1 ESSAY- 10 PARTS = 70% 30 MC= 30 %

FOUNDATIONS

OF

PROFESSIONAL RESPONSIBILITY

A. Malpractice Action v. Disciplinary Action 1. Malpractice – i. Negligence: attorney’s actions were below the standard of care exercised by people in his field ii. Civil court iii. Injured plaintiff iv. Purpose: compensate plaintiff 2. Disciplinary Action – i. Expert testimony that attorney deviated from Model Rules

1. This can help to prove malpractice, but deviation from MR is not, in itself,
per se malpractice ii. Tribunal iii. Purpose: punish lawyer iv. Lawyer disciplinary actions are published in NY Law Journal B. Ethical Tensions 1. Tensions between 2 forces attorneys face i. Lombardi/Superman Conflict 1. Lombardi –

a. “Winning isn’t everything, it’s the only thing”  lawyers have a duty
to zealously represent clients 2. Superman – a. Lawyer knows something is wrong but it is in the best interest of the client i. There is a conflict because you still have a duty to zealously represent your client but may not want to do wrong thing 2. Striking Balance –

i. Zealous Advocate – Lawyers are ethically and professionally responsible for acting
loyally and zealously on client’s behalf

ii. Officer of the Court – Lawyers are human beings with strongly held personal
beliefs regarding morality C. Concept of Professionalism 1. Attorneys are members of a profession 2. Profession –

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i. Certain behaviors that are, at a minimum, to be expected of people of the occupation ii. Require special skills iii. Exclusive licensing 1. Special privileges – state enforced monopoly a. Monopoly on practicing law. Only those members admitted to the bar can provide legal services iv. Clients have no idea what we are doing

1. Esoteric nature to law  need rigorous training to understand
v. Elitist – 1. There are steps you have to go through to be a part

vi. Possibly need to take an oath
3. Professionalism Defined –

i. Dean Roscoe Pound [Harvard Law School]: “pursuing the learned art, as a
common calling in the spirit of public service, and the money is incidental” ii. ABA Commission on Professionalism: special expertise and ethical responsibilities iii. Friedson: “an occupation whose members have special privileges, such as exclusive licensing [monopoly] justified by these assumptions – 1. Practice requires substantial intellectual training and use of complex judgments 2. Client trust based on inability to evaluate adequately the quality of the service 3. Client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both client’s interest and public good, and 4. That the occupation is self-serving D. In re Paulter 1. Neal refused to turn himself in unless provided a public defender 2. Paulter pretended to be PD 3. Colorado Attorney Regulation Counsel found that Paulter violated – i. Rule 8.4(c) – engaging in conduct involving dishonesty, fraud, deceit, or misrep. AND ii. Rule 4.3 – dealing with a person not represented by counsel 4. Tried to argue exception to 8.4(c) – imminent public harm 5. CO SC held – i. Actions NOT justified –

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1. “Even a noble motive does not warrant a departure from the Rules” 2. No imminent public harm a. “When presented with choices, at least one of which conforms to the Rules, an attorney must not select an option that involves deceit or misrep.”

3. Paulter purported to represent Neal  that is enough to violate 4.3 4. When there is tension between other duties, it is not a justification to
depart from the Rules – a. Image of the legal profession can only be harmed by ethical rules that permit deception

b. Our clients can only benefit from attorneys that set a moral
compass.

