Skaggs Ethics Spring 2012 | Confidentiality | Attorney–Client Privilege

LAWS 6301 Spring 2012

Regulation of Lawyers, p.1

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Legal Professionalism & Ethics – Spring 2012

Prof. Skaggs Casebook: Lerman, Ethical Problems in the Practice of Law, 2nd edition Table of Contents INTRODUCTION & FRAMEWORK .......................................................................................................3
Professionalism ...........................................................................................................................3 An Ethical Framework .................................................................................................................3

REGULATION OF LAWYERS ................................................................................................................4
Lawyer Liability (Ch.2) .......................................................................... Error! Bookmark not defined.
Disciplinary Claims: Primary goal of lawyer discipline is protection of the public; (theme: do sanctions achieve this goal?) ..................................................................................................................................................................................................... 6 Legal Protections for Subordinate Lawyers (Rule 5.2) ............................................................................................................. 7 Civil Liabilities Of Lawyers ................................................................................................ Error! Bookmark not defined.

CLIENT CONFIDENCE; A-C PRIVILEGE; A-C RELATIONSHIP ...................................................................9
Confidentiality ............................................................................................................................ 9
What qualifies as confidential information: ............................................................................................................................. 9 Consequences of failing to protect confidences: ....................................................................................................................... 9 Generally..................................................................................................................................................................................... 9 Use or disclosure for personal gain or to benefit another client ...................................... Error! Bookmark not defined.

Exceptions to Confidentiality, in Rule 1.6(B): ............................................................................ 10 Attorney-Client Privilege (ch4) .................................................................................................. 11
Confidentiality and attorney-client privilege compared ......................................................................................................... 11 Elements of attorney-client privilege ....................................................................................................................................... 11 The Crime-fraud exception .......................................................................................................................................................12 Privilege if Client is a Corporation ...........................................................................................................................................12 The Work Product prepared in anticipation of litigation ........................................................................................................13

Attorney-Client Relationship ..................................................................................................... 13
Forming lawyer-client relationship ..........................................................................................................................................13

Allocation of Authority ............................................................................................................... 14
Lawyers responsibility as agents ..............................................................................................................................................14

Duties of competence, honesty, communication and diligence .................................................. 14
Competence – Rule 1.1 ..............................................................................................................................................................14 Diligence – Rule 1.3 .................................................................................................................................................................. 15 Candid Communications – Rule 8.4(c), and Rule 1.4 ............................................................................................................. 15 Honesty/Candor in counseling: Rule 2.1 .................................................................................................................................16 Contractual Duties ............................................................................................................. Error! Bookmark not defined. Contractual limits on representation: ―unbundled legal services‖..........................................................................................16

Who calls the shots ..................................................................................................................... 16
The Competent adult client – Rule 1.2 .....................................................................................................................................16 Clients with Dimished Capacity – Rule 1.14 ............................................................................................................................ 17 Clients who may have mental disabilities ................................................................................................................................ 17 Juveniles: Rule 1.14 .................................................................................................................................................................. 18

Terminating relationship: Rule 1.16 ........................................................................................... 18

CONFLICTS OF INTEREST .................................................................................................................. 19
Conflicts of Interest .................................................................................................................... 19
Overview of Conflict Rules ........................................................................................................................................................19

LAWS 6301 Spring 2012

Regulation of Lawyers, p.2

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Concurrent Conflicts – Rule 1.7 .................................................................................................. 19
Imputation: Rule 1.10 .............................................................................................................................................................. 20 Economic competitors ..............................................................................................................................................................21 Inconsistent legal positions in litigation: Rule 1.7, cmt 24 ......................................................................................................21 Family Members ...................................................................................................................................................................... 22 Insurance companies and insureds: Rule 1.8(f) ..................................................................................................................... 22 Class actions ............................................................................................................................................................................. 22 ―Aggregate Settlements‖ of individual cases ........................................................................................................................... 22

Former Clients—Rule 1.9 ............................................................................................................ 23

TROUBLES BETWEEN LAWYER AND CLIENT ...................................................................................... 24
Legal Fees ...................................................................................................................................24
Lawyer-client fee Ks ................................................................................................................................................................. 24 Contingent Fees—Rule 1.5(c) ................................................................................................................................................... 24 Restrictions re: fees and expenses—Rule 1.8 .......................................................................................................................... 25 Fee disputes .............................................................................................................................................................................. 25 Dividing Fees—Rule 1.5(e) ....................................................................................................................................................... 26 Client Property: Lawyer as custodian of client property & docs (Rule 1.15) .......................................................................... 27

LAWYERS’ DUTY TO COURTS ........................................................................................................... 28 DUTY TO ADVERSARIES, 3RD PARTIES ............................................................................................... 35

LAWS 6301 Spring 2012

Regulation of Lawyers, p.3

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INTRODUCTION & FRAMEWORK PROFESSIONALISM
Mon, Jan 23. (Chapter 13, pp. 731-65, 776-82) What does it mean to be “a professional.” Compliance with the ‘letter’ v. fulfillment of the ‘spirit.’ Reality check on career plans  Progress in accepting women in workplace? Asking about plans to have children: has been litigated and held not discriminatory if asked of both sexes  Expectation for Avg billiable hours per year: 2200 billable = 3200 actual o Rule of thumb: 3 hrs in office for 2 billable hours o Erosion of values over time: Analogy of putting a frog in water and turning it on, he will stay in there until hes cooked vs. throwing him in boiling water he will hop out  Problem 13-3 Small Claims (p.778):

AN ETHICAL FRAMEWORK
Wed, Jan. 25: Aristotle, Kant, Mill & Moore. Guest lecturer Dr. Brian Talbot, Philosophy. [Handout]  Moral / Conventional Distinction: Moral rule trumps convention o Wrongness of violating conventional rules is wrong because of some dependence on conventions; would no longer be wrong if society said it was ok o If morally wrong, wrongness independent of social convention;  Skepticism about Professional Ethics—An Argument (1) Rules of professional ethics are conventional (2) Conventional rules never override moral rules (3) Thus, whenever morality and professional ethics conflict, lawyers and judges should always do what morality demands, rather than what the rules of professional ethics say  Premise (1): Are the rules of professional ethics conventional?—Yes o Perhaps the rules of professional ethics are codified moral rules? o Is every act that is permitted by the rules of legal ethics permitted by the moral rules?  e.g., Bring a suit that is not technically frivilous will be so expensive for other side to defend that they are forced to conceed: morally wrong, not legally wrong  e.g., attorney/client issues of withholding information that could set someone free o Is every act forbidden by rules of legal ethics forbidden by the moral rules?  E.g., judges adjudicate law as required will have moral consequences when practical effect of doing so is denying equal rights to gays  Premise (2): Do conventional rules never override moral rules? o We might have prudential reasons to conform to the rules of legal ethics—Not really, the chance of getting caught is so low; no incentive for ABA to enforce o Are there moral reasons to adhere to standards of professional ethics?  Good system and rules we have are necessary to sustain that system  Even if a rule is completely arbitrary, we still need to pick something for system to work (e.g., driving on right side of road)  Reason we have that rule is because mass violation of that rule is problamatic o How strong are the moral reasons to conform compared to moral reasons not to?  The system can sustain sometimes breaking the rules. Thus, the fact that the system cannot survive rampant rule breaking does not explain why you should not break the rules in one particular case  Summary: We have good moral reasons for making the rules of ethics, issue is if in a particular case the situation has strong enough moral consequences to override the conventional system o Ethics in law school is not meant to teach you moral rules

Prior Misconduct (p. other individual interest. self interest tension existing w/in self government of lawyers Para 14: some mandatory (shall).4(c) and 4. 1-1. Look at purpose of duty. effect on your practice. selfregulation Procedure for ethical issue: 1. MR: Preamble. some permissive (may): ―No disciplinary action should be taken when the lawyer chooses not to act or acts w/in the bounds of such discretion.4 4 REGULATION OF LAWYERS Admission To Practice: Fitness. hypothetical. reasonable. criminally prosecuted. Action: Decide and act. CO rules 8. Guide lawyers in evaluating what conduct is proper in various situations 2. case law. If you know the rules. and bar association info 2. Look at definitions c. p. torts.  How to decide whether to disclose: Balance trust and need for candid communication against disclosure. General tips:  Look at purposes and policies behind these rules. certain types of stmts don’t count as stmts of fact Ethics apply to all lawyers. public interest.3 Lesson to every lawyer—CO Sup Ct set precedent w/this case—noble intent doesn’t justify breaking the rules Exception: Rule 4. and diligent Para 5: addresses lack of civility that exists w/in legal profession—only for legit purposes. primary functions: 1.LAWS 6301 Spring 2012 Regulation of Lawyers.) Policy Issues Key words: zealous (CO disclaims ―zealousness‖ to maintain civility). People v Pautler: prosecutor impersonated public defender. If needed. Look at comments d. Look at the rule b. you can explain the purpose of lawyers to your clients and the public at-large. not obligatory (rule governs. Overlap between disciplinary actions and other types of law—contracts. review RSTMT. don’t skim over the comments to the rules. Scope note (7-10). Analysis: Talk and think about it clearly. . Provide a basis for disciplining lawyers who violate the rules a. not comment) Para 16: don’t rely on enforcement mechanisms primarily or secondarily—rely on selves and peers (rules you live by when no one is looking) *Read over preamble several times—what kind of instruction does it provide for interpreting the rest of the rules? Also. 45-71. State Ethics codes. Research: Does this rule apply? a. substantial. not to harass or intimidate. etc. What is the purpose of the provision? How does it affect my client relationship? 3. prompt. CO Criminal Justice Records Act—Sealing Records Misconduct Preamble to MRPC: competent. respect Para 7: go beyond rules—apply personal conscience and approbation of professional peers Para 10: self government. Also evaluate the consequences if you ―go with your gut‖ and disregard the rules.19-38. client’s preferences. 1-2. etc. client’s interest. your interest (minimally).  Set up standards and anticipate potential conflicts.2 comment 2: in negotiation. sanctions b. but do prosecutors have higher standard? Yes. although closely associated with gov—distinguish cts/judiciary (that have admin/rulemaking functions for lawyers) from congress and exec Para 12: public interest vs. Lesson: don’t overemphasize personal beliefs. Possible fallouts: lose license. according to Pautler and book.‖ ―Comments” are explanatory.

Character and fitness: how do you judge what character and fitness is? a. Lawyer who is sanctioned in one jurisdiction can receive same sanction in any other jurisdiction where lawyer is admitted. State Courts b. and submit/maintain records. Gravity: streaking or stealing? c. criminal records. Multiple State Jurisdictions 2. Graduation from accredited undergrad and law school.5 5 Regulation of Lawyers Institutions that regulate lawyers: (p. b. 4. any litigation you’ve been a party in). EXAMPLES: (misconduct in law school) a. Malpractice insurers. c. Gowers = Aggressive examination of relatively harmless mental health history. federal courts. 6. pay annual dues. State and Local Bar Associations c. membership in state bar association. Usually only look at events in last several years.76 Request to Disciplinary CouncilIf merit. but court said that high chance of repeat offense – did repeat once admitted to bar in CA. Passing score on admissions exam. and Clients – esp. 1. can gain admission in some other states w/o taking bar. If permanent: Can be employed but can’t go to ct and must be authorized by federal or other law. p. Timing: 10 years ago or yesterday? 3. Requirements: a. b. Legislatures. 2. Once admitted must: continue legal education. 5. and disciplinary forumsHearing Bd makes findings of fact and determine sanctionsCan appeal to state Supreme Ct . State Level: Courts. c. credit history. 3. Sometimes if admitted to bar in one state and have practiced for a number of years. b. Context: want people in this profession who are trustworthy and of high moral character and responsibility 1.1). even if not licensed there. Practice: RULE 5. administrative agencies. Law school committee found always intended to repay.LAWS 6301 Spring 2012 Regulation of Lawyers. Bar Associations. b. Admission to the Bar: Don’t lie in admission to the bar (8. traffic records. Erica = Doctored resume. Do something outside of state in which licensed to practice = can sometimes be disciplined by authorities in the state where misconduct took place. In RE Mustafa = law student borrowed money from student organization during law school. 2. Good moral character (residence and employment history. c. Law firms and other employers – internal rules and standards. then file complaint. If temporary: Must be associated w/ another authorized lawyer and reasonably relate to lawyer’s practice in authorized jurisdiction. then investigationCan be pre-trial diversion (if temporary. if govt or large corporations Sanctions: a. file answer Hearing—burden of proof = clear & convincing evidence (b/w civil and criminal proofs) Can pursue same misconduct in civil. Submission of application (must be consistent with law school application). criminal.5: a. Procedure: p. State legislatures d. Individuals: Prosecutors. Pattern: 1-time or frequent? b.37) 1. Federal courts have separate bar – usually admit any licensed lawyers hwo apply. d. Lawyer Disciplinary Agencies Federal Level: American Bar Association. and still responsible to state ethics rules where they practice. a. Lawyer who’s admitted in more than one state must report ot other states where she is admitted if discipline is imposed in one state. didn’t really speak English but no justification. identifiable problem) or If no diversion.

