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Basic Rule: Protects confidential communications between an attorney and a client if the subject of the communication concerns the professional relationship between the attorney and client. i. Client: 1. Includes prospective clients 2. Includes agents of clients 3. When the client is a corporation – Upjohn rule ii. Attorney: 1. Person authorized to practice law in any state (if you are not yet a member of the bar, this doesn’t apply!) 2. Attorney’s agent 3. Must be in business capacity of the law practice (something to do with the representation – not social) 4. Client’s reasonable belief controls iii. Communication: 1. Covers information passed from client to attorney and (sometimes) attorney to client or between the agents of either 2. Client’s identity and fee arrangement usually not covered 3. Pre-existing documents and things usually not covered (the document was not a communication to your lawyer) iv. Confidential: 1. Must have been made by a means not intended to disclose to outsiders 2. Not affected by presence of third party where third party is present to assist the AC relationship b. Client is the Holder of the Privilege: i. Waiver can be by failure to claim or by intentional disclosure of a significant portion ii. Lawyer has a duty to invoke the privilege on client’s belief Privilege Outlives the AC relationship and even outlives the client c. Upjohn v. United States, 449 U.S. 383 (1981) – page 209: i. Held: Communications made by Upjohn employees to Upjohn counsel while counsel was acting at the direction of corporate superiors who were seeking legal advice is protected by ACP. ii. This is a lot broader than the former “control group test.” iii. Why was the CGT inadequate? 1. In order for attorneys in a corporation to get enough information to give appropriate advice the information must be privileged. d. Fisher v. United States, 425 U.S. 391 (1976) – page 227: ACP and the 5th Amendment i. ACP - Held: Documents given to the lawyer by the client were not privileged in the hands of the lawyers b/c they were not communications between the attorney and client they were pre-existing documents. If these I.
items are not protected in the hands of the client, then they cannot be shielded by handing them over to an attorney. 1. Look at the documents themselves – see below th ii. 5 Amendment – Held: Fifth Amendment Compelled Self-Incrimination – The lawyer cannot invoke the 5th on behalf of the client b/c the lawyer’s disclosure is being compelled, not the client’s disclosure. 1. The 5th doesn’t apply when the lawyer is being asked to give up something on behalf of the client. 2. The court holds that the documents are not protected b/c they are not testimonial. 3. What kinds of things/documents are privileged/protected in the client’s hands? a. Unclear if any things/documents are b. Perhaps something like a diary – which is more testimonial in nature than personal business records e. Crime-Fraud Exception (“CFE”) to the ACP - Client communications to a lawyer “in furtherance of criminal or fraudulent activity or closely related to it” are not privileged. (These are communications where the lawyer’s services were used in furtherance of the crime/fraud.) i. The exception to the ACP applies where legal representation was secured in furtherance of intended, or present, continuing illegality. ii. This exception does not apply to communications between an attorney and a client for crimes or fraud that the client has already committed – past crimes. (Don’t want to prevent people from using attorneys when they are in trouble.) iii. The party seeking to apply the CFE must make a prima facie showing of the following: 1. The client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel’s advice, AND 2. The attorney’s assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it. iv. In Re Sealed Case (Lewinsky), 162 F.3d 670 (1998) – page 240: 1. Monica went to her lawyer (Carter) to have him draw up a false affidavit by her in the Jones case. 2. Held: The perjury was material b/c it was “predictably capable of affecting the decision of the trial court” therefore the CFE applies and Carter must produce the affidavit. 3. Note: The court in this case holds that the CFE applies and then disregards the 5th Amendment. This is important b/c they have put the 5th Amendment under the ACP and then stated there is a CFE to the ACP!! v. CFE doesn’t apply if the parties did break the law but were acting in good faith.
vi. Big Tobacco Companies: CTR (Council for Tobacco Research) – funded by the companies and held out to the public as independent, but was headed by their lawyers so that they could claim ACP. 1. The research center was established really for the purpose of defrauding the public! 2. This was not a typical litigation situation where memos with damaging information would be sent to counsel to seek advice. 3. They were busted. vii. Purcell v. District Attorney, page 248: manager of an apartment building was fired and told his attorney that he wanted to set fire to the building. Attorney called the police. 1. Prosecution tried to get attorney to testify based on CFE to ACP. 2. Held: ACP still applies and the CFE does not b/c this was not assistance by the attorney in an ongoing crime – they didn’t want the attorney to have to testify and the attorney still had the duty of confidentiality to the client. viii. Even if the client’s intentions are innocent and the attorney’s are NOT, the CFE still applies! This area is still in flux. f. Waiver of the ACP: A client loses the ACP with respect to a particular communication either by consent or by conduct inconsistent with maintaining the privilege. (Context usually is public disclosure) i. State v. Von Bulow, page 262: 1. Held: Partial disclosure may constitute a waiver of all of the communications between an attorney and a client. ii. Bulow II – Family of murderer argued that communications in the book by the attorney and in the movie are partial disclosure and thus everything must be disclosed: 1. Held: no only the information disclosed is no longer privileged. Duty of Confidentiality a. Basic Rule: ABA RPC 1.6 – page 61 of the supplement. i. Note: Watch the interplay between 1.6 and 4.1 (transactions with persons other than clients) ii. (a) Shall NOT reveal information relating to representation unless client gives: informed consent, if disclosure is impliedly authorized, or permitted by (b). iii. (b) A lawyer may reveal (permissive NOT mandatory) info if he reasonably believes it is necessary: 1. Prevent certain death or substantial bodily harm (pretty clear – must be IMMINENT) a. People v. Fentress, 103 Misc.2d 179 (1980) – page 314: Defense attempted to get all the evidence (including the finding of the body) disqualified b/c of a NY statute: A government agency which obtains evidence of confidential information or any evidence that results from that disclosure is not admissible.