REGULATING ATTORNEY CONDUCT
A. History of Model Rules of Professional Conduct 1. 1908 ABA Canons of Ethics – first comprehensive attempt by legal profession to regulate itself i. Deliberately vague because drafters were worried that no code could particularize all the situations lawyers would face 1. Too general – “glittering generalities that lack a body to kick and a soul to condemn” 2. Lawyers want more clearly, sharply framed directives a. Produced ethical incoherence ii. No direct regulatory consequence iii. Enforcement was intermittent, haphazard, and often biased against solo and small firm practitioners

2. 1969 Model Code of Professional Responsibility (DIFFERENT from the Model Rules)
i. 3 sections 1. Canons: described general professional norms 2. Ethical considerations: aspirations 3. Disciplinary Rules: set a floor for professional conduct ii. Weaknesses – 1. Too concerned with trial lawyers and not transactional/negotiators 2. Didn’t take into account large firm, multijurisdictional practice 3. No provision regarding subsequent representation adverse to interests of

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6 C. 1983 ABA Model Rules of Professional Conduct i. Black letter rules with explanatory comments 1. OR ii. from admissions or disciplinary authority 1. Must be adopted by states to be enforceable 1. Aspirational: speak to level of conduct lawyer should strive to achieve 4. Otherwise advisory a.]. NY exception: bar admission is determined by appellate departments ii. Model rules re advisory only UNLESS adopted by the state iii. NY was 48th state on April 1. Source of such power – 1.oriented. Mandatory: must do – require disciplinary action when violated 2. Part of definition of what it means to be a court  power vests upon creation of court iii.Maine iv. 2009. Admission to state court does not automatically entitle practice in federal court 1. The history of legal ethics and the model rules are Client. Client always gets the benefit of the doubt 1. Permissive: allowed to do – no disciplinary action when violated [just a guide] 3. or lawyer in connection with a bar admission application or in connection with a disciplinary matter.former client 3. Each lawyer is zealously advocating the interests of their client. Admission to Practice 1. Precursor to federal practice – 4 . Comments: do not add obligations ii. Knowingly make a false statement of material fact. 49th state. OR iii.adversarial system. The ABA does not discipline lawyers 1. Unless information is protected by Rule 1.1 – Bar Admission & Disciplinary Matters 1. Adopted by 49 states [not Cali. Rule 8. 2. B. An applicant for admission to the bar. Licensing of attorneys in a state is in exclusive control of supreme court 1. shall not – i. Supreme Court of state governs rules and procedures to be admitted to practice i. Knowingly fail to respond to a lawful demand for info. Fail to disclose facts necessary to correct a misapprehension.

NOT assumed ii. no right to have someone pro hac vice  at trial court’s discretion a. can be denied 3. Must be lawyer in the state where the district court sits i. No due process right to hearing if denied [no constitutional right to pro hac vice representation] iii.a. Criminal cases – 1. Can be admitted to practice before a court that you are not a member of “for this turn only” 1.applies ii. There is a limit to number of times 1. This lawyer would be a lawyer in connection with a bar application. Attorney client relationship supercedes any other requirement 5 .1 a.6 2.6] 1. Pro hac vice – i. Applicant has burden of proving good moral character. Patent and Trademark Office have separate admissions requirements (separate bar EXAM) in order to practice before that agency [Patent Bar] 4. Duty to client superseded by reporting requirements of Rule 8. Duty of Competence . Administrative Agencies i. Not explicitly stated. SC and other jurisdictions allow admission based on prior admission to another federal court b. but does not have to disclose facts necessary to correct known misapprehension or knowingly fail to respond to lawful demand for information if such is covered by Rule 1. Good Moral Character i. but if it looks like you are trying to circumvent state admission procedures. Court will likely require – i.Model Rule 1. Need to be introduced to court by a current member of federal bar 2. A lawyer representing a client/applicant for bar admission is governed by rule applicable to client/lawyer relationship [Rule 1. Just because there is a right to counsel. Some kind of association with local firm because need attorney to be subject to discipline of the court ii. Submit a motion with particular court before whom you wish to appear a.