account for client funds  Rule 5.  Rule 5. 5. lawyer who helped friend break into wife’s house. training. 5. personal crisis.  Rule 8. (Minn. even if against client’s wishes o + from Himmel: caused more lawyers to report wrongdoing o . Effectiveness of such minor sanctions for this kind of act?  In re Peters.reasonableness decided by bar.3 (Wed.3) Examples of misconduct: 1. 2) info obtained while assisting a lawyer who is in a treatment program  Himmel Snitch-Rule: duty to report another lawyer’s misconduct.3)  Rule 8. suspended indefinitely could apply for reinstatement in 1 yr. supervision of new attorneys. CLEs.  Rule 5.. conflict policies. training.3: Non-Lawyer Employees = Lawyers who supervise nonlawyer employees must ensure that employees comply with professional rules of conduct.4: Violation of rule through the acts of another. (theme: do sanctions achieve this goal?) Grounds for Discipline:  THEME: You can be disciplined for misconduct unrelated to the practice of law (e. ransacked it. CLEs. or knows of the conduct gets underlying violation.’ o To figure out what a ‘reasonable resolution’ is.2. o Can’t just say you were ordered to do it. 2.from Himmel: misused to reveal skeletons in closet as a negotiation tactic  NY: law firm rule—discipline entire law firm Lawyers’ Responsibility For Misconduct by Other Lawyers (Rules 5. 4.1. specific project supervisor.3.6 6 Reporting misconduct by other lawyers (Rule 8. associate should do research or seek advice. o Also independent violation if supervising lawyer.73-110. o It’s an independent violation if you’re a partner/highest managerial responsibility. conflict policies.3: A lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer's honesty. b/c didn’t put systems and processes in place to prevent violations. She faced possibility of not being found fit for the bar Self Regulation—Duty to Report (8. Reporting Misconduct– Rules 5. Lawyer might be asked by a supervising att’y to falsify time records. shall inform the appropriate professional authority. supervision of new attorneys. affirms. .. Feb 1: ch2: p. 8.1. Lawyer neglecting work b/c of substance abuse. (now reinstated). Nixon)  Ex. 5. o Any lawyer who orders. 2-1) Disciplinary Claims: Primary goal of lawyer discipline is protection of the public.from Himmel: misused to reveal skeletons in closet as a negotiation tactic NY: law firm rule—discipline entire law firm Lawyers’ responsibility for ethical misconduct by colleagues and superiors: Rules 5. or some other problem. p. Judge/lawyer observes another lawyer in ct who is entirely unprepared for a hearing.LAWS 6301 Spring 2012 Regulation of Lawyers. Himmel rule (100-103) + from Himmel: caused more lawyers to report wrongdoing . 5. microwaved kitten. 1988): law school dean sexually harrassed female students that worked for him. no training Supervisors should implement reasonable steps to ensure following rules like calendars.3)  Supervisors should implement reasonable steps to ensure following rules like calendars. o If there’s a gray area. o Exceptions: 1) Info protected by the confidentiality rules. Lawyer encounters opposing counsel who is deliberately obstructing discovery. how would this compare if had been done by a practicing lawyer in a firm?.2: Subordinate Lawyers = May be held accountable for unethical actions that they were ordered to undertake if the supervisor’s instruction wasn’t based on a ‘reasonable resolution of an arguable question of professional duty. trustworthiness or fitness as a lawyer in other respects.2.1: Supervising Lawyers = Must be liable for the unethical acts of lawyers they’re supervising if they direct the act or know of the proposed act and don’t prevent it. account for client funds Professional Discipline.g. but may also qualify for (a) or (b). 3..1-5.3 Ex: The Little Hearing—immigration hearings.

Problem 2-2) Legal Protections for Subordinate Lawyers (Rule 5. o Consequences of reporting = some states allow lawyers fired for insisting on compliance with ethical rules to sue for wrongful discharge.  Margolick = NY Ct shields laywers that report dishonesty.  Kelley = associates not yet admitted to the bar aren’t officially attorneys.2) Tension: between a L’s independent obligation to comply to w/ ethical rules. Oil Co has always paid bills and not questioned. Firm can be sued for breach of k. Grossly incompetent so report 5. based on notion that people should not be forced to continue a partnership. but it would be ridiculous to permit these associates to ignore unethical behavior that admitted associates are required to report. Junior Partner in D. a violation of rules of ethics may prevent admisison to the bar.3) b. Fact that firm fired before attorney could overtly threaten to report. also with firm based on relationship with this lawyer.LAWS 6301 Spring 2012 Regulation of Lawyers. or fitness) must inform authorities.” who ended up being involved in a ponzi scheme. Sanctions are more punitive than rehabilitative? (Nagel disagrees) .126): The Photographer. but it is not dispositive. or o Resign/be fired from employment Whistleblower Protection? (depends on state.118: (Scot McKay Wolas Case) Diversity action for breach of K: Firm fired associate and refused to give a good reference after he reported fraudulent billing practices of firm’s “rainmaker. Clients don’t know enough about what’s supposed to happen to complain iii. so no reason to allow wrongful discharge suits. does client have right to waive prosecution?  TX Ct finds no fiduciary duty between partners to refrain from firing them. H&W (EDNY 1999). o Held (2): Threat to go to the disciplinary committee is powerful circumstantial evidence of firm’s intent to silence. Disciplinary agencies are understaffed ii. Reasoned that the duty to report was sufficient protection for the public against unethical behavior by lawyers. Mon.7 7   RULE 8.3 language requires evaluating “substantial question”  What if client satisfied with legal services renderered. Feb 6: Protection For Junior Lawyers. Minorities receive more complaints iv. EXAMPLES: o Little Hearing = (hearings. esp if don’t get along like partners should Potential claims against lawyers: 1. Ct denied wrongful discharge claim. so a firm may be liable for breach of contract if fire whistleblower. but firm could still fire (contrary to Wieder): Firm falsely represented venue of debt collection lawsuits. firms not governed by SOX)  Wieder v Skala (NY): shouldn’t have to choose b/w disbarment or firing: a lawyer’s duty to report is an implicit part of employment contract with a law firm. does not preclude a Wieder cause of action PROBLEM 2-2 (p. Dilemma: lawyer must choose btwn continued employment and compliance with rules of ethics  What to do if told to do something lawyer thinks is unethical: o Accept superior’s directions o Argue w/superior o Discuss problem w/another superior o Do more research or investigation to try to clarify the problem o Ask to be relieved from work on the matter. Disciplinary claims a.  Kelly v. Ct reasoned that given the role of lawyers as self-regulated officers of the court.  Jacobson = opposite result of Margolick. Ct rejects D’s motion for summary jud o Held (1): A Wieder claim is available for associates not yet admitted to the bar. Civil and Criminal Liability (Ch2: pp. trustworthiness. Should you report to Texas partners?  Rule 8. HELD: Even though firm’s practice violated ethical rules. Ethical duty imposed on lawyers to report misconduct of other lawyers (Rule 8. vs Firm’s right to fire at-will employees for any or no reason . lawyer was fired after third complaint to partner.C.1 violation on boss. Issues: i. p. for a Texas based firm suspects that a managing partner is overbilling for hours worked for Big National Oil Co. the right to fire at-will employees should be read more narrowly  Jacobson (Illinois): duty to report.110-149. p.3: If you know someone else has violated an ethical rule (substantial question as to that lawyer’s honesty. no training) New lawyer gets hug caseload dumped on her w/o advise from supervising lawyer.

g.3: duty to report “known” misconduct: (no cases in CO)  Tricky because there is an argument that “should have known” but statute requires actual knowledge (but intentionally ignorant may fall under rule)  Malpractice: have to prove damages (dovetails. Doesn’t cover all potential claims. Tort Claim (E. alteration or cancellation of a legal doc. P must prove that but for lawyer’s misconduct. let’s move on‖ 1. but most do. ―ineffective assistance of counsel‖ claim 8 2. mail. not less o CO application does not ask if you have done illicit drugs o Question #43: any additional information that might reflect on your fitness? For ex. but not the same thing as discipline system) o CO does not require malpractice insurance (Oregon is only state that requires it) . Agency law (principle bound by agent if had apparent authority. Legal malpractice: Claim brought against lawyer for prof misconduct that is alleged to have caused harm to another person i. Washington: basic way that crim D can try to overturn ruling—claim that D didn’t have competent representation required by 6th amend and that prejudiced the outcome. p.8 v. if you were addicted to coke. That breach of duty caused harm to P (but for) d.LAWS 6301 Spring 2012 Regulation of Lawyers. 3. public censure (serious offenses: appprox 100 out of a total of 4000 calls) o Standard: Clear and convincing evidence that lawyer is unfit to be licensed o Categories Intake Inquiries  Action on a case – 34%  Neglect & Communication – 16%  Mishandling funds – 10% (don’t use retainer money before you earn it)  Statute of Limitations on violations of Rules (5 yrs) o Rule 8. Contract law: breach of K e. Judges less inclined to go thru disciplinary hearing bc may be covered in civil/ crim suit and sanctions may already be awarded—―I’ve done it already. injunction. Breach of fiduciary duty (CLAW): f. and didn’t reveal it gives them leverage o DUI is big deal because it goes to real question of do you have a drinking problem o No CO case law on admissions process  thus no prescedent. Civil claims a.Ct Office of Attorney Regulation Counsel  Bar Application Process: err on side of revealing more. 4. Strickland v. but can still sue A if no actual authority) g. Disqualification for Conflicts of interest h. Other regulatory statutes Criminal claims a. negligence. Malpractice insurance not required. securities Remedies: dmgs. goes to (1) Diversion System (minor misconduct and lawyer needs to be monitored). etc Client protection funds: state-sponsored programs designed to reimburse clients whose lawyers have stolen their money Wed. P would have obtained a + judgment or settlement or that P suffered some other compensable harm (like fiduciary duty) ii. Fraud: tax. (typical CO lawyer can expect to face 2 claims for malpractice) c. intentional misconduct): Must assert i. That lawyer failed to exercise ―competence and diligence normally exercised by lawyers in similar circumstances‖ iii. or (2) trial and formal proceedings. That lawyer owed duty to the P ii. 5. Feb 8: guest lecture: Regulation Counsel from CO S. return of property. they can deny you for anything  Attorney Discipline Process: anything you do can affect your license o Is there something that needs to be investigated beyond the intake division?  if yes. CRCP 20: regarding att’y discipline b.

personal embarrassment to the client. o All info relating to the matter. or Enjoined by a court from further revelation Restatement § 60: Less strict than 1. (4) Secure legal advice about compliance with the ethical rules.6 Confidentiality of Information: (a) Shall not reveal any info relating to the representation of a client without: (1) informed consent. Timing o If financial harm  can be past.Rule 1. If you tell about exceptions. except info that is “generally known” o Personal info relating to the client that the client would not want disclosed o Info learned from client and from interviews. RSTMT distinguishes b/w disclosure that could harm client and those that could not Subject to professional discipline Liable in tort or K for negligent or intentional breach of duty Disqualified from representation of one or more clients. 3-8) Confidentiality Rule 1. (2) implied authorized in order to carry out the representation. (if needed to collect a fee or to defend against an allegation (6) To comply with other law or a court order. client may be reticent and they are often ambiguous and numurous. Exceptions .18(b): duty of confidentiality to prospective clients  People v Chavez: disqualified when present prosecution is substantially related to earlier case.) (3) Prevent substantial injury to someone else’s financial interests (contentious provision). 3-2. Togstad: competence)—duty of protected confidences even in case of prospective client . Feb 13: Duty to Protect Confidences. photos. observations. other prejudice . or other sources o Info acquired before the representation begins (such as during the preliminary consultation) and after the representation terminates o Notes or memos that the lawyer creates relating to the matter Hypotheticals: can use hypotheticals as long as there is no reasonable likelihood that the listener will be able to ascertain the client’s identity or the situation involved (comment 4) Harm client – fail to meet objectives. (5) To establish defense on lawyer’s behalf in controversy between lawyer or client.6. docs. Zimmerman). conflict of interest (vs. Prohibits disclosure only if it is reasonably likely that disclosure will harm the client: (if doing so will adversely affect a material interest of the client or if client has instructed the lawyer not to disclose such info) What do you tell your clients a/b confidentiality? Catch 22—if you don’t tell them about the exceptions they’ll tell you everything BUT if you have to follow the exceptions it could bite you. harm financially or physically. Basic Principle: Protection of all information “relating to the representation of a client” Purpose: Facilitate open communication b/w lawyers and clients (similar to purpose behind doctor-patient privilege) Asymmetrical rules—can’t tell that client is guilty. Prob 3-1. or (3) permitted by (b) (b) Exceptions: May reveal information to the extent lawyer reasonably believes it is necessary to: (1) Prevent reasonably certain death or substantial bodily harm (Spaulding v.Client confidence. . to honor the rule should exercise self-restraint and resolve marginal cases in favor of non-disclosure  Consequences of failing to protect confidences:          Generally Rule 1. (2) Prevent client from committing crime or fraud reasonably certain to result in substantial injury. (Does not apply if fraud has already occurred.6 (151-164. Attorney-Client Privilege. but can tell about client to collect fees or defend in malpractice claim (self interest) What qualifies as confidential information:  Covers any information learned in connection with a matter the lawyer is handling. or future client fraud o If physical  focus on if act that would cause harm is past or future and severity of harm if lawyer is silent Ex. o Take away: however.9 CLIENT CONFIDENCE. A-C PRIVILEGE. A-C Relationship. regardless of whether the info was received from the client or another source. 205-212. p. present. Dinner with Anna— line between permissible and impermissible drawn at point of anonymity (if virtually certain listeners could not ascertain client’s identity or situtation involved). A-C RELATIONSHIP Mon.

 But if criminal act is past and client has hired lawyer for representation relating to that conduct.3. need to interpret other law (not the rules) to determine if have a duty to report o To prevent reasonably certain death or substantial bodily harm – Rule 1. A-C Relationship. Other Ethical Rules Dealing with Crime and Fraud: o Dishonesty: Rule 8. a disciplinary proceeding.6(b)(5)  self-defense = To establish a claim against a client for unpaid fees. bars lawyer form knowingly failing to disclose a nonconfidential material fact when disclosure is necessary.6(b): MAY reveal info relating to the representation to the extent lawyer reasonably believes is necessary to:” (Note: “reasonable belief”=subjective and objective element.6(b):   Gen rule: 1.6(a): SHALL not reveal unless get informed consent or disclosure is impliedly authorized in order to carry out representation or an exception allowed under 1.? Client Frauds o Rules allowing revealing client crimes/frauds to prevent. att’y has to believe herself and it has to be plausible to a reasonable att’y To obtain advice about ethics/compliance w/Rules – Rule 1. o o    . or a criminal charge  When? –do not need to wait for formal proceedings.  lawyers should protect as confidential most information a/b past criminal activity by clients  Consider degree of harm & Likelihood EXAMPLES o Garrow and the bodies = D tells lawyers about evidence of other murders and location of bodies. but lawyer should try to talk client out of act) crimes o PAST CRIME/FRAUD: To Mitigate.16.6(b)(2) o RULE 1.13. o RULE 4. or remedy harm to others 1.4. seek a protective order.  Just knowing that client did something illegal doesn’t violate. .Client confidence.6(b)(1) o FUTURE CRIME/FRAUD: To Prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests of another. but may use the info even if client does not consent o To comply with other law or a court order – Rule 1.  Only applies if lawyer’s services are allowing client to do something illegal.10 Exceptions to Confidentiality— Rule 1. Should minimize number of people. may reveal info to prevent such actions  How much can you reveal? – no more than necessary to vindicate the lawyer.  Lawyer must withdraw (RULE 1. or to To defend against: a malpractice claim. o Duty to reveal client crimes or frauds to certain 3rd parties: Rule 3. or assist a client. or rectify substantial harm to the financial interests of another.6(b) 1.  The Lawyer must know that act would be fraudulent. p. lawyer may not reveal information].2(d) = A lawyer shall not counsel a client to engage. and take other available steps to avoid the dissemination of the info  Inform client? Notify before and seek solutions that do not require lawyer to reveal.6(b)(6)  Other law trumps professional rules.6(b)(4) To protect the lawyer’s interests (self-defense) – Rule 1. in conduct that a lawyer knows is criminal or fraudulent.4(c). 1.  Distinction b/w past (duty of confidentiality applies) vs future (opportunity to prevent— encourage client to reveal information. o “Assisting”: unclear if assisting by silence/inaction counts o “Fraud:” deliberate deception. Attorney-Client Privilege.0(d): “conduct that is fraudulent under substantive or procedural law of applicable j/d and has a purpose to deceive”. o Duty of lawyer representing an organization to call attention to crimes/frauds: Rule 1. o Duty to withdraw rather than assist client fraud or crime: Rule 1. mitigate. o Duty to reveal client crimes or frauds to tribunals: Rule 3. TURNS MAY INTO A MUST when lawyer herself is assisting in crime.  Sometimes might also have to inform someone.1(b) = Omissions and half-truths can be fraud.16). o Spaulding = D’s lawyers don’t report that their doctor revealed aneurysm (P would’ve gotten more money). Court says that P should go after his own lawyers for not requesting report or his doctors for not discovering aneurysm. reveal to police? Conflict between confidence and health law requiring to say where bodies are located.

waiver(215-44. add’l crim charges. o don’t need to bill to create a lawyer-client relationship o protects communication from lawyer to client and vice versa (including memos) o Documents are only privileged if the documents themselves are lawyer-client communications for the purpose of obtaining legal advice (e. a parent or legal guardian) or to provide psychological support (e. but still upheld because of practicality reasons (no where else to talk). Business advice and personal advice are not covered by privilege.11 Rule 1.. o The prescence of a third-party during a confidential communication could constitute a waiver of the attorney-client privilege? But:  communications with agents of a lawyer are priviledged (secretaries. also a lawyer’s or secretary’s notes are covered  interpreters are covered  if another person is needed to facilitate communication (e. but the underlying facts are not.Client confidence. Attorney-Client Privilege.8(b) Conflict of Interest: Current Clients—shall not improperly use client information to the disadvantage of the client unless the client gives informed consent (so can’t use to benefit another client or for personal gain)  Personal Gain: Ex: If representing client in land acquisition.g. . paralegals. 4-1. reputation. and o no privilege for communication that occurs in the presence of other people because the circumstances of communication are not reasonably private 3) whose purpose was to obtain legal assitance o only the part of the conversation that is for legal advice is priviledged. Rule 1.g. Problem 3-8: An Investment Project: (may have to pay lost profits to client) Mon. Confidentiality assumed when speaking in a prison. of insider trading)  May use info obtained from one client to benefit another as long as get informed consent or client is not disadvantaged by the use o Even if it doesn’t look like it could disadvantage your client. elements. didn’t meet elements of communication in confidence. potentially upgrade charge (ex. 4-3) Attorney-Client Privilege (ch4) Confidentiality and attorney-client privilege compared Ethical duty to protect confidences Source Scope Method of enforcement Ethical duty. see handout) Narrower scope: confidential communication btwn a lawyer and client for purpose of obtaining legal advice Quash subpoena or otherwise exclude the revelation from evidence (protects lawyers from being witnesses against own clients) Elements of attorney-client privilege 1) A “Communication” between privileged persons o communication between lawyer and client is privileged. and investigators). you can’t buy if there’s potential disadvantage to client – get informed consent in writing o Usually the use of info for personal gain is improper (but not always) (ex.6 Information relating to the representation of a client (obtained from any source) Professional discipline Attorney-client privilege Common law evidence rule (Fed Rule of Evidence 503: not enacted. it must have come into existence at the same time as the client’s first communication with the lawyer (or after) Whats NOT protected by privilege:  Underlying facts covered in the conversation  Documents pre-existing counseling  Anything the client brings into issue in the court  Anything disclosed outside the attorney-client relationship Problem 4-1: Murder for Hire – speaking in prision. a copy of a contract is evidence and not privileged)  If communication is a document. A-C Relationship. a shrink) o Communications with a prospective client are priviledged o Client identity is NOT priviledged (although law not entirely settled 2) which the client reasonably believes is confidential..g. but lawyer has duty to explain nature of confidentiality during first visit .. Feb 20: Attorney-client privilege: confidentiality compared. double check and have conversation with client to mitigate risk  Potential damage: dmg to biz. p.

o Rejects control group test for 3 reasons:  it frustrates the very purpose of privilege by discouraging communication of relevant info. it doesn’t matter whether they know act is wrongful or not. Waiver as to a conversation by disclosure of part of it: (designed to prevent half-truths) 6. the client. the lawyer. (and in some cases to drs. no priviledge o Client’s intention to perform a crime triggers the exception. Waiver by putting privileged communication into issue 5. or independent contractors but not shareholders or creditors) Scope: controversial o Control Group Test: limits privilege to communications between counsel and senior corporate managers who were members of the “control group”—those responsible with the highest level of decision making (still adopted by 8 states) o Subject Matter Test: scope of privilege depends on subject matter of the communication. its often employees beyond control group who possess the info needed by the lawyers to give sound and informed advice  Need broad privilege because corporate law is complicated and need to be able to go to lawyers to find out how to obey the law. stating that privilege for a dead client must give way when the infor has substantial importance for an ongoing criminal investigation. and the third person can be compelled to testify. Wed. . Waiver by reveailing privileged communication to a nonprivileged person: o waives the entire privilege. p. PH: Ct of Appeals ordered att’y’s notes be turned over.. p.Ct reversed  Held: Based on common law. are considered common clients with a common privilege.243: Suicide of Vincent Foster: investigation a/b how White House handled firings. or possible harm to friends/family o Historical exception to privilege when parties contest a will. Forming A-C relationship—Rule 1.245: extends privilege to communications with any lower-echelon employee or agent so long as the communication relates to the subject matter of the representation.  .Client confidence. S.Ct 1981). but if the right to waive privilege belongs to the client who is no longer able to exercise it. since there is no longer attorney-client privilege. including CO). based on rationale that it furthers the client’s intent. it constitutes a waiver by inaction and cannot reverse on appeal 3. Work-Product. U.18 (244-77.S. Upjohn Co.Ct 1998). can lawyer?  Balance of black letter law vs. Attorney-Client Privilege. (but conversation is priviledged if client learns planned conduct is criminal and doesn’t commit the crime) o Lawyer’s criminal intent is not relevant to privilege. Waiver by inaction: o if attorney doesn’t object and the client answers.12 Waiver of Privilege: privilege belongs to the client. A-C Relationship. o but does not include revelations to clergy. Feb 22: Corporate privilege. (S. flexibility o Swidler & Berlin (S. Atty-client privilege left intact posthumously b/c of concerns re: reputation. asking whether act is a crime) o Crime-fraud exception does not apply to past acts. A lawyer may not waive privilege over his client’s objection— Rule: Waiver requires a voluntary act by the client or by an authorized agent of the client 1. but if there is a continuting crime or fraud that results from past acts. v. not on who was doing the communicating (fed law and adopted by 14 states. 4. In corporate context. employees. and spouses) o Privildege is NOT waived if lawyer inadvertently reveals info without being negligent o If 2 clients hire lawyer jointly. The Crime-fraud exception  No privilege if client seeks assistance w/crime or fraud (similar to except in duty of confidentiality) o Privileged if client seeks advice whether future act is criminal/fraudulent (cf asking for advice that would help commit the crime vs. civil liability. p. Express waiver by client 2. Compliance with court orders: (does not waive the issue for purposes of appeal) Controversial: whether lawyers can waive atty-client privilege for dead clients  Rule: Privilege remains in force even after the client dies. 4-4) Privilege if Client is a Corporation   Corporations have privilege in consulting w/ attorney through agents of a corporation (could include officers.

A-C Relationship. signed K. but downsides for public and corporation o Problem 4-4: Worldwide Bribery Protects notes and other material that a lawyer prepares “in anticipation of litigation” from discovery. not confidential to anyone. or ongoing representation Does require competence.1competent representation) o Lawyers are allowed to be picky. so if give privileged materials to govt. but if in interview.1: lawyers’ duty to provide legal assistance to people who are not able to pay for it (50 hrs pro bono/yr)  Rule 6. . Taylor & FRCP 26(b)(3) The Work Product prepared in anticipation of litigation    Attorney-Client Relationship Forming lawyer-client relationship    Doesn’t require fee. payment. age. religion. diligence. o Balancing test: want info. not employees w/in corp. even if ct can’t pay—lawyers must accept unless good cause  Lawyer may not discriminate on basis of race.Client confidence.13 o o application of test is unpredictable: some cts hold that control group includes managers of departments and other cts include only corporate VPs Elements for Upjohn standard to apply 1) Lawyer must be acting as corporate counsel 2) Purose of communication must be to allow counsel to provide legal advice to corp 3) Employees must be aware that they are being questioned for this purpose 4) Employees must be aware that converstaions are highly confidential Atty must realize he represents corp. May consider refusal to turn over category I info (factual) in decided whether to charge. disability. Corporate consel are ethically bound to choose the interests of the corporation over those of its constitutients  Deceptive to employee?: refusal to participate in internal investigation is a breach of employee’s duty of loyalty to the corporation. sex. employee implicates himself personally in criminal conduct. need more than merely desire or convenicence  Legitimate need depends on:  Likelihood and degree to which the privileged info will benefit investigation  Can info be obtained in a timely and complete way using alternative means  Completeness of the voluntary disclosure already provided  Collateral consequences to a corporation of a waiver  If legitimate need exists. and communication o How do you know if you’re competent? See cmts after Rule 1. nationality. except  Rule 6.1 Choosing clients: Lawyer can take on a case in an area of law which he has ltd experience if he compensates through study or affiliation w/another lawyer and has time/resources to take on the case (Rule 1. honesty.” not underlying information/facts o does NOT protect materials lawyer creates or collects for other reasons o protects some documents not covered by A-C privilege because do not relate to communications between lawyer and client o Usually no protection for documents client turns over unless lawyer can show that their “selection and compilation” of the documents reflects litigation strategy Not an absolute protection: o Judge can order disclosure if opposing party shows (1) “substantial need” and (2) is “unable w/o undue hardship to obtain the substantial equivalent” of material by other means o Stronger protection of lawyer’s mental impressions: need “extraordinary circumstanaces” Origins: Hickman v.2: ct may assign lawyer to represent indigent criminal D.” but general rule is if not confidential to 1.  p. Protection of a lawyer’s “mental impressions. or protected category in decision a/b which clients to represent . Attorney-Client Privilege. forfeit A-C and work product protection o McNulty Memo (outlines what DOJ prosecutors can seek): Prosecutors may only request waiver when there is a legitimate need for the privileged information to fulfill their law enforcement obligations. may have unknowingly lost 5th amend priviledge against selfincrimination  Governmental requests for waiver of privilege o 1 ct recognized “selective waiver. step-by-step process requring supervisor approval.

Only the acts or statements of a client (or another principal) can justify reliance by the third party Authority to settle litigation—states differ on whether by merely hiring a lawyer to represent him in litigation. 6. diligence. Vesely (1980). (see additional comments) o Self-regulatory—lawyers must understand limits. (2) D acted negligently or in breach of contract.269: P went to lawyer for legal advice. was told there wasn’t a case. (3) such acts were the proximate cause of P’s damages. 5-2.16(b). Problems 5-1. know what they must do to provide competent representation.3. Where apparent authority would not have been enough to enforce a settlment that was reached without the clients actual agreement. (4) that but for D’s conduct the P would have been successful in prosecution of their claim. even if the client did not actually authorize those actions o Retaining a lawyer may confer apparent authority o Note: a lawyer’s statement to a 3rd party that she is authorized to act doesn’t constitute apparent authority. 5-3) Allocation of Authority Lawyers responsibility as agents   Agency Law: where one has the authority to act on behalf of the principal (the decision maker).  p. (factors: did not qualify his legal opinion by urging her to seek a secondary opinion. effective counsel—Rules 1. 1. 3rd party may rely on the lawyer’s subsequent actions.1. client’s departure from room after agreeing to ground rules that someone with authority to settle be present throughout negtoiation along with the words “you handle it” were sufficient to give attorney actual authority to settle case in his absence. most state negligence law requires a duty owed that arises out of some special relationship Mon. a client authorizes (implicitly or by apparent authority) lawyer to settle case o A settlement agreed to by an attorney in open court is binding on the client (policy of protecting adversaries) o Out-of-court settlments: Client may be bound by implied authority discerned from an extensive course of conduct  Ex.0(d). client implicitly authorizes lawer to take action that is reasonable and calculated to advance client’s interest o But Certain actions may not be valid unless lawyers have express authority Apparent authority o When client tells 3rd party that client’s lawyer has authority to settle a claim on his behalf. candor. and relied upon this advice in failing to pursue a claim. and do it .1:.Client confidence. and also the thoroughness and preparation reasonably necessary for the representation. promissory estoppel o Togstad v. did not tell her that he lacked expertise in med malpractice area  Elements for a legal malpractice action: (1) an A-C relationship existed.14 Offering advice as the basis for a lawyer-client relationship o When a person seeks legal advice or legal services from a lawyer. individual receiving advice might be injured  Contract theory: if no fee.2.1  Rule 1. honesty. 8.  Why require an attorney-client relationship? In the case of purely economic harms. Feb 27: Lawyer as agent. A-C Relationship. and the lawyer gives legal advice or provides legal services. . Competent representation requires the legal knowledge and skill.4.   Duties of competence. Client is bound by what lawyer does or fails to do Express and implied authority o Both are “actual” authority: (client bound by lawyer’s actions) o Implied authority: by just asking lawyer to represent him.4(c): (p. 1. the person may thereby become a client  Don’t be cavalier a/b giving legal advice  Agreement to pay a fee is not a necessary aspect of lawyer-client relationship o Three Theories:  Tort Theory: A-C relationship is created whenever an indiv seeks and receives legal advice from an attorney in circumstnaces in which a reasonable person would rely on such advice  Negligence Theory: if render legal advice (not necessarily at someone’s request) under circumstances which made it reasonably foreseeable to the attorney that if such advice was rendered negligently. 1. p. Ct held that an attorney-client relationship was formed under these circumstances because reasonably foreseeable to lawyer that she would be injured if advice was negligently given. Thus. 2. Attorney-Client Privilege. Lawyer is “agent” of client (the “principal”). duties of competence. 279-309. 1.1. communication and diligence Competence – Rule 1. honesty.

4    . file malpractice suit against lawyer.1) o Not explicitly required to be honest with clients…just “reasonable communication” under Rule 1. lawyering skills.15    Examine own experience. available time/resources before taking on a client ABA’s MacCrate Report (p.285: ineffective assistance of counsel: crim D challenges conviction based on conduct of his/her atty. If challenged/ineffective assistance of counsel. end the issue? Honesty and communication under ethics rules o Required to be honest in front of tribunals (Rule 3. deceit. was counsel’s decision not to investigate reasonable under prevailing professional norms  (2) Prejudice: deprived D of fair trial (i.4. . Organization and management of legal work. o p. they are NOT excussed from duty of diligence if leave a firm (unless withdraw from representation) Lying vs deception: Is there a moral distinction? o White lies. or misrepresentation” o If a lie to a client amounts to fraud. outcome would have been favorable.Client confidence. Found lawyer’s decision not to investigate further into character or psychological evidence was reasonable given strategic decision to rely on D’s acceptance of responsibility) o Sixth Amendment: req that a criminal D be provided with a lawyer whose work meets at least the minimum standard of being “effective (state may provide more protection)  Differs from disciplinary grievance based on incompetence—ineffective assistance of counsel is criminal issue by which D can get case overturned (issue of attorney possbly being disciplined even though client got no recourse) o STANDARD: 2 prongs to ineffective assistance of counsel (must meet both)  (1) Must show lawyer’s performance was deficient  General assumption is reasonably effective assistance of counsel. Here. p. Legal analysis and reasoning.3: “A lawyer shall act w/reasonable diligence and promptness in representing a client. Litigation and alternative dispute resolution procedures. Competence in criminal case: Strickland v. A-C Relationship. Factual investigation. then high level of discretion to lawyer’s opinion to encourage people to represent criminal Ds o Could attorney have taken multiple reasonable approaches o Atty acting in time (not in hindsight)  Objectively. competency rule requires lawyer to do some research. Legal research. comment Rule 8. Issue of store’s lawyer offering to settle with a payment plan where monthly payments lower but end up paying more overall. Counseling. Recognizing and resolving ethical dilemmas Client’s Recourse: may complain to bar disciplinary authorities. Negotiation. especially in death sentencin cases) o Std is high: tough for Ds to prevail in these cases. bring an ineffective assistance appeal Problem 5-1: The Washing Machine: even where client can’t pay fee. or in criminal case.” o Comments state lawyer take “whatever measures are required to vindicate a client’s cause” and must act “with zeal in advocay upon the client’s behalf” o The term “Zealous” was replaced with “diligence” in rule and term “zeal” dropped to comments (concern re: scorched earth litigation and may encourage unethical behavior) If lawyer accepts responsibility by virtue of making agreements with clients or filing with court. to protect your own privacy.. 6th Amend (held: Sup Ct denied appeal in death sentencing case. and Rule 1. A reasonable probability is a probablity sufficient to undermine confidence in the oucome o Marshall’s Dissent: if can prove inadequacy. Washington (S.Ct 1984). fraud. to protect people.3(a)) and third-parties (Rule 4. but Ds bring this type of case often Rule 1.4(c): prohibits “conduct involving dishonesty. the store’s credit department had actually violated fed collection rules and the case ended up being dropped. complexity of case.e. Oral and written communication.280): lists 10 fundamental lawyering skills and 4 values needed before assuming ultimate responsibility for a client: o 10 Fundamental Lawyering Skills: Problem-solving. a trial whose result is relaible)  Reasonable probability that but for counsel’s errors.3   Candid Communications – Rule 8. depends on the state’s substantive or procedural law (definitions of fraud vary from state to state)  Diligence – Rule 1.4(c). Attorney-Client Privilege. prejudice necessarily follows (thinks standard is too high.

Comment: Legal advice often involves unpleasant facts and alternatives – lawyer shouldn’t be deterred from sharing advice that could be unpalatable to the client (Legal and Extra-legal advice) Problem 5-3: Torture (important): Office of legal counsel in DOJ wants a memo that gives an aggressive legal interpration that would protect to maximum extent possible the CIA officials from any future torture protection o You are reviewing a memo which interprets Anti-Torture law in light of a medicare statute so CIA could be more “aggressive” in torturing.g. May give interogators an “acting on advice of counsel” defense if every prosecuted Rule 1. A-C Relationship..8(h): advance waiver of malpractice Contractual limits on representation: ―unbundled legal services‖   Wed. and explain to extent “reasonably necessary” for client to make “informed decsions” re representation.14. misapplies Sup Ct’s Steel Seizure case to argue that law may be unconstit’l if it interferes with president’s power as commander in chief and doesn’t cite. Problems 5-4.4(c) [STOPPED READING] o p. and political factors. 3) testify Rule 1.2   Rule 1. Lawyer shall exercise independent professional judgment and render candid advice.2(a) o E.2. 1. May refer not only to law but also moral. 334-40. economic. 1.4. 344-50.16 (p. 1. 2) waive jury trial.2(c): can limit scope of representatio “only if limitation is reasonable under the circumstances” o Need informed consent after consulting about material risks and alternatives Can’t limit allocation of authority in Rule 1. or  Option 2: Despite client’s objections. Barnes (US 1983)(p.” may amount to deceit or misrepresentation and thus be grounds for professional discipline under Rule 8.2: Scope of representation & Allocation of Authority btwn client & lawyer (chart p. Feb 29: Managing and Ending the A-C relationship—Rules 1. Rule 1.Client confidence.keep the client “reasonable” informed about the “status” of a matter.309-331. try to persuade judge to order psych eval  note trying to divest client of power to make a key strategic decision.313): No duty to press nonfrivolous args raised by client. parties can’t agree that lawyer will ultimately decide how to plea o “Preliminary” invest doesn't mean can be improper  still have duty of competence and diligence (cross reference: Rule 1.2 and Rule 1. or hide your honest assessment of the case.4 allocate decision making b/n lawyer and clients. it is the D and not the lawyer that will bear the personal consequences of a conviction  Balance strategy w/D’s right to defend himself o 4 particular decisions the Client has the explicit right to make:  Civil case: client decides whether to settle  Criminal: client decides whether to: 1) plead guilty.1 Can’t exaggerate. Attorney decides the means  ct reasoning: dilutive effective of adding on too many weak arguments  Dissent: the right to defend is personal: ultimately.311) o Client determines objectives of representation & Attorney consults with client as to means  Jones v. strong chance get death penalty. likely to fail and he will get death penalty.4 . (concludes: anti-torture statute applies only where an interrogator specifically intends to cause the kind of extreme pain that would be associated with organ failure or death) o Problems: interpretaion is a strained use of law that has nothing to do with interrogations. Even if a lie does not amount to “fraud. Client expressly objects to a mental-status defense o Three options:  Option 1:” allow D to try and persuade jury bombings were necessary. Attorney-Client Privilege. lowball. p.16      Honesty/Candor in counseling: Rule 2. Problem 5-4: The Package Bomber. . when he learns of this will probably fire you   . 5-7 Who calls the shots The Competent adult client – Rule 1.321: (Ted Zasinski case) D justified mailing bombs to prevent what he saw as a greater threat to socieity from ever-advancing technology. social.

if:  (1) client’s competence has failed.  (2) client has chosen a course of conduct contrary to his values. GAL for best interest o Conservator: power to manage financial affairs of the client. elder exploitation—adult child spending elderly parents money in child’s own interest rather than parent’s) . Mello calls state assisted suicide) Client’s Rt to FIRE Att’y: almost always allowed except if on eve of trial. sell. would cause “undue delay” (a) Reasonably maintain a normal client-lawyer relationship (b) Reasonably necessary protective action o when lawyer reasonably believes the client: (1) has diminished capacity.2: client’s objective = persuade jury bombings were necessary.4 o Rule 1.14. obviously nutso but Prof decided to advocate for his right to refuse based on client’s ability to accept alternate consequence of treatment in facility without medication Clients with Dimished Capacity – Rule 1.. att’y’s obj = avoid death penalty. who thereby loses the power to buy. financial decisions. A-C Relationship. etc. (2) is at risk of substantial physical. fewer ethical conflicts o Power of atty: not appointed by ct. and (3) cannot adequately act in client’s own interest. retain ability to act and to revoke. lawyer is impliedly authorized to reveal info about client. client has ultimate authority re: objective (6th Am: rt to assistance of counsel)  contradictory objectives: should your objective to save his life > client’s objective to die rather than have mental health defense imosed on him (secondary issue of what Prof. but only to extent reasonably necessary to protect the client’s interest Factors for assessing client’s mental capacity (1. manages client’s financial affairs and may make medical and other personal decisions for the client (can be limited based on nature of incapacity of client)  Reliance on family members > lawyer authority b/c more accurate gauge of substituted judgment. the lawyer may:  1) consult with indiv/entities that have ability to take action to protect client and  2) may seek appoint of a third-party guardian who would make some legal decisions on behalf of the client o Rule 1. . only in emergency) 3) Invite others to substitute guidance (note: ct has to appoint. appts an agent to deal w/whatever’s listed in POA—includes closing on a house. less permanent.Client confidence.  p.6: when taking protective action under 1.14   Clients who may have mental disabilities Options: 1) Follow instructions and treat client as competent (anti-paternalism) o Intervention may be appropriate in order to achieve what client’s actual enduring values. and  (3) that in fact client would choose differently if he were competent 2) Impose own ideas (de facto not norm anymore. or hold property o Guardian: ct appted. can take away atty-client trust) o Guardian ad litem: empowered to speak for the client in a particular legal matter (even contrary to client’s expressed wishes)  Best to have GAL and atty working together—atty speaking for client’s expressed wishes.g. can often be abused (e. less expensive. Attorney-Client Privilege. for person who has not yet lost capability of doing action himself  Typically for particular purpose or in anticipation of problem (elderly). or other harm unless action is taken.17    Option 3: compromise: convince D to submit to psych exam by falsely telling him you will not use results during “guilty” phase but only during “sentencing”  Misleading: he may agree to this but only because he thinks he will be acquitted and so psych eval will never come out  Rule 1. financial. comment 6): balance o Client’s ability to articulate reasoning o Variablity of state of mind and ability to appreciate consequences of a decision o Substnative fairness of a decision. effectively is the person.14(b). and o Consistency of a decision with client’s known longer term commitments and values Class Hypo: Right to refuse medication? Prof had a client that was being forced to take pysch medicine against his wishes.

 May refuse to disclose law-firm documents reasonably intended only for internal review  If a client as not paid the bill. abuse.14 applies same standard to minors as it does to adults with mental impairments o Young ≠ diminished capacity necessarily. any documents as client reasonably needs. confidentiality. . assume regular capacity at first Delinquency cases: similar to criminal cases. less shaped by traditional A-C relationship than in delinquicy cases.14. Juveniles: Rule 1.16(c)  C persists in action involving A’s services that A reasonably believes is criminal or fraudulent  Repugnant/fundamental disagreement  Client doesn’t pay lawyer’s fee (with prior warning)  Unreasonable financial burden on lawyer  Client will not cooperate: makes continued representation by lawyer “unreasonably difficult”  Other good cause 3. Stds of Practice for Lawyers Representing a Child in Abuse & Neglect Cases  Child’s attorney: Same duties of loyalty. May withdraw  if its possible to do so without material adverse effect on client’s interests .Client confidence.16(d): when work is finished.16 1. child may not have their own lawyer in custody cases o ABA. . must return “any papers and property to which the client is entitled. must allow client to inspect and copy any document possessed by the lawyer relating to the representation and (2) lawyer must deliver promptly after representation ends.16(d) and cmt 18  Rule 1. . Comment 1: children as young as 5 or 6 are regarded as having opinions that are entitled to weight in legal custody proceedings o However. unless retention would “unreasonably harm the client” Rest §43 . and competence  child is a separate individual with an independent voice  Guardian ad litem—often appointed by the court. A-C Relationship. protect child’s interest wihtout being bound by child’s expressed preferencess  Representation of child’s expressed preferences—may not advocate contrary to child’s express interest unless it would be dangerous  Duty to explain to the child in a developmentally appropriate way such information as will assist child in having maxiumum input Problem 5-7: The Foster Child: Should you advocate for a particular placement? Terminating relationship: Rule 1. may keep documents that the lawyer created for the client. children may have fewer rights. lawyers follow norms of representing adults o Young children are empowered to set the objectives of their criminal case to same degree as an unimpaired adult o “Lawyers for children need to be particularly good communicators .1. sensitive to the risk that their clients will put too much faith in their advice . unless substantial grounds exist to refuse. usually need permission of the court that is to hear case 1. and neglect proceedings o Rule 1.18   Rule 1. . Duties to client at conclusion of the relationship: Rule 1.14   p. Attorney-Client Privilege.16(b)(1) o in matters of litigation.” Duty to protect client confidences continues indefinitely o Restatemet §46 is more specific: (1) on request. Must withdraw if:  Lawyer is fired by client  Representation will require lawyer to violate MRPC or other law  Atty’s physical or mental condition materially impairs atty’s ability to represent client 2. .” Custody.

obtain their informed consent.Conflicts of Interest. 1. conflicts between current clients—Rule 1. consult w/affected clients under para (a). Mar 5: General principles.10 (p.7 4-Step Analysis: how to evaluate current-client conflicts (Rule 1. etc. changes in clients biz relationships..e.. 19 CONFLICTS OF INTEREST Mon. cmt 2): Lawyer must Step 1: Clearly identify client(s) and matters on which firm is representing them.351-77. 3 rd parties.7. 1. but you have to recognize that a conflict exists first  Conflicts with whom: Can involve tons of people: current clients.e. discipline. and send written confirmation to the client of the informed consent.7(a)(1) .11 Policy Objectives:  Benefits (arg for construing rules narrowly) o duty of loyalty to client o don’t want to put confidential information at risk o lawyer impartiality and protection of adversarial system  Cost (arg for reading rules loosely) o Availability of counsel of client’s choice o Economic liberty of lawyers o Prevent tactical misuse of disqualification motions RSTM: consider  Effect of conflict (what harm is the rule trying to prevent)  Significance/extent of potential harm  Objective reasonableness standard General Principles:  Conflicts can sneak up on you—not just at beginning of atty-client relationship  Many conflicts can be resolved by obtaining informed consent of the clients affected.18: conflict btwn two present obligations of a lawyer Successive conflict: Rules 1. past clients. fee forfeiture o Business: client may fire you or mistrust you. and 1. malpractice liability.9 Imputed conflict: Rule 1. new associates.  May proceed despite conflict.  need systems in place to identify persons/issues involved to identifying conflicts. cmt 3  Another issue occurs w/firm mergers and lateral moves of lawyers  Rules are broad and fuzzy and don’t provide definitive answers (but what part of the law isn’t?)  Consequences of representing a client in the face of a conflict o Legal sanctions: disqualification. other lawyers in your firm. harm to professional reputation Possible solutions when a conflict arises  May need to withdraw  Decline to represent a new client.7: Is there a conflict? – Two types of concurrent conflicts:  1) Direct adversity: if lawyer’s conduct on behalf of one client requires the lawyer to act against the interests of another current client – MR 1. injunction against representation (transactional case).8. 6-1.7.10 Conflicts for present and former government lawyers: Rule 1. if conflict is “consentable” (i.7. waivable)  Remedy conflict by agreeing to limit scope of representation or impose a “screen” between conflicted lawyers Concurrent Conflicts – Rule 1. and 1.7. prospective clients. 6-2) Conflicts of Interest Overview of Conflict Rules     Concurrent conflict: Rules 1. Rule 1. is conflict consentable) Step 4: If so. and determine whether each is present or former Step 2: Determine whether a conflict of interest exists Step 3: Decide whether lawyer is permitted to represent the client despite the existence of a conflict (i.

so cheaper—share of atty would be less.Conflicts of Interest. Problem 6-1: The injured passengers.16) Imputation: Rule 1. a former client.  If A declines. DH  . lawyer may NOT proceed with the representation because will not be able to obtain informed consent from client B  Advanced waivers sometimes enforceable Withdrawal and disqualification (Rule 1. then so do all the other lawyers in the firm  Def. even if clients consent. same side (but there could be even if no cross claim. get a “prenup” for future waiver Problem 6-2: I thought you were my lawyer! (suing current clients)  Case 1: DH (your client) v. Bus company  Case 2: Husband (your client) v..g. (15 states allow as an alternative to client consent (MR does not)  Imputation rules do NOT apply to conflicts presented by paralegals. lawyer’s own interests o Material limitation: A “mere possibility” of harm is insufficient to present a conflict. and possible alternatives to lawyer proceeding w/representation  If disclosure of confidential information about A is necessary for client B to understand the nature of the conflict. o other relationships include: another client. fiduciary).10 Firm of lawyers essentially =1 lawyer re: rules governing loyalty to the client. someone else to whom lawyer owes a duty (e. some costs may also be lower…  Not directly adverse—same interest. would it “materially interfere” with the lawyer’s advice to or representation of a client? –cmt 8 If a conflict exists.  Informed consent: defined in Rule 1. need to get A’s permission. So if one lawyer has a conflict. of a “firm”: imputation of conflicts to all lawyers in same firm. externs.  2) if such a divergence is likely. Cross-examining a current client Representation of co-plaintiffs or co-defendants in civil litigation  Ex: Injured passengers: Reema’s settlement > Jill’s settlement  Must tell clients a/b settlement  Must tell clients a/b changes in circumstances that reqs informed consent 2) significant risk of a material limitiation on lawyer’s ability to represent another client.0  Lawyer must orally explain risks. confirmed in writing (impresses the seriousness of the decision on the client)..  Are matters factually interrelated?  Joint representation w/divergent interests?  2 current or 1 current & 1 former? If only former client impacted. consentable  Friendship/bond of professional loyalty toward 1 of clients?  Sophistication of client (2) Representation isn’t prohibited by law (3) Can’t represent opposing parties in same litigation. contributory negligence?)  But significant risk that representation of 1 or more clients will be materially limited b/c injuries were so different and there’s likely a cap on cab’s insurance policy. Ask:  1) How likely is it “that a difference in interests will eventuate”? and. advantages. cant represent both husband and wife in divorce) (4) Each affected client gives informed consent. also issues keeping confidences potentially b/c of joint representation  Communicate w/clients potential risks and possible alternatives  In addition to consent. etc. even if in offices in different countries o Separate pracities/shared office: maybe if file mgmt and communication might permit access to confidential info  “Screening” off conflicted lawyer to allow law firms to prevent a conflict of one lawyer from being imputed to other lawyers.  ex. law clerks. scene 1  Why would passengers want same lawyer? Personal injury tends to be contingency fee. is it consentable? – Can consent if: (all 4 elements must be met) (1) Lawyer reasonably believes (objective) that lawyer will be able to provide competent and diligent representation to each affected client  NOTE: Consider adverse effects on relationship and representation. o o o 20  If one client files a lawsuit against another client (can be unrelated matters). someone besides client is paying fee.

Despite Al-Bahlul’s statements to the court that he did not want Frakt to serve as his lawyer. the government began to introduce evidence that was subject to the objection that it was inadmissible. marshall setting this would lead to case dismissal. then may be an issue o Substantive or procedural? o Time b/w matters? o Practical significance of issue to immediate and long-run interests of clients involved o Clients’ reasonable expectations in retaining the lawyer Problem: Top Gun: Represent city pro bono on case claiming gun sales are public nuisance. but he did not recognize the legitimacy of the tribunal. ordering search of detainee’s mail resulted in breaking lawyer-client confidences. prospective clients.13 (pp. they could have brought it as death penalty case. Chief Counsel. 1. Problems 7-1. Fiduciary duties Positional conflict: lawyer making inconsistent arguments on a legal issue in different courts at different times w/o running afoul of the conflicts rules o Generally not enough to disqualify you—inherent in the business o But Conflict exists if significant risk that one position will materially limit client in another case—if one precedent will strongly affect next case Consider (RSTM §128.S.7. cmt 24    Mon. Guantanamo Bay) where he prosecuted U. Hamdan  Fundamental Flaw: more concern with the political consequences than with the legal consequences (politics being mixed in and tainting process of law) o Problem with process: lack of understanding regarding fundamental ethical lawyer environment (e.7. 6-5). inconsistent positions. an alleged terrorist. (pp.7. Mar 12: guest: Omar Ashmawy. Cuba. economic competitors. which is what D really wanted (to be a martyr) . Office of the Chief Prosecutor. cmt f) o Trial or appellate ct?—if same j/d where precedent is binding. As the trial began.. 37881. B. cmt 6: “simultaneous representation in unrelated matters of clients whose interests are only economically adverse.does not ordinarily constitute a conflict of interest. prob here was defense wasn’t even aware)  attorney’s forced to charge with offenses they didn’t think fit  Attorneys responses to ethical issues: some ignored. v. N. Problems 6-3. the judge ordered Frakt to represent Al-Bahlul. Evidence issues (hard to get access because of confidentiality) o 3. Al-Bahlul faced a possible sentence of life in prison.. 383-88. some left (one guy who left in very public way. An outranking official telling you want to do as a lawyer  unlawful command influence (normally in ct. Frakt went to court and sat at the table for defense counsel. and Frakt’s statement that he wanted to respect Al-Bahlul’s wishes. 21 Conflicts between current clients.g. criminal co-defendants— Rules 1.. Office of Congressional Ethics. Office of Military Commissions (U. rep. Ch7: Rep. putting out press release  case actually being dismissed)  Problem/Ex: o Major David Frakt (USAF) was assigned to represent Mr. also represent pharma co that may be affected by precedent or credit rating will be hurt Inconsistent legal positions in litigation: Rule 1.. Can’t rely on due process o 2. Major. 391-415.11). 7-2) [DIDN’T READ] Economic competitors   Rule 1. what would you have done? Would you have attended the court proceedings? Sat at the counsel table? Objected to prevent the admission of evidence that could have been excluded if objected to? Crossexamined the prosecution’s witnesses?  What attorney did?: protested proceedings by sitting there and not saying anything  Result: convicted of all charges and sent to life in prision  Twist: if had actually litigated case.Conflicts of Interest.. organization. did not want to participate in all of its proceedings. normally business competition isn’t a conflict. problem was there was no process to weed this out)  Ethical Problems: o 1. but different b/c they’d learned so much about 1 client that it would be materially adverse to original client to take on competitors. and told Frakt that he did not want Frakt or anyone else to represent him.” o But may be breach of atty’s fiduciary duty (CLAW) to represent conflicting interests Representing the competitor of a former client o Maritrans: Chinese wall defense (Rule 1. rep. If you had been Frakt. Ali Al-Bahlul. Air Force JAG. S. in a trial before a military commission at Guantanamo Bay. both parties.

Problem 7-3). co’s.8(g): can’t do unless each client gives informed consent.7. such large-scale multiparty litigation generally settle in clusters. o Must communicate directly with each client o Disclose total amount of settlement o And explain to each client what share of the settlement others are to receive. even with consent o Examine if there are issues that might lead to conflicts:  Kids  Assets  Financial differences  Personal conflicts—longer relationship w/one client? Representing family members in estate planning o Potential probs: one spouse has a secret.7(a) An “aggregate settlement”: involves multiple plaintiff’s claims against a common defendant.9 (p. . ins. 435-59. etc—confidence issues o Florida Bar Opinion 95-4  “Separate confidence”: Lawyer represents both spouses in wills. Problems 8-1. 1. Rst §128.8(f): Lawyer shall not accept compensation for representing a client from a 3 rd party unless o informed consent.7. one spouse wants to disinherit a child. Rule 1. 1. family members. and o information relating to representation is protected under Rule 1.. 22 Wed.Conflicts of Interest. Disclosure shall include the existence and anture of all the claims or pleas involved and of the participation of each person. class actions. D Rule 1. o Must also disclose amount of fees and costs lawyer will receive o Must also obtain informed consent to share confidential info among them  Insurance companies and insureds: Rule 1. 416-33. in writing. then maybe only technical rather than actual adversity (some states) o Some states forbid lawyer from representing both in the suit for divorce. settlements—Rules 1. Former clients—Rules 1.6 Who is the client of the insurance defense lawyer? The insured. rep. Husband uses another firm to add codicil benefiting woman/extra-marital affair. lawyer must withdraw from joint representation b/c conflict of interest. Mar 14: Rep.9?: unnamed defendants not considered clients for purposes of Rule 1. cmt. not the insurance company If K sets it up that atty represents both insurance co and insured. o no interference w/ lawyer’s independent judgment. Rule 1.. atty has to withdraw What does lawyer do if conflict arises b/w insured and insurer? Act in best interests of insured Problem: Two Masters: both insurance company and client Potential conflicts include: o A greater concern for the interests of the class reps than for the unnamed members o A prior relationship with the named defendants in the class action o A greater concern for receiving a fee than for persuing the class claims o Settlement of claims by collusion rather than a fair process where class members’ intersests are adequately represented Class action may be a proper strategy if: 1) client concerns and desired remeides are more common than conflicting and 2) claims too small to justify cost of individual litigation.8(f)         Class actions     ―Aggregate Settlements‖ of individual cases . but permit lawyer to assist both parties in preparing a settlment agreement. but not the name of the illigitmate child. Tension b/w duty of confidentiality and duty to inform—joint interest destroyed  Issue of tension between duty to protect confidences vs. 8-2) Family Members  Representing both spouses in a divorce o If both parties want to get divorced and have no disagreement a/b child custody or property division.8(f) & (g) (p. as long as clients agree and resutling settlment seems fair o Other states forbit representing both in any divorce action. duty to communicate to client relevant information o Problem 7-5: Representing the McCarthys:  Way case was decided by NJ ct: had to disclose the existince.7 and 1.

cont’d—Model Rules 1.7 for guidance on protecting the current client’s interests. 8-4. Problems 8-3.10 (p.Conflicts of Interest. lawyer should refer to Rule 1.9. 23 Former Clients—Rule 1. Mar 19: Former clients.9 Step 1: Is this a former or a present client? Which rule applies?  If a present and former client’s interest conflict.9 for how to protect former client  Duty to former clients: primary duty is to protect their confidences Problem 8-1: Keeping in Touch: Passage of time is a relevant consideration in determining if still a client  Analysis: having decided they are a former client… Mon. 1. and look to Rule 1. 459-481.7. 1. MISSED CLASS .

496): excessive fee ($50k) in DUI case unreasonable. also Telex had their own lawyer in negotiating K arrangement  In re Fordham (Mass 1996)(p.483-527. and honestly and diligently works the actual number of hours billed. o Ct. o Safe Harbor Rule: if lawyer contracts to bill by hour.1. spent 20-30 hrs cf.  Objective standard: for determining if excessive (here. Other Methods: Flat fees.8(a). Contingent fees (% based on damages collected).5. reputation. Problems 9-1. cf to 227 he spent)  Does not require fraudulent billing (here. not whether the fee is accepted as valid or acquiesced in by client. Phleger & Harrison v. 490): $1M min contingent fee for filing a petition for certiorari was reasonable.4 (p. requisite skill needed (2) Likelihood that acceptance will preclude other employment (client must know this) (3) What is customarily charged for that particular service (4) Amt involved and results obtained (5) Time limitations – imposed by client or circumstances (6) Nature and length of the professional relationship (7) Experience. Telex Corp. and ability of the lawyer (8) Whether the fee is fixed or contingent  *Reasonable fee factors are hard to apply—better to communicate with client along the way to make sure “reasonable”.5(c)  Policy: The rules treat contingency fees more strictly than hourly fees. other issues. 8. w/400 professional hours (increment: . lawyer within safe harbor. 1.His firm policy: 1900 min.4. keep records of how much time spent and what done. fee found excessive even though lawyer was not lying about amount of hours worked)  Accquiescence irrelevant: test is whether fee charged is clearly excessive.  not entered into with “open eyes”: although arrangement fully disclosed including lawyer’s need to become familiar with area of law. 527-61.TROUBLES BETWEEN LAWYER AND CLIENT 24 TROUBLES BETWEEN LAWYER AND CLIENT Wed. and Client acquiesced to fee by not strenuously objecting to bills.5(a)) (1) Time. 1. Telex received substantial value. novelty and difficulty. labor required. Model Rules 1. 1. Inexperience in criminal defense work cannot justify the extraordinarily high fee.5(c) . furthermore. 9-4. (c)-(j). Two reasons: o Temptation for lawyers to settle too quickly and too cheaply to avoid putting in extra work and move on to next client . they wanted best attorney could find and insisted on a contingent fee arrangement despite lawyer’s usually hourly based o Factors for unconscionability: did one party take advantage of another’s ignorance. Fee schedules (specified fees for particular tasts)  Fees must be REASONABLE – Rule 1. o safe harbor: amt of time to educate self on legal issue compared to good faith & diligence Mon.10th of an hour (6 min)) Legal Fees Lawyer-client fee Ks Types of agreements: Bill by the hour. Problems 9-3.15 Fees and billing. o Holding: Safe Harbor not appropriate here: amt of hours spent to educate himself and to represent client was clearly excessive despite good faith and diligence. 9-2) Billable Hours: he thinks 30 hrs per week is a good week (=1500 a year: 50 weeks) . resulting fee should be reasonable. o Issues of contract ambiguity: should the fact that ambiguity is interpreted against drafter be a factor in reasonableness. Reasoning: Although minimum fee was clearly high. exert superior bargaining power. he didn’t give estimate of total expected fee and did not seem to understand implications of hiring him. Mar 21: Fees and billing—Model Rules 1.  Contingent Fees—Rule 1. (9th Cir 1979). 7. Issue: Can a lawyer charge for extra “study time” spent on a case to learn an area of the law? o PH: Disciplinary Hearing committee held not clearly excessive because client went into relationship with “open eyes”. Ct upheld fee arrangement based on contract law as neither excessive nor unconscionable. Apr 2: p. main factor is usually norms in local legal community and similar practice  Brobeck. or disguised unfair terms in small print. to norm for DUI case.5(a): o 8 Factors in determining reasonableness (Rule 1..(e). (p.

g.. but intent is to prevent lawyer from working against interests of client to prolong/publicize the case o Does not restrict lawyers representign clients in book or movie contracts where the book or movie is not about a case handled by the lawyer (R. cmt 10) Publication rights (Rule 1. (eg. & repayment may be contingent on outcome of litigation  2) May pay ct costs and litigation expenses of an indigent client o Problem 9-3: Impoverished Client: lost job no money to pay rent or eat. 1. 1. including %s in all hypotheticals. 1.8(h) o Lawyer can not prospectively limit liability for malpractice.TROUBLES BETWEEN LAWYER AND CLIENT   25     o Financial stake in client’s recovery incentives unethical tactis to maximize recovery Policy: Arguments in favor of contingent fee arangements: o Allow access to justice for non-wealthy o Aligns interests of lawyer and client Policy: Why are they not allowed in divorce or criminal cases? o In divorce lawyers traditionally obliged to encourage couples to reconcile o Criminal context: conflict of interest (e. cmt 6 Buying legal claims (Rule 1. may charge contingent fee to collect past due alimony or child support.5.8     Fee disputes   . trial or appeal) and whether expenses are deducted first or not  Must include other expenses client liable for even if don’t win  When ends. unless client has independent legal representation in making that agreement (Rule.5(a)).5(d) o But after divorce has been granted. If settlement. can’t give to client— rent/groceries/ phone. 1.8. reasoning: payment secures lawyers availability but does not depend on performance of any particular task.8(d))—may make a deal after case is over.8. o But look to other laws: Some j/ds impose a ceiling on % that may be charged o Policy: are high fees fair?: justified because compensates for the lawyers risk and helps cross-subsidy to maintain viable practice (Norm is 1/3) Prohibited from charging contingent fees in criminal and domestic relations cases Rule 1. and lawyer withdraws portions of the advance as they are earned o Unearned portion of advance must be returned to client (Rule 1.8(h)(1))  So impractical to include a waiver of malpractice liabilit in K for legal services.5(c): (more specific disclosure requirements): o Must be in writing  Signed by client  State method by which fee is to be determined.534-40 likely on MPRE) Limiting Malpractice Liability—Rule 1. but must be reasonable (1. client might pursue a frivolous suit to obtain offered financial support (R. can pay ct costs or expenses of litigation (cell phone or clothes for court may qualify as ct expense)  Policy: if lawyer offers to pay client’s living expenses while suit is going on. thus lawyer may have to forgo other obligations to maintain availability (p. if lawyer’s fee contingent on acquittal but client offered a better plea deal arrangement). Restrictions re: fees and expenses—Rule 1.8(i)): lawyer may not acquire proprietary interest in the subject matter of litigation the lawyer is conducting for a client Financial assistance to client (Rule 1. cmt 9) Advance payment of fees & nonrefundable retainer fees—Advance is deposited in lawyer’s client trust account.16(d): but note: you don’t have to tell client that)  Non-refundable retainers—goes against public policy and client’s rt to fire atty o Lump-Sum/ Classic Retainer: earned when it is received.8(e)) o Purpose: Prevent lawyers from having too big a stake in the outcome of litigation o Exceptions:  1) May advance court costs and expenses of litigation. also vulnerable clients may accept excessive fee agreements (agree to higher fee thinking outcome unlikely) Rule 1. give another statement in writing explaing charges and how calculated Must you deduct legal expenses before calculating lawyer’s fee? Doesn’t matter a long as you disclose how you intend to calculate the fee No limit on max %.

(Rule 1.5(e): may divide fees between lawyers not in the same firm only if: o (1) division is in proprotion to the services performed by each lawyer or each lawyer assumes joint responsibility. and agreement is confirmed.16(b) lists reasons why lawyer would be justified in withdrawing) Rule 1.TROUBLES BETWEEN LAWYER AND CLIENT o 26     If a lawyer and client want to settle a malpractice claim client does not have to be seperately represented as long as:  (i) client is advised in writing of that it's a good idea to seek advice from another lawyer before making such a settlement. Lawyer Lawyer withdraws/fired before matter is completed: issue in contingent fee arrangements. but only if doing so will not unreasonably harm client (ch5. What do you do? Try to get mercy of court. o (2) client agrees to arrangement. (2) 3rd person does not direct lawyers decsisions or otherwise interfere. for malpractice of other partners or lawyer-employees o Limited Liability Partnerships (LLP): one partner is liable for his own conduct and that of others he supervises but is not vicariously liable for conduct of his partners  Rule 1. Rst §43. o duty of superv.18: LLPs are allowed as long as each partner remains personally liable to the client for his own conduct Fee Arbitration: o Bar Assoc has established committees to intermediate over fee disputes (Rule 1. cmt c) o If regularly engage in consumer debt collection activities. common law or by contract)  If lien acquired by contract.8(i))  State law authorizes liens (by statute. if process is voluntarily. Rule 5.8(f) Dividing Fees—Rule 1. compensation on a quantum meruit basis (equitable assessment of value of work done). joint and severally.  2) written encouragement and chance to seek advice from independ. urged to “conscientiously consider submitting to it”) o Binding Arbitration Clauses: ABA Ethics Committee says they are okay as long as: (1) Client is carefully advised of the advantages and disadvantages.5: cmt says if mandatory. R 1. how do you protect yourself? Partnership Organization for limited liability o General Partnership (GP): each partner is vicariously liable. responsible for their work but not case as a whole Can’t share fees with non-lawyers. bc both referring and receiving attys responsib for each others violations o If referring lawyer plans to do some work on the case and divide fee proportion. and (3) can’t share confidences w/ 3 rd person.8(h)(2)) o Hypo: what if you miss a ct deadline and client has good claim for malpractice. must comply. then constitutes a business transaction with a client and is governed by Rule 1.4(a) o Can pay salaries or bonuses but can’t routinely divide profits o Purpose to maintain a lawyers indepndent judgment from being influenced by nonlawyers o “Runners” to find accident victims?: No except can pay referral service for making info available about their practice Fees paid by Third Party: only if (1) client consents after advised.8(a):  1) Terms must be fair and clearly explained in writing. if fired or justified in withdrawing.  (ii) and is given a reasonable opportunity to consult another lawyer (Rule 1. including the share each lawyer will receive. but can’t charge for extra time spent on fixing mistake  If can’ t get it fixed and client has good claim (say. because client’s now barred by statute of limitations). and (3) Clause does not otherwise insulate lawyer from liabilty  Ex. (2) Gives incormed consent.5(e)     . some discovery rights and right to appeal (some j/d require independent counsel) Collection of Fees: may withold documents prepared by lawyer for which payment has not been received. in writing  Writing Req: written confirmation (don’t necessarily need client signed writing) o (3) total fee is reasonable Referral Fees: referring lawyer must take on “financial and ethical responsibility for the representation as if the lawyers were associated in a partnership” (cmt 7). client needs to be told that waiving right to a jury trial. subject to the Fair Debt Collection Practices Act: cant make false or misleading representations or engage in abusive and unfair practices (subject to civil liability) (State consumer statutes may also apply) o May obtain lien on client property (one of the exceptions in Rule 1.

563-91. not prohibited from receiving sums for services in settling estates.11-1. must provide record of amt received and how much paid to whom Disputes about money or property in lawyer’s possession (1. BUT lawyer must advise client according to Rule 1.15(a)  Acount maintained in state where lawyer’s office is (or elsewhere w/ client consent)  Property other than money must be “appropriately safeguarded”  “Complete records” for period specified in state rules o Lawyer can’t deposit own funds o Commingling is most grave and grounds for disbarment. distribute undisputed portions of settlement and keep disputed portion in client trust Lawyer’s responsibility to client’s creditors (1.15)  27        Client trust accounts: bank acct in which lawyer keeps funds that belong to various clients o Must keep money for clients separate from lawyer’s own property: 1. judges.15(d))  Must notify client and promptly pay  Upon clients request (or party with an interest in fund).7 a/b what happens when lawyer acts as executor Wed. [NO READ] Chart on chalkboard: Category –––– Rule ––––– Prohibition/Limit –––––– Way Out? –––––––Comment There is a requirement of requsal if you are an elected judge in the extreme circumstances of facing a party that financially contributes to your reelection Problem of Libya: Mitigating factors: He was trying to negotiate a settlment with panam victims. Prob 10-1-2. Rules 1. No confidential information at issue .TROUBLES BETWEEN LAWYER AND CLIENT Client Property: Lawyer as custodian of client property & docs (Rule 1.12 Conflicts issues for govt lawyers. lawyer might have some obligation to the 3rd party BUT lawyer is not a collection agency for client’s creditors Administering estates and trusts—lawyer may accept appt as executor of a client’s estate.15 cmt) If 3rd party has lawful claim against funds that are in the lawyer’s custody. can be disciplined even if done unintentionally.15(e)) If dispute. Apr 4: p. no funds lost and even if mental capacity comprimised by illness Responsibility for client property o Prompt delivery of funds or property (1.

modification.1: bar disciplinary action o FRCP 11: punished by the judge in civil action. 593-623. “not frivolous. or reversal of existing law  Sanctions o Rule 3.1 and FRCP 11  Purposes of both: avoid frivolous cases.” Includes a good faith argument for an extension. o factual assertions . Laywer and nonprofit that employed him subject to fees and other sanctions of more than $1M. Sanctions bankrupted non-profit. modification. Duties to Courts Focus: Lawyer’s duties to judges and adversaries in proceedings to resolve disputes. multiple avenues to address ethical concern  Frivolous (3.1: no safe harbor provision. higher burden of proof than for sanctions  Plaintiff must prove:  She won previous suit in which she was a defendant . two US journalists seriously injured when a bomb went off in Nicaragua.must be “warranted by existing law or by a nonfrivolous arg for the extension. (ch11) Being a good person in an adversary system    “Hired gun” approach: pursue every possible tactic on behalf of their clients “Officers of the court” approach: believe duties to ct are = duties to clients (public-spirited) how does your approach change depending on the size of the “legal community”? o is your reputation a luxory you can afford or does it short change representation of your client? Best to have a conversation with your client up front about how you practice law Rule 1. 11-2. Apr 9: L&S: Chapter 11. can result in nonmonetary directives or monetary sanctions against a lawyer or a party  Safe harbor o FRCP 11: includes safe harbor—lawyer may withdraw allegedly frivolous pleading w/in 21 days after opposing counsel’s motion and suffer no sanctions o Rule 3. 11-3. modification or reversal of existing law.  FRCP 11(b) is similar but more detailed: o legal theory . if specifically so identified.LAWYERS’ DUTY TO COURTS 28 LAWYERS’ DUTY TO COURTS Mon. Model Rules 3. o Liability for tort of malicious prosecution: if sued on basis of virtual no evidence defendant may sue plaintiff or his lawyer. pp.1.must “have evidentary support or.1  Claims must have basis in law and fact. 3. be likely to after a reasonable opportunity for further investigation or discovery”. Lawyer who brought suit based on hearsay evidence that CIA was responsible couldn’t substantiate through discovery. even if brings lawsuit in good faith and later finds out its groundless o attorneys’ fees: federal statute says if lawyer “multiplies the proceedings unreasonably and vexatiously” pay other party’s atty fees  ex.3: cmt about lawyer not being required to zealously press for every advantage Investigation before filing a complaint Meritorious claims and contentions: Rule 3.3 Obligations in pleadings and evidence. or reversal of existing law or the establishment of new law”.1) o Not frivolous if lawyer informs themselves a/b the facts of their clients’ cases and the applicable law and determine that they can make good faith args in support of their clients’ positions  Cmt 2: facts need not be fully substantiated before suit is filed  Recognizes it’s an ongoing process and more info will come out in discovery  Ask what you can to confirm what client tells you  Apply reasonable. Differences b/w Rule 3. objective judgment o Frivolous if atty unable to make good faith arg on merits of action taken or support action by good faith arg for extension. Problems 11-1. but a bar counsel would be unlikely to file a charge against a lawyer for filing a frivolous case or defense that was withdrawn  Penalties o FRCP 11: sanctions. provide competent representation.

Tech School: lawyer sanctioned for filing suit based on what client told him and of copies of emails the client produced that turned out to be forgeries. or his liberty. and She was injured despite having won prior suit o “special injury”: to reputation. lawyer sanctioned for filing without having checked with other employees first o Footman v.lawyer sanctioned for “serious ethical violations” because claimed plaintiff had multiple sclerosis and had entered restaurant’s restroom. if lawyer had a “reasonable belief” that facts could be established and that under those facts. Bill lowered his trousers and underwear and asked her to kiss his erect penis. Cheung . not enough that suit was costly or time consuming (Mich) Defense: if can prove there was “probable cause” for previous suit.    bars false testimony by lawyers (not witnesses or clients) if a lawyer discovers that she has made a false statement. lawyer should have “subjected his client to rigorous questioning” and “insisted on seeing the original documents. Vigo School . client had a valid claim  wide interpretations of whats needed under FRCP 11 and very fact specific cases: o Boyer v. What is false statement of fact or law? (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. his person. Paula fled o Issue: What must you do to corroborate Jones's allegations before suing Bill?  check her statement about position and see whether it has been abolished  depose security guard  find out whether her former superior was indeed "good friend" and appointee of Bill  check to see if governor have indeed stayed in the room that Paula claims tort of sexual harassment have occurred  ask for paper  Subject client to “rigorous questioning”(Jiminez): ask why she waited so long  why she was transferred would be the most difficult thing to corroborate  Truth and falisty in litigation —Rule 3.LAWYERS’ DUTY TO COURTS    29  Prior suit brought without probable cause Prior suit brought with malice.3 Rule 3.604) o Facts: Paula Jones comes to you with a story that she had been sexually harassed by the governor in his suite.3—Candor to the Tribunals (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. Employer actually got info from other employees. that is. May be more justifiable if SOL about to expire  here.  Ct said its hard to say whether a lawyer could ever rely solely on his client’s version of the facts as a basis for filing suit. o Jimenez v.not sanctioned because “scintilla of evidence.” while not enough to survive summary judgement. she must correct it.” Problem 11-1: Your visit from Paula Jones (p. KRS Computer – ex-employee claimed employer electronically eavesdropped. She ended up in his suite pursuant to the note from body guard and went there thinking that she is going to get promoted (in her job). The following occurred in the hotel suit  Governor said that he was friends with Paula's superior  Governor said to Paula "I love your curves"  Governor put his hand on her leg and attempted to kiss her  As Paula walked away. or . when in fact he had diabetes and had not entered stall o Parker v. was sufficient to avoid FRCP 11 sanctions.

4(c) Misconduct – bans on “deceit” and “misrepresentation” applies to all conduct by lawyers. then it cannot do a good job (3) offer evidence that the lawyer knows to be false. if it is going to be enough  if not enough. the lawyer shall take reasonable remedial measures. and other testimony related adjudication (cmt 1) if you find out later. then may need to withdraw. has offered material evidence and the lawyer comes to know of its falsity.3(a)(1) ban on false statements . If court is not aware. including. e. and if he won't the lawyer must disclose the lie applies to trial testimony. if necessary.6. the lawyer’s client. and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 confidentiality rules)  Which Truth Telling Rule Applies When? Potential Rule Overlap:  Rule 3.e.g. if you learn 3 years after the thing is over. lawyer may refuse to offer the evidence (unless case is criminal. disclosure to the tribunal. depositions. Facts are subject to adversary system. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage.  Reasonably Believe (cmt 8): you have the discretion of deciding (i.3  Rule 4. If a lawyer. whether or not the facts are adverse. before you disallow the defendant to testify) o if lawyer reasonably believes. Lawyer must affirmatively disclose directly adverse law if opponent doesn’t meaning of direct adversity: something controlling in your jurisdiction Comment 4: law and facts are different. disclosure to the tribunal. other than the testimony of a defendant in a criminal matter. Law is different . destroying evidence (cmt 12) see Comment 10 for remedial measures (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding.g. need to do remedial measures (disclosure to the tribunal).   lawyer has a duty to prevent not only a false testimony but also "criminal / fraudulent conduct".1  Rule 8.LAWYERS’ DUTY TO COURTS    30 Requires more than avoiding falsehood. then tell the court that the information was false  exception to the confidentiality 1.court should be determining the case based on all relevant law. the lawyer who learns of false testimony must take steps to correct it cmt 13: conclusion of proceeding: when final judgment has been affirmed on appeal or time for review has passed. May be broader than the Rule 3. if only one side makes presentation. but not certain of falsehood of evidence. or a witness called by the lawyer. (Rule 3.     a lawyer who knows that his client or other witness is going to lie to the court may not allow the witness to do so if the witness does lie. trying to bribe or influence jurors or intimidate a witness. must disclose adverse material facts known to the lawyer and that the lawyer reasonably believes are necessary to an infomred decision (cmt 14)  no adversary process therefore must tell adverse story Remedial Measures (see Comment 10)  first talk to your client and advise him on obligations as the attorney  try to get the client to do it herself  if client refuses. is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures. lawyer must allow defendant to testify if the lawyer reasonably believes but is not certain that the evidence is false. including. that the lawyer reasonably believes is false. the lawyer must call on the witness to correct the lie.6 rules. a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision. if necessary. have to know if it false. see cmt 10 A lawyer may refuse to offer evidence.    unless the case have been completed (that includes appeals). then must allow client to testify) o In a criminal case. do not need to go forth with the disclosure) the duty to correct the record overrides the duty of confidentiality (d) In an ex parte proceeding.3 trumps 1. (e.

Rule 3.3(a)(2) Lawyer Lawyer knows of directly adverse controlling legal authority that has not been disclosed by opposing counsel Lawyer Lawyer knows of facts adverse to client's interest. e. Scene 1 Can lawyers protect themselves and their clients by deliberately not knowing all the facts?  Up to a point.4(c): lawyer can’t engage in dishonesty. Rule 3. deceit.. duty not to collaborate in a client's crime  1. Rule 3.3(b) / (c) / Comment 10 Client or witness Witness has misled the court by making statements that are literally true but deceptive Lawyer may have duty to counsel client and correct the record. 8. in criminal case.4(c) Lawyer must bring it to court's attention and distinguish it or explain why it is not authoritative.3(b).3(a)(3) Client or witness Lawyer knows that her client or other witness has testified falsely during direct or cross-examination Lawyer must counsel client to correct the record. or may allow it. duty to correct a client's testimony that the lawyer knows to have been false  . Rule 3. witness is not criminal defendant If lawyer “reasonably believes” it is false. Rule 3. the lawyer must allow it even if the lawyer reasonably believes it is false.2(d).g. criminal defense lawyers not asking if client committed crime  1.LAWYERS’ DUTY TO COURTS Who Might Lie/ Deceive Lawyer Lawyer is considering making a false statement of fact or law to a judge Client Must not do it. Rules 3. Rule 3. duty to report the misconduct of corporate officials to a client corporation  3. Rule 3. and 2) prejudice (here concurrence by Blackmun said just decide on prejudice prong) A lawyer’s “knowledge” of a client’s intent to give false testimony:  RULE: only if the lawyer actually knows that the witness is going to testify falsely must the lawyer refrain from offerint the testimony.4 Situation (Court / Admin Hearing / Discovery) Lawyer's Obligations / Applicable Rule 31 Lawyer knows that her client is considering testifying falsely in Lawyer must counsel the client and refrain from court or in a deposition asking client questions that would elicit the false testimony.3(b).13. lawyer may refuse to offer the testimony. must present evidence unless know its false  Problem 11-2: Flight from Sudan.3(a)(3) Civil client or witness Lawyer suspects but does not know that planned testimony may be false. consider withdrawing.3(a)(3) Criminal Defendant Lawyer suspects but does not know that planned testimony may be false. fraud. witness is a criminal defendant If defendant insists on testifying. or misrepresentation o Strickland standard for ineffective counsel in violation of 6th am rt: 1) deficient performance. 8. correct record if necessary to undo the effect of the fase evidence.3(d) A lawyer’s duties if a client or witness intends to give false testimony When the lawyer believes that a criminal defendant intends to lie on the stand:  Nix v. not requested in discovery or required to be disclosed by a court rule No need to disclose unless the proceeding is ex parte. Whiteside: issue: whether 6th amend right of a crim D to assistance of counsel is violated when an atty refuses to cooperate w/D in presenting perjured testimony at his trial o Model Code & Model Rules require disclosure by counsel of client perjury o 8.3(a)(1).

Model Rules 3. pp. A statement is “false or misleading” if:  material misrepresentation of fact or law is prohibited  omits a fact necessary to make the statement considered as a whole not materially misleading  Problem 11-3: Flight from Sudan.4.4(c): deceit is not permitted o Rule 7. 643-77. and Massariah is not your client (therefore no) o if don't reveal and truth comes out . Model Rules 3.4(a) . 3. State o Do lawyers who have possession of documentary evidence have to be concerned about criminal statutes as well as ethical rules? — Yes o Do all j/d require lawyers to contact prosecutors about physical evidence in their possession? — No Mon. Olwell  In re Ryder  People v.4(a): MRPC restrict lawyers from hiding evidence of criminal misconduct  Prohibits “unlawful” concealment or destruction of material having “potentially evidentiary value.if you don't tell the truth you can be backed into the corner.3. Obligations in pleadings and evidence. may be disbarred or convicted of crime of subornation of perjury  Ethics require more exacting degree of truth than perjury (but very little caselaw on issue) o Rule 3. so watch out! Wed.1: bars lawyers from making false / misleading statements about themselves or their services (related to advertising). Apr 11: L&S: Chapter 11. Concealment of evidence Rule 3. Apr 16: L&S: Chapter 11.4: Fairness to Opposing Party and Counsel Concealment of Physical Evidence and Documents  Duties of criminal defense lawyers with respect to evidence of crimes o What should a lawyer do when a criminal defendant hands the lawyer a weapon or other tangible evidence of a crime? – Rule 3.9 Obligations in pleadings and evidence.4(a) Rule 3.literal truth o ethical rules are not clear.argue that it is not dishonesty that it is not particularly important o overall lesson . Scene 2 o Question: Should you disclose / take steps to disclose that fact? o under Bronston standard no . Problem 11-8. 11-5 MISSED Truth and Falsity in Litigation (cont…)  Variations in State Rules on Candor to tribunals  False impressions created by lawyers during litigation o How Simpson Lawyers Bamboozled a Jury o Problem 11-4: the Drug Test o Problem 11-5: The Body Double  Lawyers’ duties of truthfulness in preparing witnesses to testify o What do the ethics rules say about coaching? o Rule 3. pp.4(a)  State v. Meredith o Are documents treated differently from other physical evidence? — No  Morrell v. Problems 11-4.3-3.” Material includes both physical evidence and documents o Look to state law to determine if concealment is “unlawful”: If state obstruction of justice or evidence of tampering statutes apply  triggers duty under Rule 3. 11-9.LAWYERS’ DUTY TO COURTS 32 Partial Truths: A lawyer’s duties if a client intends to mislead the court without lying:  A partial truth is a statement that may literally be true but that deceives another person by omitting relevant information or twisting information in a way that distorts it o Ethics rules prohibit false statements but permit some less direct forms of deception  Perjury o Bronston Standard (US Sct reversed)  non-responsive answers that are misleading do not constitute perjury  only deliberately false statements may be prosecuted o if lawyer knowingly puts on perjured testimony.3(b): lawyers are required to correct fraudulent conduct by their witnesses o Rule 8. 624-43.

Responding to Discovery Request Rule 3.4(d): no frivolous discovery requests / and must make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. and defense interprets discovery requests narrowly  Overdiscovery: discovery “by avalanche”  Overproduction: the “warehouse” tactic or “hiroshima” defense  *Problem 11-8: Damaging Docs: discovery request was worded as specific product name.  When does obligation not to coneal begin? o If lawyer has no knowledge that a violation of the law has been committed & no criminal investigation is foreseeable. Issue: interpreted request narrowly to hide the “smoking gun” o Supervisor’s Recommendation: "interpreting discovery request narrowly and only supplying what was asked for is standard practice"  not produce 2 documents  discovery defines product to mean only Somophyllin.3(a)(2): prohibits a lawyer from “knowingly” failing to disclose adverse authority in controlling jurisdiction if other party omits (but not adverse facts). lawyer’s duty not to conceal tangible evid takes effect as soon as the lawyer believes that an official investigation is about to be instituted.000 documents on Somophyllin  compose a cover letter  can't be read to suggest that the documents it covers include theophylline  don’t reveal that we have more material so the second request will follow o [handout re real case]: in real life.4(a) bans only “unlawful” concealment: some states have dif standard for civil cases: allow lawyers to keep possession of evidence not pertinent to criminal investigations o Why dif stanard? b/c in a civil case. not chemical. tampering evidence. lawyer may have duty under procedure rules to turn over some info to opposing party.LAWYERS’ DUTY TO COURTS  33 Enforcing 3.000 documents subject to a general objection that requests was overly broad and unduly burdensome…lower ct denied sanctions. FRCP 26(a)(1)) o duty to preserve in some states business records for specified periods even if no dispute on horizon. not theophylline  send 60.  Adverse legal authority Rule 3.  Purpose: cases should be decided w /in the framework of the whole body of law  Exceptions: o If adverse law is from another j/d o If not “directly adverse” (no req to disclose dicta & holdings applicable only by analogy) o Persuasive authority (treatises) . even if no preservation statute applies. even if no discovery request (e. accessory to a crime. Generally. and doctor appealed. possession of such docs are not being used to cover up a crime and discovery can be used  When does obligation begin? Governed by civil discovery rules (FRCP 26) and MRPC (Rule 3. the law firm turned over all 60. if lawyer has some reason to believe wrongdoing has occurred may have a duty to preserve evidence.g. not until investigation actually starts o It may be difficult under crim law to define the point at which legitimate destruction becomes unlawful obstruction of justice.4). supreme court reversed and imposed sanctions o Point: don’t be “too cute” about how narrowly you interpret discovery requests What is potential evidentiary value? Hard to tell sometimes Bottom line: never assume docs that are/could be pertinent to a civil suit may be concealed or destroyed. a lawyer has no duty to turn evidence over to a prosecutor o In some states. Other states. o Discovery abuse punishable by court sanctions or disciplinary action o Problems: cost of litigation increases when plaintiff’s seek discovery of more documents than needed. obstruction of justice statutes apply only when an official proceeding is ongoing or imminent Civil cases  Rule 3.4(a) is difficult—violations are tough to detect and lawyer can cite atty-client or work product privileges Criminal cases  Concealing evidence or assisting/counseling other to do so may be a crime—obstructing an investigation. o As soon as civil case commences.

6(b) Permitted list: can state…  1) the claim. but cant discuse substance of cases o Campain contributions Rule 3. offense or defense involved.3. prospective juror or other official by means prohibited by law Ex parte communication with judges: Rule 3.3(d) may not apply (e.4(e) p. rule 3. don’t put out a “claim of innocence”) o Point Exceptions in 3. request for a temporary restraining order)  Purpose: allow judge to accord the absent party just consideration (3. lawyer attempting to introduce a letter into evidence may testify she received it from her client’s brother).5(a): can’t try to influence a judge. lawyers may not testify as witnesses in cases they are handling. …. whether or not the facts are adverse” (e.LAWYERS’ DUTY TO COURTS o 34 If opponent has not yet done so but has the right to file another brief. orally or in writing.. cmt 3 Other Restricitons: see Rule 3. unless the lawyers for all parties are privy to the communication o Can call judges’ secretaries or clerks to make minor.672 Lawyers’ duties in Nonadjudicative Proceedings—Rule 3.g. The Gentile Case: sup ct held Nevada’s rule was void for vagueness: allowing lawyer to state without “elaboration” the “general nature” of case o 3.3(d). and identity of persons  2) info in public record  3) that an investigation of a matter is in progress  4) scheduling or result of any step in litigation  5) a request for assistance in obtaining evidence  6) a warning of danger  7) in criminal case.662): prohibits public comments that will have a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter” (see cmt 5 for list of likely prejudicial topics) o Ex.6(a) Trial Publicity (p.g. o 3.6(c): atty may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment Problem 11-9 (p. unless 1) testimony relates to an uncontested issue (e.3(d): in ex parte (one-sided) proceedings. or o 3) disqualification of lawyer would work substantial hardship on the client What about comments appealing to racial or other prejudice of jurors? Prohibited by Rule 8. but not required to reveal info protected by the attorney-client and the work product doctrine Improper influences on judges and juries   3.5(b) says can’t communicate with a judge about a pending case.7: Advocate-witness rule: gen.9 o     . social security disability hearing)  Trumps confidentiality rules.6(b) should be narrowly construed Impeachment of Truthful Witness (Subin Article)    Statements by Lawyers during Jury Trials  Rule 3.664): Letter to the Editor: sanctioned for outright assertion of innoncence and lie detector test (which is inadmissible as evidence) going to the facts of the case and cross the line (don’t put out information about an ongoing case that is inadmissible evidence. laywer may not (yet) have a duty to disclose (probably better to do so to make sure case doesn’t get overturned later + improves credibility to judge) Ex parte Disclosures: Adverse material facts Rule 3. routine procedural inquiries without having to tell the other side. must disclose “all material facts known to the lawyer that will enable the tribunal to make an informed decision.g. o 2) relates to nature and value of legal services... cmt 14) o Suggests if matter is not truly adversarial.

688 .1-4.3 applies only to proceedings before tribunals. Apr 23: L&S: Chapter 12: pp. but did not let lawyers participate personally in the deception  Issue is still unsettled.4(c): prohibition from engaging in conduct involving “deceit or misrepresent. Tate.1 – 4. on p.  3.  But duty to disclose is subordinate to duty under R.4 apply when lawyers communicate w/others on behalf of clients outside of “proceedings” Deception of third persons (CO has a Rule 4.3(a)(1): both instruct not to lie  3. could get disciplined for sitting by silently while a client perpetuates a fraud. Ct held that by misrepresenting his identity and purpose.” statements estimating price/value.1(a). 12-2. divorce case where stock price mistakenly calculated by wife’s lawyer and husband’s lawyer didn't say anthing) o Class Notes: “negotiation game” Slightly suspect but necessary pt of business. but see bar opinion endorsing “dissemblance” if investigating civil rights or IP violations.3 prohibits making any false stmts to tribunals.4 Communication with lawyers.6 to protect confidential info Problem 12-1: Emergency Food Stamps: false stmt of material fact to third person (some states have modified rule to allow atties to misrepresent facts during an investigation) False statements by clients? – No duty to correct the record when a client is lying in her prescence to someone other than a court.LAWYERS’ DUTY TO COURTS 35 DUTY TO ADVERSARIES. 3rd parties. in investigating a possible fraud case falsely stated that he was a doctor. o But.4(c) does not apply to misrepresentation solely as to identity or purpose and solely for evidence-gathering purposes  BUT The Gatti Case (Oregon): lawyer represented chiropracter. ICS (NJ): (Beatles Stamps IP case): ct held Rule 8. or a party’s intentions are not considered statements of material fact (4.” has no qualifier excusing false stmts that are not material (Pautler) o “Material” defined as something that would have changed the behavior of the receipient of the info (defined in Gatti.4(a) lawyer can’t violate rules or “do so through acts of another”  SO. represented persons.5: threatening prosecution Matrix of Permissible Deceit Type of Deception Purpose Motive/Intent Atty’s Role Ok? Lie fib silence Deception of third persons  Rule 4. o Ct did not make an exception for prosecutor-directed criminal investigations. Model Rules 4. he violated his duty to the public to maintain personal integrity.1(b) limited duty to make affirmative disclosures to others when necessary to avoid assiting a crim or fraudulent act by a client. if lawyers presence during an event at which the client lies is “use” of the lawyer’s services to commit a fraud (thus permitting disclosure under R 1. 4.1 applies whenever a lawyer is representing a client. 679-711.1 prohibits only “material” false statemetns of fact or law to 3rd persons  But 8. Problems 12-1.1(a): duty to avoid material false statements of fact or law o    similar to Rule 3. Communications w/adversaries and third parties Rules 4. inability to enforce and slipperly slope issues Lawyers use of “testers” in fact investigations  8.6(b)) Negotiations: Under “generally accepted conventions. cmt 2) o But negotiators cannot take advantage of incorrect assumpstions or mistakes of the other side when they know such mistakes are being made (Stare v. if lawyer could not ethically do work himself. 1.5)  Rule 4. 4. cannot enlist others to do it  Apple Corp v. 3RD PARTIES Mon. not in book) o Obligations of disclosure to 3rd persons: 4. but afterwards Statute passed allowing covert law enforcement.

Rule 8. even though D privately confessed he raped her? Stolen Documents as evidence—Problem 12-3: The Break In Rule 1. A lawyer shall not counsel or assist another person to do any such act Rule 4. delay. trustworthiness or fitness as a L in other respects. . knowingly assist or induce another to do so.3: lawyer shall not state or imply that lawyer is disinterested  When lawyers knows that unrepresented person misunderstands lawyer’s role. meaning or application of the law Rule 3.4(a): Respect for Rights of 3rd Persons: lawyer may not use means that have “no substantial purpose other than to embarrass. concerns about possible overreaching  Rule 4. or assist a client. 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. atty must end conversation upon learning that person has atty o Only applies to communications w/persons known to be represented by a lawyer in “the matter. (b) commit a criminal act that reflects adversely on the L’s honesty. or burden a third person” 4. or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.3—Restrictions on contact with unrepresented persons  Rule 4. or burden a third person.LAWYERS’ DUTY TO COURTS 36 Receipt of inadvertently transmitted info.2—Restrictions on contacts w/ represented persons  Some restrictions on communication b/w lawyers and adverse persons  Purpose: prevent lawyers from making “end runs” around other lawyers to get info from the other lawyers’ clients. including metadata  Rule 4. deceit or misrepresentation. or do so through the acts of another. (d) engage in conduct that is prejudicial to the administration of justice.4(b): you are allowed to use the info just have to promptly let the other side know (must notify sender if know or reasonably should know that sent inadvertently)  May you “mine” for metadata? (courts split): o ABA and Maryland: no duty to refrain from viewing it or notifying sender o Alabama and NY: can’t attempt to view metadata Restrictions on contacts with represented & unrepresented persons Rule 4. scope. 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 lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. shop around o If atty starts convo w/another person erroneously believing that person is unrepresented.4(a) Fairness To Opposing Party And Counsel A lawyer shall not unlawfully obstruct another party' s access to evidence or unlawfully alter. lawyer shall make reasonable efforts to correct the misunderstanding (affirmative duty)  Lawyer shall not give legal advice to unrepresented person if lawyer knows there’s a reasonable possibility of being in conflict w/interests of client Impeachment of a truthful witness    Rule 4. make sure P meets burden Subin article—Would it be proper for lawyer to cross-examine complainant to imply that she consented to sex. destroy or conceal a document or other material having potential evidentiary value. fraud. (c) engage in conduct involving dishonesty. (e) state or imply an ability to influence improperly a govt agency or official or to achieve results by means that violate the Rules or other law.” Lawyer may talk w/person about other subjects if they involve a different “matter.4 Respect For Rights Of Third Persons (a) In representing a client. delay. in conduct that the lawyer knows is criminal or fraudulent.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules. a lawyer shall not use means that have no substantial purpose other than to embarrass.” Rule 4.4: arguable that cross-examining as if to impeach has a purpose.2: Communication with Person represented by Counsel  Exceptions: o Represented client can contact atty to obtain 2nd opinion.2(d) Scope Of Representation And Allocation Of Authority Between Client And Lawyer A lawyer shall not counsel a client to engage.

like ABA: higher than probable cause std. a little more than a “reasonable suspicion”: (rule just imports existing legal standard into ethics code) o Other rules.2: state may not have any communication w/ represented criminal D unless: (1) state first obtains lawyer’s consent. that there are good factual and legal grounds for it o Some argue that “probable cause” std is pretty low.1 (prohibiting materially false statements) and Rule 4. admissible evid Must hand over all exculpatory evidence to defense even if not requested Ex: Duke lacrosse case—state prosecutor was disbarred for misconduct in criminal prosecution   Undercover investigations    Required investigations by prosecutors before charges are filed—Rule 3. 12-4 Duties of Prosecutor  A Prosecutor is a “Minister of justice” – Rule 3. (2) communication is “authorized by law”.2 suggests ok. Model Rule 3. A lot depends on whether the court will admit the evidence Wed.8(d)    .2 prohibits contact. Rule 4. but some courts have found that preindictment contact ok McDade Amendment: subjects lawyers working for fed govt to all applicable state ethics rules. prejudicial conduct. without lawyers consent.1 and FRCP 11 Rule 3. Apr 25: L&S: Chapter 12: pp. use docs in the best way for your client  if litigation: these documents may not be admissible  seems like the best thing to do is try to negotiate o if fathers attorney. he arguable violates Rule 4.8. 711-30.8 Prosecutors’ duties. by keeping them it is not impossible for other side to obtain them What should you do? o Issue that if you turn them in it may implicate your client in theft  your client wants custody. lawyer’s personal moral and ethical duty 3.8   Concealment of exculpatory evidence: Rule 3.2 Problem 12-4: Prosecutor’s Masquerade o Rule 4. you're still going to court  bad situation for mom's attorney The answer is not clear.8(a): prosecutor may not file a criminal case w/o a belief formed after due investigation.3: if talking to someone unrepresented and they misconstrue o Issues of defense losing faith in system vs. Problems 12-3.LAWYERS’ DUTY TO COURTS    37   What rules (if any) require you to return the document / notify about your possession? o A cmt in the rule says something about Would it violate any rules to use these documents in negotiating with Ron's lawyer about custody / push for better financial settlement? What do you do with the documents? o Problems? stolen property is a crime.” just need fair possibility of guilt.1 in application to criminal investigations o 4. but 4. comment 1 o Prosecutors have extra duties b/c of extra powers o Why? many have political ambitions or want to improve reputation through high profile cases—high conviction rate=fast advancement Worst offenses: concealing evid suggesting innocence & presenting evid known to be false if a prosecutor is directing an investigation. what do you do as a neutral partisan  say sorry.8(a) is prosecutor’s analogue = to Rule 3.2. don’t need “more likely than not.2 (prohibiting contact with represented persons) o Little case law interpreting 4. once a charge is filed o Postarraignment interviews have been found a violation of 4. you fight hard. or (3) stat obtains a court order authorizing the communication Does the “authorized by law” exception cover communications occuring prior to filing of charges? Comment 5. may implicate a duty to turn them over o Keeping docs in your office?  not representing criminal defendant  no ongoing investigation  you have copies. not just 4.

May 3: Final Exam . and part is that you can logically thnk about the content Ethics as distinguished from legal ethics is about goals you set for yourself to develop habits of behavior that it beccomes second nature for you to do this Secret: combination of the systematic with the perception is the constant area of where you need to practice (lawyers oath is far more instructive than all the rules of professional conduct) Being a lawyer is an invitation to lead a moral life Death of Jury Trial: 2% of civil cases are tried by jury Jury trial (vs. Failures: Ad hominem attacks and appeals to pity usually lose Two Elements of Practicing Law (handout) I. by themselves they are not particularly aspirational compared to ethics which are Themes:  Inscription noted in syllabus  Cynicism  Thomas Moore’s oath Thr. S. Personification of the social values of our society LAST CLASS WRAP UP Compliance with rules like traffic rules. not quantitative…point: did the person learn something. who was agent of client Need to understand dynamics of where you are Part of your character is that you give a damn. i. Aesthetic: qualitative.e.LAWYERS’ DUTY TO COURTS Wed. lets public make a value judgmeent rather than a bottom line economic decision..Aristotle Three fundamental elements of rehetoric: 1) Speaker 2) Content 3) Audience 1 + 2 > 3 – 15% Can only communicate 85% of what you mean. judge decided): measures the civility of socitey. District Judge John Kane 38 “Advocacy is the skill of discovering the available measn of persuasion in a given case” . Taxaonomic: function is quantitative (can get grades) II. did the idea you wanted to get across manage to get to the audience Ethos: distinguishing character of person or group Ethics: process of developing an ethical nature or character Profesional responsibility: don’t miscite. lawyer has a conflict of zealous advocacy vs. duty of candor as an officer of the court from english law where barrister seperated from solicitor. keep it concise. Apr 18: [tentative] guest lecture: Colorado U.

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