3. 4. 5.
i. Held: The defendant waived his confidentiality by making statements to a third party and that this conversation was evidence that the info disclosed was not “confidential” b. Duty to Warn – Hawkins v. King County, 24 Wn.App. 338 (1979) – page 325: Client’s relatives informed his lawyer that client was insane and should not be released. Lawyer got client released per client’s wishes. Mother sued lawyer when client tries to harm her and jumps off a bridge. i. Held: lawyer did not have the duty to disclose the danger of his client to the client’s mother, who was aware of the threat, to the court. ii. NOTE: But if the victim (is a judge) is unknowing, then there IS a duty to inform the judge! Prevent client from committing crime or fraud resulting in “substantial injury” of which he has used the lawyer’s services a. In Washington you can’t disclose a past fraud but you might want to be sure you think about your own liability. b. Klein v. Boyd – page 289 - Held: a lawyer who can fairly be characterized as an author or a co-author of a client’s fraudulent document may be held primarily liable to a third-party investor under the federal securities laws for the material misstatements or omissions contained in the document, even when the lawyer did not sign or endorse the document, and the investor was unaware of the lawyer’s role in fraud. c. Most of these cases are settled b/c lawyers would rather settle than go to trial and deal with 1. bad precedent and 2. really bad publicity. d. OPM Fraud, page 304: Just b/c your client tells you they are no longer engaging in fraud doesn’t mean they aren’t! Be careful b/c fraud can be ongoing – so long as people are still relying on the fraud! Prevent, mitigate, or rectify the substantial injury, which will result or has resulted from client’s fraud or crime using the lawyer’s services. Secure legal Advice about lawyer’s compliance with RPC. Lawyer Self-Defense in malpractice, criminal charge, or civil claim (in response to a client or a third party): a. Meyerhofer v. Empire Fire and Marine Ins. Co. – page 274 – This is confidentiality and not ACP case.Held: Attorney who had been associated with law firm which represented issuer of securities and who gave affidavit concerning his participation in preparation of prospectus to law firm representing purchasers had not violated Code of
Professional Responsibility but was properly enjoined from giving confidential information except on discovery or at trial, and that law firm representing plaintiffs could continue such representation b. Note: Washington rule has less exceptions than the ABA rules c. In Re Schafer, 149 Wn.2d 148 (2003) – this is the case where the lawyer was mistreated by a judge and sought revenge by blowing his cover. i. Held: (1) attorney's disclosures of information received from client, regarding misconduct of personal representative of estate who later became a judge, involved client's "secrets" and "confidences," and (2) the disclosure of client's secrets and confidences warranted six-month suspension. Duty to Courts a. Basic Rule ABA RPC 3.3 – Candor Toward the Tribunal – page 212 of supplement. b. Note: In Washington, duty of confidentiality trumps duty to the tribunal. c. False Evidence: i. Can’t make false statements (oral or written) and you can’t submit false evidence (oral or documentary) 1. If evidence is material and was already submitted, the lawyer must take remedial measures 2. If the lawyer KNOWS the evidence is false (whether material or not) he cannot offer it. 3. Discretion to NOT offer evidence reasonably believed to be false 4. Duty ends when proceeding is over d. Perjury (b): i. Civil Cases: Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. William R. Crary, 245 N.W.2d 298 (1976): lawyer representing client in a divorce case (when adultery was illegal and adversely affected case) was sleeping with client. He knew she was lying and encouraged it during a deposition. ii. Criminal Cases: Nix v. Whiteside, 475 U.S. 157 (1986): Petition for habeas corpus. Client wanted to put forth a “new” story that the client saw a gun and stabbed the man in self-defense and the attorney said no, you can’t perjure yourself. Client was convicted. 1. Held: The attorney’s performance was reasonable and prejudice is not shown when a defendant proves he was not allowed to perjure himself. 2. This case is applied narrowly only to cases where YOU KNEW the defendant would have lied – not to cases where you are not sure. 3. The Defendant must show Two Prongs of Ineffective Assistance of Counsel Claim: a. Performance of the attorney was deficient (counsel screwed up really bad – this is difficult to show b/c courts give attorney quite a lot of leeway)
b. The performance resulted in prejudice to the client (the outcome of your trial would have been different – you usually show that you would have been acquitted) i. NOTE: Don’t have to show prejudice if the performance was really bad – like if you didn’t have an attorney or if there is a severe conflict of interest (like two co-defendants) Prosecutors and Perjury a. Special problems arise when prosecutors offer to be lenient to a defendant in order to get them to rat on someone else. It is too tempting to lie! Cardozo article stressed three things that should change in the system: i. Disciplinary proceedings against civil attorneys don’t apply to prosecutors and should ii. The proffer system for bargaining is too much of a negotiation – prosecutors should not be able to tell witnesses what they should say ever!! iii. It is not currently unethical to badger witnesses into telling what you want them to say Abusive Litigation Conduct a. Basic Rules: ABA RPC 3.2 (Expediting Litigation), 3.1 (Meritorious Claims and Contentions), and 3.4 (Fairness to Opposing Party and Counsel) b. Sleazy in Seattle article: Bogle and Gates lawyers didn’t reply in good faith to requests for documents by opposing counsel. At the time the legal community did this with regularity but the Supreme Court busted their asses. c. Anderson says the reading is clear and judges despise this kind of abuse and will be very harsh in their ruling that something is frivolous. Civil Rule 11 (Sanctions) a. Basic Rule: You have a duty of inquiring after reasonable investigation and that a case cannot be brought for a poor purpose b. Three prongs of rule 11 for proper pleadings: i. Well grounded in fact – duty of factual investigation, duty of reasonable inquiry, can’t rely on your client, objective standard depending on circumstances and exigencies of the time, must evaluate before filing… ii. Warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law – duty to research precedent, not intended to chill advocacy – this is a very difficult area to be objective about. iii. Not interposed for any improper purpose such as to harass, unnecessarily delay, or increase the cost of litigation – this is a bad faith requirement. But he says that this is basically what lawyers do all the time! c. Only applies to PLEADINGS – not to discovery etc. d. 1993 – Amendments to the Federal Rule (changes): i. Eliminated mandatory sanctions became discretionary ii. Safe Harbor 21 day – Scalia hated this b/c it took the teeth out of the rule – to make a change
iii. Part of the reason this was changed was b/c there were so many rule 11 motions they became a congestion problem in and of themselves. There was a 45% drop in reported cases of rule 11 sanctions. iv. Wording was changed in how the lawyer’s duty is phrased, “reasonable inquiry” and that there must be “evidentiary support.” e. Kirlan Venture Capital, Inc. et al. v. Regis, et al. King County Cause # (handout): The court relies on the fact that this case has been litigated for numerous years and the attorneys had the luxury of time to do the research to back up their claims with evidence. The lawyers brought all sorts of claims and they were sanctioned for being frivolous even though the claims arose out of the same facts as the “nonfrivolous” claims! i. As between the lawyer and the client who should be responsible if some of the claims turn out to be NOT warranted under existing law? 1. In Washington this is open. 2. Under the federal rule as amended in 1993 it falls on the lawyer for legal merits of the claim or pleading. ii. How much detail should a lawyer go into in order to determine the validity of a complaint? 1. Look at the defamation claim hearing, the article published false and misleading information but that the claim was sanctionable! Competence a. Basic Rule: ABA RPC 1.1 (Competence) b. It is generally not new attorneys but older attorneys who become stagnant that get caught in malpractice competence issues. c. Elements of a cause of malpractice against an attorney: i. Duty – must have an attorney/client relationship generally for there to be a duty. This is not always true though b/c you might owe a duty to an intended beneficiary: 1. Lucas v. Hamm, page 157: This involved beneficiaries suing the lawyer who violated the rule against perpetuities (they didn’t get their $$). a. Held: where there is a tricky legal doctrine the duty is no higher than the duty of any normal lawyer who would likely mess up too! b. Big Holding: Even though the beneficiaries did not have privity with the lawyer, he could have owed them a duty! 2. Rakus (Attorney was hired to write a letter to a lender and the letter claimed that the farm equipment was not incumbered but it in fact was. The attorney was held liable.) This is always construed from the reasonable point of view from the client – not from the attorney. ii. Breach of duty – Expert testimony is necessary to determine what the standard of care of the community is. 1. But what community? a. Typically it will be the lawyers in the state – refer to standard in model rules.