Even if not required to disclose and they find out. but insist that rules were applied unfairly and incident has little significance in assessing character i. Pay them b/c they can be evidence of fiscal irresponsibility/disrespect for the law iv. Convictions? a. but just failed i. noting the seriousness of the matter i. even if not illegal. can be basis for denial b. as engaging in unauthorized practice of law or having disrespect for legal system a. Must disclose if asked  cannot refuse to answer a question on First Amendment grounds if it is regarding if you were arrested [even if you were arrested for voicing freedom of speech] i. Admitted 6 . If you disclose and apologize. can be an independent basis for denying admission. If you disclose.iii. Arrest a. Parking Tickets a. If you don’t disclose because you were not disciplined under school’s honor code. even if arrest itself would not be basis for denial b. Yes 2. Arrest/unsuccessful prosecution can be basis for denial c. Morality 1. Courts can deny admission if they view applicant’s activity. Do you have to disclose… [Character and Crime] 1. Failure to disclose arrest. even as a juvenile. Denied  not being sufficiently contrite can be basis for denial c. Even if speech was constitutionally protected 2. Do not need to disclose unless application asks elsewhere i. IE – failed a class for not citing and NOT disciplined under school’s honor code a. Cannot refuse to answer questions about arrest on 5th Amendment privilege 3. Denied  failure to provide relevant information can be basis for denial b.

It is presumed that the attorney exercised undue influence iv. SEC v. Financial Habits 1. Trust a. client can be in trouble a. attorney’s default. McNulty – in litigation. Poor financial patterns can be a basis for denial a. Implied authority. Binding the Client – 1.retainer agreement 2. or worse 2. will not be admitted DUTIES OF LAWYERS TO CLIENTS & REPORTING MISCONDUCT A. ii. define scope of representation 1. representations can be used in subsequent trial 2. Actions of lawyer are attributable to client if lawyer errs. Integrity 3. Client delegates authority to lawyer to speak on his behalf and if attorney acts improperly or negligently. Express authority. IE – even if mistrial. Honor 2. When an attorney enters into a business transaction with a client – 1. “Unique/ultimate position of trust and confidence” b. lawyer can be subject to malpractice if client expects lawyer to do something but lawyer doesn’t think he was hired for that iii. Lawyers have highest level of fiduciary duty iii. mistake or omission can be attributed to client and client may not be relieved 3.attorney –client relationship. Lawyer must place interests of client above his own 1. Reasons for this highest level of fiduciary duty – 7 . Things lawyer says in court can be vicariously attributed to client. Lawyers occupy a “unique position of trust and confidence” ii. Fiduciary i. To protect lawyer and client.v. Lawyers are client’s agents  authority to act of behalf of their clients regarding the subject matter of the retainer1. is careless. If open area. Agency i. Until steps/efforts are made to repay debts and take steps to improve financial practices. Duties of Lawyers to Clients 1. even in subsequent trial a.

Undivided loyalties a. Rule 1.1.3 – Reporting Professional Misconduct 1. integrity and fairness and put aside caution that is customary when dealing with others on important matters 2. zeal. (a) A lawyer who knows that another lawyer has violated Rules that raises a substantial question as to lawyer’s honesty. Disbarred  gravamen of charge was abuse of trust of client  gave unsecured promissory notes because she trusted him and his judgment i. exertion of utmost learning and ability B. Client may be financially or psychologically dependent on attorney’s continued representation  not so easy to change attorneys v. Undermines ability to be diligent and threatens fiduciary position iii. Lawyer must pursue client’s objectives without being conflicted by other responsibilities or interests 1. Self-dealing and divided loyalty here  even if plaintiff didn’t sustain economic loss. Loyalty and Diligence i. Lawyers may have acquired confidential information about client that gives an unfair advantage in dealings between them 3. Benson v. fiduciary must return ill-gotten gain 3. Duty of loyalty Survives termination of attorney-client relationship  lawyer cannot act “adversely” to a former client in “substantially related matter” ii. it is not ethically valid a. Attorney borrowed money from client in return for IOUs [unsecured promissory notes] a. he failed to reveal extent of financial distress vi. In re Lerner – 1. State Bar – 1. Rule 8. or fitness as a lawyer. shall inform appropriate professional authority i. If client doesn’t know about joint representation agreement. Entire devotion to client’s interest.0(f) defines “know” – 8 . In solicitation of unsecured loans. Client depends on lawyer’s superior knowledge/judgment. Duties – 1. trustworthiness. Pursue client’s interests without undue delay 2.

Lawyer may report suspected misconduct. 5. NY COA says yes – a.6 3. Recently. Skala – i. Wieder v. trustworthiness. Obligations to the Clients iii. You are an officer of the court ii. Such knowledge can be inferred from circumstances” b. No duty in Rules. 4.6 ii. More than a suspicion. but spirit of 8. Duty to investigate further to reach point of actual knowledge after you have a suspicion? i. Is it against public policy when a lawyer firm fires a lawyer for reporting a disciplinary violation by another attorney? 1. willful blindness has developed  investigation will avoid willful blindness a. Substantial question as to other lawyer’s honesty. Obligations to the court 1. but not absolute certainty 1. “Actual knowledge of the fact in question a. show client and get informed consent so you don’t violate 1. * Always keep memo of suspicions and everything you did and mail it to yourself to establish credibility if disciplinary hearing a. Wrongful termination based on a law firm requiring an employee to violate professional ethics rule 1. or fitness 2. the law infers that you knew about it.1. Applied very narrowly – only when lawyer would be required to report another lawyer and firm threatens to fire or fires person  not just any 9 . Reasonable lawyer would have more than a firm opinion that conduct in question more likely than not occurred i. Obligations to self.3 tells you that you have to do something. Devised a new cause of action available only to lawyers – i. Where there is willful blindness. but must report known misconduct i. If you want to use it in such proceeding. not just leave it 1. (c) Rule does not require disclosure of information otherwise protected by Rule 1.

Subordinate lawyer does not violate Rules if lawyer acts in accordance with supervisory lawyer’s reasonable resolution of an arguable question of professional duty i. What do you do with regard to your obligations to your client? a. What do you do with regard to your own personal interest? a. Lawyer is bound by the Rules. The obligation of self-regualtion imposes corresponding duties in the exercise of that power. 10 . Lawyer says it is factually dissimilar so you don’t have to  this is a reasonable resolution of an arguable question of professional duty ii.At this point you still don’t KNOW whether there has been violation of the Rules. notwithstanding lawyer acted at director of another person 2. IE – there is a duty to report contradictory law to the court. 1. 2.violation b. Document your actions to satisfy that you took adequate steps to investigate. Lawyers are protected from termination for filing mandatory reports under Rule 8.” as lawyer is also officer of court who is responsible for professional obligations c. You find a case and ask your superior if it should be reported to the court [you think it should]. The profession has been self-regulating. Courts take the obligation to report misconduct seriously (a lawyer can be disciplined for NOT reporting) i. Maintaining the integrity of the profession ii. Lawyers have a direct interest in perceiving trust.2 – Responsibilities of Subordinate Lawyer 1. For the sake of the saving the reputation of lawyers. Some bigger firms have ethics committees that the L can anonymously report his concerns.3(a) C. D. Reporting Misconduct by Another Attorney 1. 1. Lawyer employment relationship between lawyer and firm is “distinctive.. Arguable question of professional duty.the partner assuring you that “everything is fine” does not satisfy your duty to report. Rule 5. What rationales can be given for imposing a duty on lawyers to report misconduct by other lawyers? i.

Can be taken into account as far as mitigating consequences but still subject to sanction 3. Disciplinary action – rare unless egregious conduct 1. Whether it is feasible to refer the matter to. Special circumstances are irrelevant in determining a violation [ie – personal crises] a.CRIMINAL CASES – CLIENT-LAWYER RELATIONSHIP: COMPETENCY A. Appears in the Law Journal vi. This requires the legal knowledge. 4. Complexity and specialized nature of matter ii. The lawyer’s training and experience in the field in question iv. Specialized skill is usually NOT required – i. Interim Suspension.imposed on a lawyer immediately where there is a perceived public threat. To enforce duty of competence – (THREE WAYS) i. Preparation and study lawyer is able to give the matter v. AND preparation reasonably necessary for the representation” 2. The lawyer’s general experience iii.enough for the disciplinary authority to impose sanctions 2. thoroughness.1 – Competence AND FEES 1. or consult with.usually where lawyers are 11 . (From Least severe to more severe) i. skill. Community Service v. Rule 1. Continuing Legal Education iv. Whether the lawyer spend the time and effort to handle the matter. Warning ii. ***Single incident is sufficient. “A lawyer shall provide competent representation to a client i. Every lawyer capable of competence either through study or association 1. Public Reprimand/Admonishment 1. Requisite skill is determined by – i. a lawyer of established competence in the field 3. Lack of knowledge or skill really means failure to seek it a. Monetary Fines vii. Private Reprimand iii.

What would a reasonable lawyers have done in the same circumstances c. In that case. Expert testimony should be presented. 2. Must reapply to have suspension lifted and submit evidence of good character when time is up ix. Breach of duty of care – the standard: competence normally exercised by attorneys in similar circumstances i. Malpractice action 1. Intentional tort (Fraud. the defendant must obtain reversal of his conviction as proof of actual innocence 3. must make motion to highest court in state and show – a. the malpractice suit will be stayed 12 . Good moral character ii..). Always followed up full investigation and hearing into lawyer’s conduct viii. If you want readmission. Full suspension 1. so essentially becomes two trials in one 1. Cannot practice 2. But for causation i.involved with alcohol or drugs. A criminal defendant must prove that he was actually innocent of the crime of which he was chargd to recover against his lawyer for malpractice. even if the defendant has not yet obtained postconviction relief. breach of K 2. Duty of care to clients [and 3rd parties intended to benefit from attorney’s representation] i. Contrition b. 1. Basically have to prove that you would have won the case. breach of fiduciary duty. In addition... Finally the defendant must file the malpractice suit within the appropriate statute of limitations. Disbarment 1. Reformation [underlying problem is gone] c. Misrepresentations. b. Negligence – Elements of Neglience a.

2. Can be used to set aside convictions. Ineffective assistance of counsel claim. ii. Washington – a.a probability sufficient to undermine confidence in the courtroom. Lawyer is not a party to action a. 2-prong test that defendant has to show to get a new trial i. Lawyer’s performance fell below an objective standard of “reasonably effective assistance”.” a. but for counsel’s unprofessional errors. d. Client suffered prejudice in the sense that verdict was probably affected by lawyer’s incompetence 1.cannot be speculative **Ineffective assistance of counsel can be used as a basis of a malpractice suit. Many decisions [ie – don’t call a witness] are tactical and not below standard a. “Strong presumption” that the counsel’s conduct was reasonable. Available only to criminal defendants a. Court presumes prejudice in certain situations – 13 . iii. Defendant would have faired better in trial or appeal but for attorney 5. 4.” whether or not attorney is appointed or hired 3. AND 1. 6th Amend guarantees defendants “the assistance of counsel”  interpreted as “effective assistance. Criminal defendant bringing a suit against the state to reverse the conviction but the lawyer will try to protect his reputation. Courts give great deference to tactical decisions of attorneys in these cases b. 2. Strickland v. Must be causal relationship between professional failure and injury to client a.pending the outcome of a postconviction proceeding. “The defendant must show that there is a a reasonable probability that. Damages – most prove the value of underlying action. the result of the proceeding would have been different. under 6th Amendment 1. Reasonable probability.

Whether and to what extent client would be responsible for costs. This is a debate about: Tension. Whether fee is fixed or contingent 1.5 – Fees 1. Desirable to furnish client with at least a simple memo or copy of fee arrangement that states – i. Factors to be considered in determining the reasonableness of a fee include – i. Likelihood that acceptance of this particular employment will preclude other employment by L iii. Comment 2 – a. Fee customarily charged in locality for similar legal services iv. Nature/length of professional relationship with client vii. Division is proportional to services performed by each or each lawyer assumes joint responsibility 14 . labor. (e) Division of fee between Ls not in same firm is allowed only if – i. Remedy  new trial Legal Fees B.ideal that lawyers have to serve the public with the realty that lawyers have to make a living. Usually failure to raise certain defense or call certain witness c. difficulty and skill required to perform legal service properly ii. novelty. Basis. Time. Defense counsel’s representation is so deficient that the proceedings could not reasonably be considered a true adversarial process [ie – attorney is sleeping. Rule 1. Defense counsel fails to follow up on defendant’s instruction to file appeal c. reputation and ability of L viii. or total amount of fee iii. C. rate. Amount involved and results obtained v. Experience. Conflict of interests b.a. Time limitations imposed by client or circumstances vi. expenses or disbursement in course of representation 2. General nature of legal services to be provided ii. (a) A lawyer shall not charge or collect an unreasonable fee or unreasonable expenses. Is the practice of law a profession or a business? 1. doesn’t make opening or closings] b.

b. cannot bill double 5. you are agreeing not to take on any other business that will take away from duty to diligently represent client  give up right to take on excessive business and right to take on any business that might conflict with client’s business 4. Total fee is reasonable 3. 5 types of fees i. If you’re paid for travel time and you work while traveling on plane.000 up front. Determine what % of overall job was completed based on lawyer’s good faith estimate ii. Flat 1. Fact witness cannot be paid appearance fees but can be paid expenses 7. Saves administration time. Expert witness fee cannot be contingent on outcome. 2 options – i. What happens if the client terminates the flat fee lawyer before the job is done? a. Why charge flat fees? a. The lawyer gathers some documents. regardless of time it takes 2.ii. in writing iii. Must be partially refundable if lawyer does not finish job a. When you take on a client. Fees beg the question  this is a profession or business?  duty to serve public but also make a living 6. Client agrees to agreement and share for each lawyer. prepares some necessary papers. Lawyer will charge by hour for work done and refund whatever is left 1. Suppose a lawyer to do a house closing for a flat fee of $1. “Volume” business 4. b. Travel – i. Lawyers charge for a given service. Requires agreement saying this is how we will proceed if early termination  defeats point of flat fee 3. Low flat fees attract clients c. ii. Hourly 15 . but can pay appearance fee and expenses ii. Paying for witnesses i.

5(c) – Must be – a.clog the court system b. if recovery.1.cannot bill for the same hour. % that shall accrue to lawyer in event of settlement. After conclusion of matter. signed by client b. In writing. Poor people could bring lawsuits without out of pocket expenses 3. Cannot bill for research already did 2. Must clearly notify client of any expenses for which client will be liable whether or not client wins d. the lawyer is obliged under the rules of professional responsibility. Weaknesses – a. Cannot bill for time that another client is already paying you for. remittance to client and how it was determined 16 . Whether such expenses are to be deduced before or after contingent fee is calculated c. a. No recovery = no fee b. Weaknesses – a. Most common in personal injury cases 2. Lawyer receives a set percentage if case is won. Encourages lawyers to accept subpar settlements to avoid risk of losing fee by going to trial c. 5. 4. trial or appeal ii. Contingent 1. Economic incentive to work a lot b. 1. Unjustly enrich lawyers who charge high contingent fees [usually 1/3] even when liability is clear and monetary recovery is certain 4. Lack of mentoring d. ABA requirement. including – i. Advantage a. Litigation and other expenses to be deducted from recovery iii. Penalizes productivity and promotes inefficiency c. Bill only for the time earned 3. Rather than looking to profit from the coincidental hours. L must give client written statement stating outcome and. Encourage “nuisance suits”. Decreases pro bono work iii. State method by which fee is to be determined.

The lawyer and client negotiate the value of a project at the END of a matter i. Public Policy to secure reconciliation b. Public Policy – disincentive for lawyers to push for plea bargain. Matrimonial cases for securing divorce or amount of alimony or support or property settlement in lieu of alimony or divorce i. Reverse contingency fee – a. 6. Lawyer unilaterally decides value at end ii. Essentially a negotiated flat fee b. Typesa. Hybrid 1. the formula will be applied iv. however. Only occurs when things are unknown iii. 1. Take part of what lawyer saved client [ie – knock IRS bill down] iv. IE – “contingent hourly fee”  L charges hourly rate and client pays 17 .5(d) – Prohibited in – a. Client is billed based on value of work to client a. Essentially. it's a type of contingency fee arrangement 3. Combine 2 or more of the above a. Criminal cases i. Environmental and civil rights cases i.5. Lawyer and client negotiate the value of a project at the BEGINNING of a matter i. Value Billing 1. The attorney charging the value of the work to the client. Usually in – a. rather than simply amount of hours or total amount of recovery 2. Ineffective assistance of counsel claim usually fails on ground that there was a contingency fee agreement because doesn’t mean lawyer was necessarily conflicted ii. a formula in place so that if the lawyer and client cannot agree. Lawyers invest enormous amounts of hours but nominal recovery v. There is usually. Used by courts when awarding fees in fee-shifting statutes 4.

Didn’t return unearned fee i. Fee is earned when paid because attorney is entitled to the money regardless of whether he actually performs any services 2. Courts presume that a retainer is a special retainer – 1. When fees are paid in advance. Put in a trust account if advance payment a. Here. Didn’t put advance fee into trust account c. Contacted P to see if he would settle case before resolution of 18 . d. Attorney must show by a “convincing preponderance of the evidence” that it is something else 3.15(c) – Safekeeping Property i. General retainer – a. Rule 1.1] e. Must be – 1. Lawyer did not provide an accounting of fees. Special retainer – a. Payment of funds for a specific service i. Cannot be left to discretion of attorney when fees are earned  explicitly put in agreement to avoid lawyer taking money before client thinks it is earned ii. Didn’t respond to disciplinary charges [Rule 8.if he wins but hourly rate is higher than normal to offset risk of no recovery vi. Apland 1. Fee to make legal services available when needed during specified time i. Nonrefundable special retainers are void as unethical 2. Nonrefundable special retainers are unethical and void b. must be put into client trust account and can only be withdrawn by L when fees are earned or expenses incurred ii. Refundable a. Apland – a.

Factors to be considered to determine are: a. You must keep your clients money separate in trust accounts. A violation occurs even if the lawyer was merely negligent.15(a). This can be considered obstructing justice 1. This is a per se offense.8(d) – Literary or Media Interests in Case 1. current rule.5. Prohibition against commingling funds (you can’t keep your money together with your clients. Novelty & Difficulty c. Disciplinary authorities take these violations very seriously. provides only general guidance a. Results Obtained v. a. Rule 1. Skill Required d. Preclusion of other employment by attorney ii. “Hands off” approach to client after disciplinary action is initiated  can ask judge or hearing officer if you can contact client vii.e. (a) L shall hold property of C or 3P that is in L’s possession separate from L’s own property i. (b) – Safekeeping Property 1. lawyers fee shall be reasonable 2.disciplinary matter i. Time Limitations vi. Matter of Warftia – 19 . (b) Unless for the sole purpose of paying bank service charge 2. Nature & Length of Relationship with Client vii. Experience & Reputation of Lawyer viii. Fee customarily charged in the Locality iii. i. Are there limits on the amount an attorney can charge? 1. Rule 1. Rule 1. Whether Fee is Fixed/ Contingent viii. Time & