV.

Relationships Between Lawyers and Clients

L. Duties to the Client: 1. RULE 1.1: COMPETETENCE: Requires competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. (a) Comment 2: Lawyer can take on a matter in an unfamiliar field if the lawyer has time and resources to get up to speed. Either must make necessary study or associate with lawyer of established competence in field. (b) Have to be able to provide advice that the client can rely on. (c) Competence in criminal cases: i. A D appealing conviction must prove that the assistance was unusually poor AND that better representation wouldve made a difference. ii. Strickland = 2 Part test: 1) Deficient Performance and 2) Prejudice (violation of constitutional rights). Dissent thinks only requires 1. 2. RULE 1.2: SCOPE OF REPRESENTATION: Scope of Representation and Allocation of Authority. 6

3.

4.

5.

6. 7.

(a) Can contract to limit the scope of representation (must be reasonable) if client gives informed consent. (b) A person can be come a client without signing a written agreement what would reasonable person think regarding facts and circumstances in 20/20 hindsight (greater burden on the lawyer). (c) 1.4(d) = cant counsel a client to engage or assist client to do something lawyer knows is client/fraud, but can discuss legal consequences. (d) 1.2(a): Client decides objectives of representation and lawyer must consult with client as to the means to pursue those objectives. i. Civil Case: Client decides whether to settle. ii. Criminal Case: Client decides whether to plead guilty, waive jury trial, or testify. iii. Package bomber = crazy bomber wants to use illegality of search and refuses mental examination what do you do as lawyer. RULE 1.3: DILIGENCE AND PROMOPTNESS: (a) Comment 1: Lawyer should pursue a matter for client despite opposition or personal inconvenience and take whatever measures are required to vindicate a clients cause. May act with zeal in advocacy upon the clients behalf. (b) Comment 3: Perhaps no prof shortcoming is more widely resented than procrastination. RULE 1.4: COMMUNICATION (a) Must inform client of any decision requiring informed consent, consult with client about means by which the clients objectives are to be accomplished, keep client reasonably informed, promptly respond to reasonable requests for information. (b) RULE 1.2 gives some discretion to lawyer about means used to carry out representation, but still must consult with client. RULE 2.1: Legal and Extra-legal advice. (a) Cant exaggerate, lowball, or hide your honest assessment of the case. (b) Lawyer shall exercise independent professional judgment and render candid advice. May refer not only to law but also moral, economic, social, and political factors. (c) Comment: Legal advice often involves unpleasant facts and alternatives lawyer shouldnt be deterred from sharing advice that could be unpalatable to the client. RULE 6.1 and 6.2: MUST ACCEPT CLIENTS: (a) RULE 6.1: Duty to provide legal assistance to those who cant pay for it. (b) RULE 6.2: Duty to accept court assignment except for good cause. Clients with Special Considerations: (a) RULE 1.14: Client with diminished capacity/mental disabilities. i. As far as reasonably possible, maintain normal client-lawyer relationship. ii. Information is protected by Rule 1.6, only reveal as much as reasonably necessary to protect clients interests. iii. Comment 5: Guided by 1) Wishes and values of the client and 2) His best interest But, which one comes first? iv. 3rd party involvement (difficult b/c of Rule 1.6) = 1) Guardian ad litem (empowered to speak for the client, even contrary to clients expressed wishes) in particular legal matter, 2) Conservator (power to manage financial affairs of client), and 3) Guardian (manages clients financial affairs and may make medical and other personal decisions for client, who is their ward). (b) Applies same standard to juveniles. i. More difficult in child neglect/abuse cases than delinquency. 7

ii. Duty to explain the child in a developmentally appropriate way, child must have maximum input in determination of the particular position at issue. iii. Foster Child problem = kid wants to go back to abusive mothers, you think would be best for her to stay with current foster mom Rules push towards doing what she wants. M. Terminating the Client-Lawyer Relationship 1. When work is finished: (a) Lawyer must return to client any papers and property to which client is entitled. (b) Must be prompt. (c) Can only retain documents if hasnt been paid. 2. RULE 1.16: TERMINATION BEFORE WORK IS COMPLETED (a) Lawyer must withdraw if client fires the lawyer clients can always fire the lawyer w/o or w/o good cause. (b) Withdraw if representation would conflict with the law. (c) Rule 1.16(b)(1) = If lawyer wants to withdraw: i. May withdraw if it is possible to do so without material adverse effect on the interests of the client. ii. May withdraw if client doesnt pay fee, but must first warn client that withdrawal will happen if client doesnt pay. iii. May withdraw if representation places an unreasonable financial burden on the lawyer. iv. May withdraw if client makes continued representation unreasonably difficult or for any other good cause. (d) Rule 1.16(c) = Lawyer must comply with law requiring notice or permission of tribunal when terminating representation. 3. RULE 6.2: Cant Terminate when appointed by a tribunal EXCEPT for good cause: representation would violate the rules in another way, representation will put unreasonable financial burden on lawyer, or client or cause is so repungant tot the lawyer as to be likely to impair the client-lawyer relationship or the lawyers ability to represent the client. N. Legal Fees: 1. RULE 1.5(a): Usual hourly fees: MUST BE REASONABLE. (a) Used t to be OK to just send a bill at end for service w/o details about particulars. (b) General Concept behind Hourly Billing (majority of lawyers) =if a lawyer contracts to bill per hr, and honestly and diligently works the number of ours billed, then the resulting fee will be reasonable. i. Cant bill for more hours than worked (i.e. what they think their work is worth). ii. Cant round up to billing increment unless it is up to minimum billing increment (1/4 or 1/10 of an hour). iii. Cant bill for overhead costs (office space, heating, etc.), but can charge for reimbursements (postage or messenger service). iv. If lawyer does work the benefits 2 clients, ma bill each client half of the amount expended or with consent, may allocate the time in a different way. v. CO DIFFERENCE: Lawyer shouldnt bill at their hourly rates for clerical services (those usually preformed by non-lawyer) b/c attorneys professional skill and knowledge added no value to service. (c) Brobeck (1979) = REASONABLE FEE. i. Fee wasnt excessive b/c parties were on equal footing. ii. Lawyer made it clear it was on contingent basis. 8

(d) Fordham (1996) = UNREASONABLE FEE. i. Bill for DUI was excessive. ii. Lawyer was unfamiliar w/ subject matter and billed for time spent getting up to speed. iii. But test is whether fee was objectively excessive, not whether it was accepted by client. iv. Took advantage of lack of sophistication of the client. v. Cant charge for getting yourself up to speed, has to be reasonable for someone already knowledgeable. (e) **Must have at least 2 Accounts: 1) Client Trust Fund and 2) Your personal account. 2. RULE 1.5(b): Communication of Fee Arrangements: (a) Disclosure doesnt have to be in writing, unless intend to charge contingent fee. (b) Lawyer doesnt necessarily have to estimate the amount of time she will spend on a case (difficult to predict), but usually good practice to give client a high and low estimate. (c) Modifying fee arrangements = must be fair and equitable in view of circumstances not anticipated by the parties when the contract was made. Sometimes requires notification and consent or just notification. (d) EXAMPLE: Need to increase hourly billing rate from $200 to $215 for financial reasons. Send letter, but also ask for consent. (e) CO DIFFERENCE: When representing a NEW client, must be in writing. Changes 1.8(a) = Must be in writing. 3. RULE 1.5(c): Contingent Fees: (a) Types: 1) Percentage of clients recovery, or 2) Client pays hourly fee and then additional fee if specific result is achieved. i. PROS: More access, might encourage efficiency, and aligns benefits. ii. CONS: Less effort into less lucrative cases, pressure to settle, and shifts balance of power can make calls that client wouldnt otherwise agree to. (b) Lawyer must disclose how fee will be calculated, but doesnt require lawyer to deduct expenses before calculating fee percentage. (c) Cant charge contingent fees in criminal and domestic relations cases. 4. RULE 1.8: Forbidden Fee Arrangements: (a) RULE 1.8(i): Buying legal claims = lawyer cant obtain interest on claim in which lawyer is representing the client, but can if representation is terminated. (b) RULE 1.8(e): Cant provide financial assistance to client related to litigation. i. Comment 10: Can give loans to pay for living expenses. (c) Publication rights = Cant negotiate agreement on literary or media rights. (d) Cant limit liability for malpractice claims unless client is independently represented, but can limit w/in a firm. (e) Fees for lawyer that withdraws: i. If withdraws for good cause, gets quantum meruit for work done. ii. But if no good cause, no payment. (f) RULE 1.8(a): Traditional view that lawyers should avoid doing business w/ clients, but no flat prohibition. (g) RULE 1.8(b): Cant solicit a gift. (h) RULE 1.5(g): CO DIFFERENCE: No non-refundable retainers. *Sexual Relationships w/ Clients = only can have them if existed prior to representation but then could be conflict. Can w/draw, if not imputed by the firm.

V. Conflicts
O. General Principles: 1. Type of Conflicts: (a) Concurrent Conflict = RULES 1.7, 1.8, and 1.18: Conflict between 2 Present obligations of the lawyer. (b) Successive Conflict = Rules 1.7 and 1.9: Conflict between an obligation to a present client (1.7) and obligation to a former client (1.9). (c) Imputed Conflict = Rule 1.10: Between an obligation of lawyer to a client and obligation of another lawyer who is affiliated with first lawyer. (d) Government lawyer conflicts = Rule 1.11. P. Conflicts with Current and Prospective Clients: RULE 1.18: CONFLICTS AND PROSPECTIVE CLIENTS Rule language Authors Explanation (a) A person who discusses with a lawyer the Comment 2: Unilateral communication w/o possibility of forming a client-lawyer relationship expectation of possible representation with respect to the matter is a prospective client. doesnt make someone a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not Even in the absence of an represent a client with interests materially adverse agreement,...the lawyer may represent a to those of a prospective client in the same or client with interests adverse to shoe of the related matter if the lawyer received information prospective client in the same or from the prospective client that could be substantially related matter unless the significantly harmful to that person, except as lawyer has received information that could provided by (d). be significantly harmful. HIGHER STANDARD than Rule 1.9 (d) When a lawyer has received disqualifying Comment 5 = A lawyer may condition information as defined by (c), representation is conversations with prospective clients on permissible if: the persons informed consent that no (1) Both the affected client and prospective information disclosed during the client give informed consent in writing, or: conversation will prohibit the lawyer from (2) the lawyer who received the information representing a different client in the took reasonable measures to avoid exposure matter. to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee; and (ii) written notice is given to the prospective client. RULE 1.7: CONCURRENT CONFLICTS Rule language Explanation Concurrent conflict = between two current obligations of a. Except as provided in the lawyer, two clients, a client and another person, or paragraph (b), a lawyer shall the client and the lawyers own interests. not represent a client if the 10

representation involves a concurrent conflict of interests. A concurrent conflict of interest exists if: 1. The representation of one client will be directly adverse to another client.

Could become apparent at any point during the case. Cant just fire a current client to make them a former client to avoid conflict. Directly adverse = if the lawyers conduct on behalf of one client requires the lawyer to act against the interests of another current client. Doesnt necessarily have to be on both sides of the V. Comment 17 = simultaneous representation in matters where clients interests are only economically adverse ordinarily doesnt constitute a conflict of interest. **CANT CONSENT it away. Materially Adverse Comment 8 = Likelihood that a difference in interests will eventuate and, if it does, that it will materially interfere with the lawyers independent good judgment.

2. Theres 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. b. Not withstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: 1. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. 2. The representation isnt prohibited by law. 3. The representation doesnt involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before the tribunal. 4. Each affected client gives informed consent, confirmed in writing. Client doesnt have to sign. SPECIAL CIRCUMSTANCES: Joint Representation of CoDefendants in Criminal Case Family Members

Even if conflict is found under (a), in most cases a lawyer may represent the conflicting interests if he obtains the clients informed consent. But if one of the conditions listed in (b) arent satisfied, the lawyer cant ask for clients consent. Comment 15 = A lawyer may not ask for consent if in the circumstances the lawyer cant reasonably conclude that the lawyer will be able to provide competent and diligent representation.

A lawyer may not represent adverse parties in litigation even with their consent.

Comment 18 and 19 = Informed consent, lawyer must explain to each client the ways that the conflict could have adverse effects on interests of that client. Sometimes reqs. disclosure of another clients confidences, need consent. Comment 23: The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. Some states allow lawyer to represent both parties in an 11

Establishing Precedent

Insured

Class Action Aggregate Settlements of Individual Cases

uncontested divorce, others forbid lawyer from representing both but allow to assist in settlement, and some prohibit all both side scenarios. Positional conflict if decision favoring one client will create precedent likely to seriously weaken the position of another client. Must consider: (a) Whether issue is before trial or appellate crt. (b) Whether issue is substantive or procedural. (c) Temporal relationship between the matters. (d) Practical significance of issue to the immediate and long-term interests of clients involved. (e) Clients reasonable expectations in retaining the lawyer. Insured is always the client. If disagree with insurance company about whether to settle, lawyer must withdraw from representing both of them. RULE 1.8(f): A lawyer shall not accept compensation for representing client from one other than client unless 1) client gives informed consent, 2) theres no interference with lawyers independence, and 3) Information is protected by Rule 1.6. Potential conflicts with greater concern for named representatives, but ethical rules are hard to apply and are rarely applied just use class action court rules. RULE 1.8(g): A lawyer who represents 2 or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case in an aggregated settlement as to guilty or nolo contendere pleas, unless client gives informed client in writing and signed by client.

RULE 1.13: Organization as a Client and Conflict Rule Language Authors Explanation (a) A lawyer employed or retained by an organization Comment 1 and 2: This section represents the organization acting through its duly addresses who is the client of a authorized constituents. lawyer representing an organization. The client doesnt include the officers, directors, employees, and other constituents, but is the entity itself. (b) If a lawyer for an organization knows that employee Comment 4: Consider what action is is doing something not in interest of required of the lawyer depends on the organization...unless the lawyer reasonably believes seriousness of the violation and its that it is not necessary in the best interest of the consequences, the responsibility in the organization to do so, the lawyer shall refer the matter organization and the apparent to higher authority in the organization, including, if motivation of the person involved. 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), if: Circumstances under which lawyer is (1) despite the lawyers efforts in accordance with permitted to disclose confidential paragraph (b) the highest authority...fails to address in information outside of the corporation 12

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 organiz. (d) Paragraph (c) shall not apply with respect o information relating to a lawyers representation of 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 taken pursuant to paragraphs (b) or (c]...shall assure that the organizations highest authority is informed of the lawyers discharge or withdrawal. (f) ...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 employees subject to Rule 1.7. If the organizations consent to he 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 to be represented, or by the shareholders.

to prevent or remedy conduct by an employee thats reasonably certain to cause significant harm to the organization.

Paragraph (c) doesnt allow revelation of confidences as to a matter on which the lawyer has been engaged to investigate possible illegal conduct or to defend the organization or an employee against an allegation of illegal action. Duties of a lawyer who is fired or who withdraws because of action that the lawyer takes to prevent or remedy unlawful conduct. Lawyer should take steps to inform the board of directors of the lawyers firing or withdrawal. Requires a lawyer who represents an organization to explain her role whenever she is dealing with constituents whose interests may conflict with those of the organization. A lawyer who represents an organization may also represent individuals associated with he organization so long as the representation complies with Rule 1.7 and how to obtain consent from the organization.

B. Conflicts with Former Clients 1. HAVE TO ANALYZE BOTH RULES: If a present and former clients interests conflict, a lawyer should refer to Rule 1.7 for guidance in protecting current client and 1.9 in protecting former clients interests. 2. Some Specific considerations: (a) Lawyer cant fire a client to prevent conflict with a new, more lucrative client. (b) A former client can include a client who dies (2010 case). (c) When representing competitor of a former client Maritans v. Pepper: i. Consider Level of confidences, circumstances, and timing. ii. Different b/c competitors to M could become more competitive in bids if they knew what M would offer. 2. How is Rule 1.9 different than Rule 1.7? (a) No non-consentable instances, former clients are ALWAYS able to consent. (b) Timing When a client becomes a former client. (c) Even in Rule 1.9, have to run 1.7 analysis w/ respect to current client. 3. Evaluating 1.9 Conflicts: (a) Is it the same matter as the previous one? i. Comment 2: Same fact pattern Conflict, same legal issues not as likely to be a conflict (b/c lawyers expected to be able to argue both 13

sides of legal issues). (b) If not, is it substantially related to the previous one? i. But legal definition of substantially related = whether the lawyer in the course of her work in the first matter, would normally have learned information that could be used adversely to the former client in the second matter. ii. Objective standard = what kind of confidences a lawyer ordinarily wouldve learned, dont actually need to have learned it. Comment 3: Dont want lawyers to have to reveal confidences. (c) IF answer to one of the questions is yes, are the new clients interests materially adverse to the interests of the former client? i. How different than Rule 1.7 direct adversity? ii. Anytime its liely to hurt the former client (judged after the fact). (d) If answer to one of the questions is no, no consent is required from the former client even if a lawyer is using a former client on behalf of a new client, but usually not a good idea anyway. RULE 1.9: FORMER CLIENTS AND CONFLICT Rule Language Authors Explanation Explains how to evaluate the a. A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or potential for harm to former client. 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 Explains how to evaluate or substantially related matter in which a firm with which the conflicts that arise when a lawyer moves from one firm lawyer formerly was associated had previously represented to another. a client: 1. Whose interests are materially adverse to that EVERY LAW FIRM CLIENT not person; and just individual lawyers 2. About whom the lawyer had acquired information clients. protected by Rules 1.6 and 1.9(c) that is material to the matter; Your burden to prove that you 3. Unless the former client gives informed consent, in didnt learn confidences (not writing. objective test more generous to the lawyer). Bars use or revelation of c. A lawyer who has formerly represented a client in a matter confidences of former clients or whose present or former firm has formerly represented a or clients of a former firm to client in a matter shall not thereafter: 1. Use information relating to the representation to the the same extent as such use or revelation is barred for disadvantage of the former client except as these present clients. 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. RULE 1.10: IMPUTED CONFLICTS While lawyers are associated in a firm, none of them Essentially treats a firm as one lawyer shall knowingly represent a client when any one of them for the purposes of rules governing 14

practicing would be prohibited from doing so by rules 1.7 and 1.9.

conflicts. May be waived by the client, if meets conditions of Rule 1.7(b). DOESNT APPLY TO: law clerks, paralegals, secretaries, or nonlawyer employees.

EXCEPTION: Unless the prohibition is based on a personal interest of the prohibited lawyer and doesnt present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. RULE 1.10(a)(2): Chinese Wall Defense: Walls or Screens: Prohibitions of 1.9 dont apply if: a. Disqualified lawyer gets timely screened and gets no fees. b. Written notice to former client. c. Certification given to former client.

CO DIFFERENCE: Still have to give notice, but no certification required (easier than ABA). But you and new firm have to reasonably believe screen steps are likely to be effective in preventing material information from being disclosed (harder than ABA?).

RULE 1.10(b): When you leave a firm and take a client, old firm cant take on a new client w/ interests materially adverse to your former clients if: a. New matter is same/substantial. b. Any lawyer still in firm has confidential info unless former client waives problem. If Lawyer moves from Firm A to Firm B.

To analyze conflicts brought into Firm B: 1.9(b) = the Lawyer AND Firm As former clients. To analyze conflict remaining in Firm A: 1.10(b) = the Lawyers former clients still in Firm A.

II. Lawyers Duties to Public, Courts, Adversaries, and 3rd Parties A. Advertising: RULE 7.1 and 7.2:
1. Until 1970s, Lawyers couldnt advertise at all (viewed as unseemly and unethical). 2. Bates (1977) = State Courts advertising ban was held to violate the 1st Amdt. (a) Adverse effect on professionalism? Presumes that lawyers must conceal from themselves and their clients that theyre trying to earn a livelihood. (b) Inherently misleading nature of offering fixed prices? Most lawyers wouldnt do that b/c know services are so individualized. (c) Adverse effect on administration of justice? Too many people dont have access to legal services. 3. Solicitation: (a) In person: Ohralik (1978) = State can discipline a lawyer who approached accident victims, urged his service on them, and clandestinely recorded their consent. No ambulance chasing. (b) Direct mail: Shapero = invalidated state rule that barred lawyers from sending letters to people known to need legal services. State can force you to print that its an advertisement on the envelope. 4. Levels of Type of Advertising and 1st Amdt Protection: 15

B. RULE 1. 2.

3.

4.

C. RULE 1. 2.

(a) From highest to lowest protection: i. Bates = TV ads. ii. Shapero = Mail. iii. Ohralik = In person. (b) Depends on potential coercive effect, potential of damaging the profession subjective, wont more people see TV ads? 3.1: Investigation Before Filing a Complaint. Doesnt define frivolous claim. Comment 2: Facts need not be fully substantiated before its filed. It recognizes that lawyer may need discovery to develop vital evidence. But duty to inform themselves about the facts of their clients cases and applicable law to determine if they can make good faith arguments. FRCP: Rule 11: (a) Partys legal theory must be warranted by existing law or by non-frivolous argument for the extension, modification, or reversal of existing law or establishment of a new law. (b) Factual assertions must have evidentiary support or, if specifically identified, be likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Differences between Rule 3.1 and FRCP Rule 11: (a) Sanctions: 1) Rule 3.1: Bar disciplinary action and 2) FRCP: Punished by judge in civil action and can result in directives or monetary sanctions against lawyer or party. (b) Safe Harbor: 1) Rule 3.1: No Safe Harbor provision but unlikely bar counsel would file charges if lawyer withdrew pursuant to FRCP 11 and 2) FRCP 11: If opposing party makes a motion complaining that a lawyer has violated FRCP, lawyer may withdraw alleged frivolous pleading w/in 21 days and suffer no sanction other than having to pay the attorney fees that opposing party incurred for making the motion. 3.3: Candor towards the Tribunal. RULE 3.3 TRUMPS RULE 1.6. Unless court disclosure or discovery rule applies, or lawyer required to remedy false testimony or some other ethical breach, a lawyer representing a client need not inform an adversary of adverse facts. But must reveal adverse law only if in controlling jurisdiction, directly adverse (not dicta or holdings by analogy), and not persuasive authority.

16

Who might lie or deceive Lawyer Client Civil client or witness in any proceeding Criminal defendant Client or witness

Which Truth Telling Situation (Court, administrative hearing, or discovery) Lawyer is considering making a false statement of fact or law to a judge. Lawyer knows that her client is considering testifying falsely in court or in a deposition. Lawyer suspects but doesnt know that planned testimony may be false; witness isnt criminal defendant. Lawyer suspects but doesnt know that planned testimony may be false; witness isnt a criminal defendant. Lawyer knows that her client or other witness has testified falsely during direct or crossexamination. Witness has misled the court by making statements that are literally true but deceptive. Lawyer knows of directly adverse controlling legal authority that has not been disclosed by opposing counsel. Lawyer knows of facts adverse to the clients interest, not requested in discovery or required to be disclosed by court rule.

Rule Applies Lawyers obligation The Lawyer must not do it (Rule 3.3(a)(1) and 8.4(c)). Lawyer must counsel client and refrain from asking client questions that would elicit the false testimony. Rule 3.3(a)(3). If lawyer reasonably believes it is false, lawyer may refuse to offer the testimony or may allow it. Rule 3.3(a)(3). If defendant insists on testifying, the lawyer must allow it even if the lawyer reasonably believes it is false. Rule 3.3(a) (3). Lawyers must counsel client to correct the record; consider withdrawing; correct record if necessary to undo he effect of false evidence. Rule 3.3(b) and (c), and Comment 10. Lawyer may have duty to counsel client and correct the record. Rule 3.3(b) and 8.4(c). Lawyer must bring it to the courts attention (and distinguish it or explain why it is not authoritative. Rule 3.3(a)(2). No need to disclose unless the proceeding is ex parte. Rule 3.3(d).

Client or witness Lawyer

Lawyer

D. Other Rules during Tribunals: 1. RULE 3.4(d): Fairness to Opposing Counsel in Discovery. 2. RULE 3.5: Cant improperly influence judges or jurors. 3. RULE 3.6: Pretrial Publicity. 4. RULE 4.4(a): A lawyer cant use means / no other purpose than to embarrass, delay, or burden a 3rd person. RULES 3.4(e) and 3.5(d) reemphasize this. 5. Application of Rule 3.9 to Non-adjudicative Proceedings: Must apply Rules 3.3(a)-(c), 3.4(a)-(c), 3.5. E. Duties to Adversaries and 3rd Parties: 1. Communications with 3rd Parties: (a) RULE 4.1(a): Avoid material false statement. (b) RULE 8.4(c): Truthfulness in fact investigations and no misrepresentations. Govt lawyers and private lawyers can supervise undercover investigations but didnt authorize lawyers to participate personally in deceptions. 2. Restrictions on Contact with Represented Persons: (a) Must get consent fro mother lawyer or authorized by court order. (b) RULE 4.2: Corporations Comment: Lawyer cant speak ex parte to 1) persons having managerial responsibility on behalf of organization with regard to the subject of representation, 2) Persons whose act or omission in 17

connection with that matter may be imputed to the organization for purposes of civil or criminal liability, and 3) Persons whose statement may constitute an admission on behalf of the organization. 3. RULE 4.3: Restrictions on Contact with Unrepresented Persons: (a) Must explicitly state that lawyer represents a client. Always clarify misunderstandings. (b) Cant give legal advice to 3rd parties. (c) Must tell unrepresented party to secure legal counsel but may tell them more. (d) CO DIFFERENCE: Lawyer cant even tell 3rd parties to secure legal counsel.

18