b. But if the typical practice standard is too low then the TJ Hooper case will rule – meaning if it is a negligent practice in general that doesn’t excuse the individual. c. Sometime an issues is clear on its face such that an expert is not necessary. 2. Smith v. Lewis, page 160: the attorney should have performed at least a reasonable amount of research even if it is an unsettled area of the law [to meet the standard of care] b/c there is nothing strategic or tactical about ignorance. 3. iii. Causation – this is where many fail. You must show that you would have done better if the attorney had not made a mistake (trial inside a trial). 1. You must show proximate cause and actual cause. 2. This is much harder to show in the case of a settlement too. 3. What if an attorney fails to relay a settlement offer to the client? a. The client would have to state that they would have taken the deal. b. This is easy to say but possibly harder to persuade the jury that you are telling the truth. iv. Harm – Restricted to purely economic harm. d. It is practically impossible for a criminal defendant to sue an attorney for malpractice b/c they have to show that they are innocent. So they will use ineffective assistance of counsel (collateral attack on the conviction itself). Then if they win they can sue for malpractice (tort suit against the attorney). VIII. Ineffective Assistance of Counsel a. Assistance of Counsel was guaranteed by Sixth Amendment based on Gideon v. Wainwright. Right to effective assistance of counsel established by McMann v. Richardson. b. The Constitutional Standard: Strickland v. Washington, page 177: The court starts with a presumption, that the defendant must overcome, that counsel is effective. Two Prong Analysis: i. Performance – whether counsel’s errors were so serious that counsel was not functioning as a reasonable attorney. Actions will be viewed deferentially to the lawyer – very strong presumption that counsel rendered adequate services. ii. Prejudice – Reasonable probability that “but for” counsel’s errors the case would have been resolved differently – this also means conviction of a lesser included offense (generally found not guilty or not have pleaded guilty and have insisted on a trial; appeal – defendant would have appealed timely or that result of appeal would have been different) 1. If it is easier to dispose of the case on the prejudice prong (egregious attorney misconduct) then you can proceed as such. c. Inquiry depends on the nature of the claim, in some cases the court may presume prejudice i. Actual or constructive denial of counsel – if the client had no attorney at all!
ii. If defense counsel fails to subject case to adversarial testing (Powell v. Alabama) – this is rarely applied. iii. Inability of counsel to advocate – like a court that ordered the defendant not to consult with attorney over an overnight break, etc. iv. This is very limited but the court won’t have to go through the Strickland analysis. d. Middle ground – limited presumption of prejudice: i. Actual conflict of interest with adverse effect by the attorney – but only if it is ACTUAL and only if it had an ADVERSE effect. ii. Trial court has a duty to inquire into conflicts – they will have a hearing and bring the issues to light. This duty doesn’t necessarily impact the defendant’s right to ineffective assistance of counsel claims later. e. Violating the code of professional responsibility doesn’t matter with respect to the ineffective assistance of counsel! Attorney-Client Relationship a. It is very easy to be found to “have” an attorney/client relationship – i. Togstad v. Vesely, Otto, Miller & Keefe, page 457: 1. It is critical that as a lawyer you should always keep notes and follow things with a letter!! Always! You can always look at a letter down the road and say that that is what you communicated with the client. 2. What happened: Lawyer met with prospective client but did not take case b/c his firm doesn’t do med mal work. Client didn’t follow up with another lawyer b/c she thought he told her that she had no case. He had the duty to at least research the case by ordering records and such to determine whether or not she had a case and to tell her about the statute of limitations. 3. If he had documented that he told her to seek another attorney he might not have been busted! b. Limiting Liability by Limiting Scope of Employment: RPC 1.2 – must have consent. i. Must be a reasonable limitation. c. Terminating the Relationship – RPC 1.16 (Declining or Terminating Representation) i. In Washington Civil Rule 7 governs ii. Smith v. RJ Reynolds Tobacco Co., page 465 – tobacco litigation – attorneys exhausted financially and mentally working on the contingent fee case. They tried to get out b/c out of money, Appellate court said that they must show that the harm they suffered is more than the likelihood of success. 1. Why did the court demand this? They are balancing what the client would be giving up against the additional costs to the firm. This is from RSTMT §44(3) balancing of adverse effects iii. If not in litigation – then you just must be sure to take reasonable steps to avoid harm to your client. iv. Contingent Fees:
1. Old Law: If there is a contingent fee arrangement and the client fires the lawyer, then gets a new lawyer, the former lawyer can demand the contingent fee! 2. New Law: Now the former can only get money based on quantum meruit d. Scope of Attorney/Client Authority and the Division of Authority i. Basic Rule: ABA RPC 1.2 – the lawyer has authority over the means and strategies to achieve whatever it is that the client wants. 1. This includes: which witnesses to call, objections, claims, arguments – even in the face of client objections). ii. BUT the client determines whether to settle, whether to file a claim. Criminal: how to plead, whether to waive jury, whether to testify, whether to appeal iii. AND the division of authority may be modified by agreement in civil cases. iv. International Telemeter Corp. v. Teleprompter Corp., page 473: Is client bound by lawyer’s act or omission? 1. If law gives L implied authority, C is bound even when C voices objection. Implied authority is broadest in litigation. The lawyer cannot create apparent authority it must come from client. 2. If law gives C authority: a. L may bind C if L has express authority (C has led lawyer to believe reasonably C has given L authority). b. L may bind C if L has apparent authority (conduct of client has lead 3rd party to believe reasonably that L has authority). e. Allocation of Decision-Making in Criminal Cases i. Jones v. Barnes, page 480 - Held: although the client wanted the appellate lawyer to raise 8 issues and the lawyer says no will raise only 3, this is within the lawyer’s realm not the client’s - so this is fine. 1. Dissent: he thinks the lawyer should do what the client wants him to do. ii. People v. Deere – page 485 - Client charged with capital crime and didn’t want to fight the death penalty. The lawyer stood by his client and did not present any mitigating evidence – it went up and down the appellate ladder. Court praised the defender. Fees a. Basic Rule: ABA RPC WA RPC 1.5 Reasonableness of Fees. Can’t charge unreasonable fees or bill for unreasonable expenses - lists 8 factors to consider to determine if fee was reasonable. The burden is on the attorney to prove the fees charged are reasonable. i. Additionally, the courts will consider the sophistication of the client, informed consent, and whether the client fully understood the billing contract. ii. They will also consider the risk to the lawyer as well as how much work was required. What is the lawyer RISKING by taking on the case?
iii. Courts are more likely to find the fee is unreasonable if the client is poor or a minor. iv. WRITE DOWN EVERYTHING. v. BE SURE YOU ARE ABSOLUTELY CRYSTAL CLEAR WITH YOUR CLIENTS ABOUT FEES. vi. EXPLAIN EVERYTHING TO BE SURE THEY UNDERSTAND. b. Each of the types of fee arrangements presents potential conflicts with the client: i. Hourly – lawyer wants to bill more, client want to be billed less ii. Contingent - lawyer may be more willing to gamble on the trial or perhaps wants to settle to make the most money using the smallest amount of time, what happens if the deal doesn’t go through? The lawyer might want it to even if not a good idea for the client. 1. Committee on Legal Ethics of W VA State Bar v. Gallaher – page 512: Lawyer never mentioned the fee agreement to the client, it was not in writing, and he claimed it was for 50%. a. Held: The court found that to be too high. He had to refund the difference. b. The client learned of the fee when the money was recovered rather than up front. c. Client was poor and elderly. d. Lawyer was also disciplined for this by the bar. 2. Has got to be in writing setting out all aspects of the fees: a. Percentage b. An accounting c. How and when the % will be calculated 3. Two matters you can’t have contingent fees for: a. Criminal Defense, or b. Divorce 4. Dangers with contingent fees: a. Incentive for lawyers to settle earlier b/c they get more money per hour of work but the client gets less b. Unscrupulous lawyers will push a trial and falsify evidence etc. to win c. Client might not appreciate how much money the % is d. Too expensive – increasing transaction costs 5. Positive Aspects: a. Many cases would not have been brought without contingent fees b. Lawyers act as gate keepers – rate of recovery is about 30% = the fee amount c. Why would a lawyer take a frivolous suit when you only get paid if it is successful? iii. Proportional – same issues as for contingent fees (standard for large business deals) iv. Flat Fee – the lawyer may cut corners
v. Pro Bono – lawyer makes no money at all and they may not put in the hours or investment that the client wants c. How does this end up in court? i. Disciplinary proceeding against the lawyer, OR ii. Lawyer sues client for fees (think first!) – you are likely to get a counterclaim for malpractice and violation of fees, OR iii. Client sues lawyer to get fees back, OR iv. Fee award (where statute or contract allows) b. Fee Arbitration in Washington: Clients can initiate or attorneys can maybe – but can’t force it on a client. i. Costs $75 ii. If fee is less than $10K you have a one-person panel - a lawyer. iii. If the fee in dispute is > $10K, then you have a three-person panel and 2 are NOT lawyers. iv. Can the attorney include the arbitration in the lawyer’s retainer agreement? Anderson doesn’t know for sure. d. In the Matter of Fordham, page 490: Lawyer sued client for payment of fees for the services of defending client’s son’s OIU (DUI). The fee was for over $50,000 while the standard is usually around $2K to $7K maxing out at $10K. i. Held: Although the client was a business owner, the lawyer fully explained the fee arrangement to the client, explained that he was inexperienced in the area, and the client consented, b/c the fee was unreasonably high for the work done the client doesn’t need to pay. e. Brobeck, Phleger & Harrison v. TELEX Corp., page 495: Corporation hires specialist to appeal case and contracts to pay him fees ranging between $25K and $5 million depending on outcome. Case settled and attorney billed for $1 million. Corporation claimed fee was excessive. i. Held: Where parties are sophisticated, client bargained for expert legal work, the contract is clear, and client stood to lose a lot if outcome was poor, fee of $1 million is NOT excessive. f. Bushman v. State Bar of California, page 496: Attorney charged a lot of money for standard divorce case AND when the court ordered the opposing client to pay legal fees he did not inform the court of his agreement with his client. i. Held: $5000 fee in addition to the $300 attorney fees ordered paid by the court for a standard divorce case where the attorney put in few hours is excessive. ii. Anderson says she think they canned him b/c he lied to the court. g. White v. McBride, page 496: Probate attorney sought to enforce a pre-death contingency agreement for which he was to receive one-third of the estate ($108,000) where the standard fee is $12,500. i. Held: Excessive fees are not enforceable therefore the lawyer forfeited any right to a fee!!!! ii. Court denied quantum meruit claim altogether. Communicating with Non-clients
a. Basic Rule: ABA RPC 4.2 (Anti-Contact Rule): Can’t talk to someone that is represented by counsel (opposing client etc.) without consent from that attorney or by court order. i. Policy – so that lawyers don’t take advantage of opposing clients ii. Very Strict – can’t even send documents to opposing client. The client’s lawyer (opposing counsel) controls all inflow of information to the client. iii. Client CANNOT waive this – it is for their protection and that would defeat the purpose iv. You can’t have your agent communicate with opposing client BUT you CAN have your client talk to opposing client!! (Loophole). 1. Note the role that you are playing – not your job – when lawyers are clients b. In the Matter of the Disciplinary Proceeding Against Carmick, 146 Wn.2d 582 (2002): Attorney talked with opposing client without contacting her attorney and when she asked about her attorney he lied and said he was out of town. i. Held: The attorney violated RPC 4.2 c. What if opposing client is a corporation? Do you apply Upjohn? i. Niesig v. Team I, page 536: Plaintiff’s attorney wanted to interview defendant’s EEs who witnessed the accident. Defendant following Upjohn said no the EEs are “parties” b/c defendant is a corporation. 1. Held: Upjohn is distinguished b/c it is too broad in this context and only applied when the client is seeking legal advice. 2. Held: Defined “party” under RPC 4.2 to include only those EEs whose acts or omissions in the matter under inquiry are binding on the corporation or imputed to the corporation for purposes of it liability, or EEs implementing the advice of counsel. This is the “control group” test. ii. How do you know which EEs you can talk to? When in doubt you can always ask the court to rule on the issue. Government as opposing client: When the other party is the government the rule applies to some extent but since a citizen is allowed to petition the government the attorney can still contact the government to a limited extent. d. Criminal Context: i. Prior to indictment 1. Can a prosecutor contact a Mafioso who has an attorney at all times on retainer? a. Yes, b/c it is not a “matter” until there is an indictment. b. Whether there is or is not a matter is more clear in the criminal context. c. The government can send in informants and investigate even if the person was represented. d. This is a public policy to keep rich, savvy criminals from benefiting.
e. United States v. Hammad, page 547: Court held that legitimate use of informants does not violate the rule (exception) but using a fake subpoena was going too far. i. It is also to not force the prosecutors to pull back to allow police to take over without supervision. ii. Post indictment 1. After indictment, the criminal defendant can waive Constitutional rights can they also waive this rule too? a. Lopez says no, b/c it will defeat the rule if allowed. b. If the prosecutor violates rule 4.2 will not overturn the conviction. 2. Can a prosecutor talk to a jailhouse snitch who has an attorney for another matter? a. Probably not a good idea b/c the snitch will likely want to talk about his case and his attorney should be there. XII. Transactions with Clients a. Basic Rule: ABA RPC 1.8 (Conflicts of Interest: Current Clients: Specific Rules) – Engaging in business with your clients is generally a bad idea. b. In the Matter of the Disciplinary Proceeding Against Halverson, 140 Wn.2d 475 (2000): Attorney in a divorce proceeding is screwing his client and she has a breakdown then sues him. Came down before 1.8(j) – court didn’t want to come up with a per se rule but hit him hard with conflicts. c. Committee on Professional Ethics and Conduct of Iowa State Bar Association v. Mershon, page 558: Attorney for client went into business with an engineer and the client to develop the land. Attorney pledged legal services as investment. i. Held: Mershon violated the rule b/c he did not give full disclosure of all pros and cons to the relationship, nor did he advise his former client to seek outside counsel. It also was not clear who the client was anymore. d. Passante v. McWilliam – page 562: Attorney loans money to the corporation (his boss and client) in exchange for 3% of company. The company’s value goes through the roof and the attorney is looking for his 3%. The company says sorry nope. The court says either way you lose: i. If it was an adequate contract then it is void b/c of the PR requiring full disclosure. ii. If it was not bargained for then it is gratuitous and therefore unenforceable. e. The “Stranger Rule” – The lawyer who enters into a business transaction with a client must give the client the same legal advice and guidance as would be given by a lawyer who is a stranger to the transaction. XIII. Concurrent Conflicts in Litigation a. Basic Rule: ABA RPC 1.7 (Conflict of Interest: Current Clients) – i. Can’t represent clients that are directly adverse or will be substantially limited – (a)(1) cannot consent out of these 1. “Directly adverse” – means you are on opposite sides of the same litigation
ii. If lawyer believes representation will no be affected and meets other criteria in (b)(1), (2), and (3) then he can represent conflicting clients if BOTH CONSENT. iii. Concepts: 1. Undivided Loyalty to the client 2. Confidentiality Westinghouse Electric Corp. v. Kerr-McGee Corp., page 581: i. Held 1: An attorney-client relationship can arise when the lay party submits confidential information to the law party with reasonable belief that the latter is acting as the former's attorney ii. Held 2: The size and geographical scope of the supplier's counsel, a multi-city law firm, which released a report on the uranium industry while representing an association of oil companies and simultaneously filed a lawsuit representing the supplier seeking to establish an illegal conspiracy in the uranium industry, did not exempt the firm from the ordinary ethical considerations applicable to lawyers generally, and iii. Held 3: The district court did not abuse its discretion in concluding that ten-year past representation on two specific matters unrelated to the present case did not warrant disqualification of the firm on another defendant's motion. Fiandaca v. Cunningham, page 595: NHLA is a legal organization that represented two different groups that initially did not have a conflict. The groups were: New Hampshire Retarded Citizens’ Group and Female Prisoners. But then when the opposing party to the female inmates, the state, proposed to settle by cohousing the inmates at the school for the mentally retarded a conflict developed. i. The NHLA stated they didn’t want to take any settlement that would conflict with the plaintiffs in the Retarded group ii. Held: (1) class's counsel should have been disqualified for conflict of interest, and (2) second class of state mental hospital residents were entitled to intervene after facility on hospital grounds was considered for use by female prisoners Criminal Cases: Cuyler v. Sullivan, page 608: In this case there were two attorneys and three defendants. There was no objection at trial for this multiple representation. The standard for ineffective assistance of counsel based on a conflict of interest: i. Must show an actual conflict, and ii. Don’t have to show prejudice (outcome of trial would have been different) but have to show that conflict adversely affected counsel’s performance – Anderson says this is a lower standard (like prejudice but lower) NOTE: In civil cases you only have to show that a conflict exits! But in criminal you have to show that it adversely affected your counsel!! United States v. Schwarz, 283 F.3d 76 (2d. Cir. 2002): Schwartz was represented by Worth, Bruder was represented by London, then London and Worth formed a firm. Then PBA (insurance co that pays for police legal defense) contracted with London/Worth to provide all of the legal services of the group - worth about $10 million. At the same time PBA is being sued by the victim in a civil suit for
conspiracy to commit and cover-up the crime. This is a mess… So London/Worth will be defending the PBA AND the individual police officers. i. The co-defendants waived on the record the potential for conflict. ii. The attorneys assure the court that the defense they will present dove-tail with one another and there is no problem. iii. The court reversed, however, b/c the conflict was so serious that no rational person would have waived it – b/c the evidence to save the defendants in the criminal case cut against the defendant in the civil case. iv. The court says this can’t be waived b/c of the kind of conflict created by the retainer – the attorney had his own personal interest in keeping the contract. v. NOTE: Where you have a conflict that implicates the attorney’s own financial interests it is more likely something that cannot be waived. XIV. Concurrent Conflicts in Transactions a. Basic Rule: ABA RPC 1.7 – just like for above, same standard. b. State v. Callahan, page 618: Callahan is being disciplined. Elderly woman owned land in Kansas, lived in CA, and wanted to sell the land. She found a buyer who recommended the attorney. The attorney had been in business with the buyer for many years and he did not disclose this to her. She thought he was representing both. i. He had a duty to disclose his relationship with the buyer to her ii. She could have consented to this anyway – but it is unlikely she would have if he had given full disclosure as he was supposed to c. A v. B, page 624: Husband and wife jointly had firm draw up a will. Husband disclosed to lawyer that he had an illegitimate child and wanted to include the child in the will. Firm wanted to tell the wife. Courts differ in their opinions of this. d. RPC 2.4 allows you to be a “lawyer for the situation.” But be careful. e. Divorce cases – generally not a good idea to represent both parties but it is done all the time. f. Insurance – you represent the insured while the insurer pays you. If your client discloses to you that it might have been intentional, what is your obligation? Your duty is to the insured and you cannot disclose this to the insurance company. But, you should talk to another lawyer about the coverage issue – you can’t represent them in this. g. Contract negotiations - You represent a dancer negotiating an employment contract with the ballet company. Then the company asks you to represent them in a land deal. Can you do this? Maybe, so long as you get informed consent of both parties. It would likely depend on how the negotiations are going too. XV. Successive Conflicts a. Basic Rule: ABA RPC 1.9 (Duties to Former Clients) – The former client can CONSENT out of all of these. There are two parts to this issue: i. “Former” Client – is the client “former” or “current”? ii. “Same” or “Substantially related” matter b. Lawyers who work for the government must ALSO follow RPC 1.11.
c. Brennan’s Inc. v. Brennan’s Restaurants, Inc., page 642: The lawyer Wegmann assisted the families in prosecuting a trademark the name “Brennan’s.” Now the trademark is in dispute. This is definitely substantially related. But Wegmann says the former relationship was joint representation so he shouldn’t be disqualified b/c there is not confidential information between joint clients. i. Held: Court stretches loyalty to include confidentiality and says it looks improper and they disqualify him – but not his co-counsel unless he shared “confidential” information with him. ii. The other glaring issue is since Wegmann prosecuted the trademark then his is likely to be called as a witness – another conflict! d. Primary Client – See the Allegaert case, page 647: Some courts say you can continue to represent the “primary” client in a joint representation when the joint part falls apart. This is not common. How can you have a primary client??!! Don’t count on this concept. It is rare. e. In Re: American Airlines, Inc., page 650: i. Current Litigation (The firm, VE represents NW) 1. Continental sues American in TX – predatory pricing 2. American sues NW and Continental in IL 3. NW sues American in TX ii. Former litigation (VE represented American) 1. Fort Bend: Continental sued American for anti-trust violations in CRS 2. System One: Continental sued American for breaching contracts and other misconduct in use of CRS. 3. VE: Advised American on antitrust implications of proposed merger. iii. The “substantially related” test – 1. Must be akin to the present action in a way reasonable persons would understand as important to the issues involved. 2. When the prior representation concerns “the particular practices and procedures which are the subject matter of the suit” iv. Held: This was substantially related b/c it dealt with establishing markets etc which is similar to antitrust f. Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, page 666: Normally representing economic competitors is not an issue. But here, the information was so specific that the representation was prohibited. The small market had a limited number of clients and the firm had acquired sensitive information that could be used to the former client’s detriment. g. Be careful that when you represent successive clients or you represent opposing clients to your former client (even if the matter is different) that you don’t end up defeating your prior work!! XVI. Imputed Conflicts a. 1.9 (b) involves a lawyer who moves on to another firm- lawyer didn’t actually represent client but was in a firm that represented the client i. Interests materially adverse ii. About whom the lawyer acquired protected info
b. 1.10(a)- imputation of conflict of atty to atty’s entire firm i. Exception for personal conflicts ii. (b) when a lawyer has left a firm, firm isn’t prohibited…. c. 1.9(a)- a lawyer who previously represented a client d. Washington allows screening for private attys, but the model rules don’t. e. Nemours Foundation v. Gilbane (US Dist Ct of DE 1986): Why was atty Bradley disqualified? i. He had previously handled documents involving Nemours attempts to settle ii. Firm and atty didn’t realize there was a problem at first, when they became aware of it they put the screening into place iii. Held: Bradley is disqualified but that it won’t be imputed to the firm iv. Ct balances the expectation of the confidentiality of the former client against the ability of the new client to seek the atty they want 1. Says atty Bradley doesn’t remember anything 2. Screening implemented as soon as they knew 3. Files kept in separate place than this file was kept- he had no access to the file 4. Bradley was a lowly associate at the other firm 5. There was a scarcity of attys who could work on this case v. They maybe could have obtained consent easier if they had found out about the conflict upfront f. Screening: a court will look at the quality and effectiveness of the screening: i. Timeliness ii. Effectiveness of screening iii. Must give notice to opponents of the screening and what you did g. GOVERNMENT LAWYERS i. 1.11 doesn’t replace 1.7 and 1.9 for govt lawyers, it’s in addition to ii. 1.11- (a) former govt lawyer shall not otherwise represent a client in connection w/ a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the govt gives consent 1. Doesn’t matter if the person you’re now representing is basically on the same side as the govt 2. (b) imputation to firm, w/ screening allowance 3. With screening, govt doesn’t need to give informed consent but written notice must be given to the appropriate govt agency so they can comply iii. (c) former govt lawyer has a continuing duty not to use confidential info acquired about someone when they were a govt employee 1. can’t be cured by the govt’s consent iv. (d) has to do w/ when a lawyer goes from private to public 1. Subject to 1.7 and 1.9 and shall not participate in a matter in which they participated personally and substantially…. 2. May not negotiate for private employment while participating personally and substantially in a matter where that private employer is involved.
v. Must look for exploiting the same side as much as adverse interests h. SIPC v. Vigman (US Dist Ct CA 1984) i. Only relevant rule is 1.11 ii. Ct says they are disqualified- they had both been significantly involved in the same matter when they worked with the SEC iii. They signed documents, complaints, motions, etc as the atty iv. They appeared in ct v. One of them was the supervising atty over another atty working on the case vi. Doesn’t matter that they are still essentially arguing on the “same side” vii. Govt refused to consent here viii. Rulemaking, bill drafting, etc aren’t “matters”- they involve law rather than particular parties and facts. So no problem under the Rules when an atty drafting legislation and then sues or prosecutes someone under those same rules later ix. Look at agency rules and statutes with govt or former govt lawyer conflicts. Don’t just look at the RPCs!! XVII. Who is the Client? a. Relationship between Organization’s Lawyer and Its Officers: If you are in house counsel for a corporation, an officer asks you to help out with an insurance company issue, what do you do? That is okay for you to help b/c the rules don’t prevent it so long as you are not seen to be representing the officers and the corporation when there are allegations of wrong-doing by the officers. b. Meehan v. Hopps, page 709: The company sues Hopps as the officer for dominating the company’s business for personal gain. He moved to have the company’s firm disqualified claiming that it had personally represented him. i. Held: no b/c the firm had only represented him in his position as director and officer. ii. Just b/c the lawyers took his side on some issues doesn’t mean the lawyers are representing him. iii. But he says they have confidential information from this representation. iv. Held: When you are talking to the corporation’s lawyer you are talking to the corporation there is no confidentiality here. c. SEC regulations –created a huge controversy when proposed b/c Washington didn’t have 1.13(b) and (c). i. These regulations required reporting out at first not reporting up – like noisy withdrawal, contacting the SEC to explain that you don’t stand behind documents, etc. ii. Most lawyers did not like having to tattle on their clients. iii. Page 1012, §205.3(d) – permissive disclosure exception. Who does this rule cover? Any lawyers practicing before the commission – who are those deemed to be practicing? §205.2 (page 1006) – transacting any business with the proceeding, representing someone with their securities, etc. It is pretty easy to be covered. iv. Washington Bar has issued a formal opinion. SEC is just permissive disclosure – as long as you don’t disclose anything you are not in conflict!
1. BUT the SEC says you must have good faith compliance. Ugh. This is conflicting. It is just an interim opinion though. XVIII. Almost Clients a. Basic Rule: ABA RPC 1.18 (Duties to Prospective Clients) – defines PC, states you can’t use information you gained in discussions with a PC against them, can’t represent a client adverse if you gained information that is harmful to PC, imputed to firm, but if PC and affected current client give informed consent in writing then okay. There is also a screening clause. b. Fassihi v. Sommers, Schwartz, Silver, Schwartz and Tyler, P.C., page 759: Shareholder and officer in a professional medical corporation brought action against corporation's attorney alleging breach of attorney-client relationship, breach of fiduciary, legal, and ethical duties, fraud, and legal malpractice for not revealing information with respect to the corporation’s prior contractual relationships. i. Held: (1) no attorney-client relationship existed between plaintiff and defendant attorney; (2) complaint stated a cause of action for breach of fiduciary duty; (3) complaint stated a cause of action for fraudulent concealment; and (4) attorney-client privilege could not be asserted by defendant against plaintiff to enable defendant to refuse to answer questions relative to communications concerning ouster of plaintiff from corporation. c. Fickett v. Superior Court of Pima County, page 772: Conservator of incompetent's estate brought action against former guardian and attorneys alleging attorney was negligent in failing to discover that guardian had embarked upon scheme of misappropriation, conversion, and improper investment. i. Held: the fact issue of whether attorneys knew or should have known that guardian was acting adversely to ward's interests precludes summary judgment. ii. Basically the court held that the attorney also has a fiduciary relationship with the ward as well as to the guardian. XIX. Admission to Practice Rules a. You must have good moral character and have passed the bar. Generally denial of admission is based on the committing of serious crimes or being disbarred or denied bar in another state. i. But the committee can deny you this for any reason if it deems necessary. ii. What is a serious crime? Basically a felony or any crime that interferes with the court or the administration of justice. iii. Remember the exclusion is not automatic – it is on the discretion of the board. b. Intersection of good moral character and freedom of speech: In re Hale, page 875 i. Outspoken racist guy who advocated the destruction of our current system of government finishes law school and attempts to take the bar and is denied admission based on his statements.
ii. USSC denied certiorari on the case. Appeals affirmed b/c the courts are interested in only allowing those that can uphold the system of justice as it is – not those who desire to destroy it. c. In re Wright: This guy was convicted of second-degree murder, heroin possession, and the unlicensed practice of law (research on incorporation) and then attempted to take the bar. i. Held: the jury already rejected all of his claims – we won’t look behind the circumstances of the conviction. B/c he was not remorseful at all (the court had a real problem with this) they denied his admission. Regulation on Competition and the Unauthorized Practice of Law a. In Washington this is covered by General Rule 24. UAPL is defined loosely as the application of judgment to a particular set of circumstances regarding legal rights or responsibilities. Not defined in any rules anywhere but by common law interpretation of particular circumstances. b. There are exceptions found in APR 8, 9, and 12: i. Limited law license practice – real estate officers ii. Rule 9 iii. Out of state attorneys iv. Court house facilitator v. lay representative person in administrative hearing vi. mediation vii. labor negotiations viii. assistance to fill out a form for protection for DV or for a TRO as long as no charge ix. legal forms in any format x. etc. c. CRIME – UAPL is a crime if you are fraudulently holding yourself out as a lawyer. d. Unauthorized Practice of Law Committee v. Parsons Technology, Inc., page 993: Software with claims on the box stating it will take information the client enters into account and custom select forms based on state laws was considered the practice of law. The court held the program was making legal assumptions. It is unauthorized b/c the person who owns and distributes the software are not lawyers licensed in TX. i. Free speech resolution – court determines this statute was content neutral so it is subject to intermediate scrutiny. Based on this, the court determined the state has a substantial interest which outweighs any minimal oppression of first amendment free speech. e. Perkins v. CTX Mortgage Co., page 1002: A large real estate finance company can have non-lawyers fill out forms so long as the attorneys are the ones doing the discretionary portion (selecting the forms) while the non-lawyers aren’t doing any kind of discretionary work. BUT, this is the practice of law (limited) and the nonlawyers will be held to the standard of care of real attorneys. f. Washington case from 2002 – follows on the Perkins case. Claims adjuster from an insurance company can practice law as long as they maintain the same
standard of care as an attorney! Weird. Jones v. Allstate Insurance Company, 45 Wn. 3d 1068 (2002). XXI. Advertising and Solicitation a. RPC 7.1 – false or misleading communications about a lawyer or his services are prohibited in advertising or solicitation (any time you talk about your services). b. RPC 7.2 – more specific – written, recorded, or electronic is okay. Can’t pay people to recommend you. You must include your address and your name. c. RPC 7.3 – Solicitation rules – cannot personally solicit a client in person unless you have a close personal or family relationship or a prior professional relationship with the client (read the comments – does this include a prior professional relationship that was not in law or must they be a prior client?). d. Washington rules: They are basically the same but a little more specificity in what is “material misrepresentation.” i. It is likely to create an unjustified expectation about results the lawyer can achieve. ii. You can’t compare yourself unless you can substantiate your claims e. Florida Bar v. Went for It, Inc., (1995) – O’Connor said that upholding the appearance of the bar is a sufficient state interest to regulate free speech. See page 1030. i. In WA, the bar doesn’t go after lawyers who violate this as much b/c they have their hands full. f. Ohralik v. Ohio State Bar Association, page 1018: Attorney solicited an 18 y.o. client and her parents, made misleading statements to the passenger in her car, then recovered money for breach of representation contract. He had contracted to represent both! He was fired. One had to give him the money to get her share and the other for breach. i. Held: in person solicitation is not protected where solicitation takes the form of vexatious conduct: fraud, undue influence, intimidation, overreaching, and others. g. In Re Primus, page 1018: What is the distinction between seeking clients for political reasons v. seeking them for financial reasons? In this case, when the gain is not for “economic reasons,” then it is less likely to be predatory (therefore it is okay). h. Shapero v. Kentucky Bar Association, page 1020: Lawyer aware that individuals’ homes were being foreclosed upon, prepared a letter to send to them, and requested permission from the bar to send this letter. i. Held: he was allowed to send them. ii. Rationale: Letters are not persuasive like in personal contact – less of an opportunity for overreaching. No reason to treat targeted letters differently than blanket mailings about foreclosures b/c you will reach the person either way. Foreclosure is public information. Even though the tone of the letter was not tasteful, the Court doesn’t care b/c it is a letter. i. Things to think about when setting up websites: i. Confidentiality – once you receive information it will create problems under conflicts and you can’t screen b/c you have already received it
ii. Current – you have a duty to keep it current iii. Multi-jurisdictional practice – explicitly state where you are licensed XXII. Multi-State Practice a. Basic Rule: ABA RPC 5.5 – lawyer shall not practice law in violation of the regulations for practicing law in that jurisdiction. b. (c) Exceptions – THESE ARE NOT IN THE WA RULES HERE (but are taken care of in other rules – GR 24 and APR 8): i. Temporary basis is okay so long as you are working with local counsel (client pays for both!) ii. Pro hac vice admission – local court authorizes out of state attorney for a particular court – you get a court order to do this. Most jurisdictions require as a condition of pro hac vice that you meet 1. iii. ADR proceedings – no pro hac vice b/c you are not before a court. It is okay to do this if services arise out of or are reasonably related to the practice where the lawyer is licensed iv. Catch all section – major representation in your home state that spills over to other states c. Supreme Court of New Hampshire v. Piper, page 1048: State bars cannot use residency as a requirement to admission. It is a violation of the Privileges and Immunities Clause. Being a lawyer is a method of livelihood = a privilege. There can be no distinction based on residency. The test: i. Privileges and Immunities Clause does not preclude discrimination against nonresidents where there is a substantial reason for the difference in treatment, AND ii. The discrimination practiced against the nonresidents bears a substantial relationship to the State’s objective. d. Birbrower, Montalbano, Condon, & Frank, P.C. v. Superior Court, page 1056: Advising and negotiating arbitration in California using CA law and eventually settling the dispute = the practice of law and it was unauthorized b/c the attorneys were not licensed in CA. i. It isn’t clear where the work was done. ii. Even phone calls to CA were considered the unauthorized practice of law. iii. Page 1058 – footnote – no statutory exception allows you to associate with local counsel. The ABA model rule allows this now. e. Choice of Law: Model rule 8.5 provision says where the act is committed the law there governs. Washington doesn’t have a provision. Things to think about as your study: 1. Don’t just simply look at the rules alone. Look at all of the cases too. 2. Think about the different ways that “bad actions” can be enforced: discipline (least likely), malpractice (most likely), civil liability, being fired, criminal liability as an accomplice, loss of reputation, court sanctions, and disqualification. 3. Keep in mind the main areas of the rules: conflicts, confidentiality, candor etc. 4. Keep in mind the policy considerations behind the rules – refer to these when it is applicable. Like: loyalty, client’s choices, confidentiality, client’s choice of lawyer,
assuring competence, public confidence, not allowing lawyers to commit fraud, overreaching, duties to the client, etc. 5. Focus primarily on the model rules except the significant differences she mentioned in class. 6. Know the difference between confidentiality (lawyer’s duty under RPC to keep information learned during representation confidential – note exceptions that permit disclosure) and attorney/client privilege (rule of evidence – if your client is being sued and you are being asked to provide information you have a duty to assert attorney-client privilege) – see page 248 Purcell v. District Attorney as an example of the interplay.
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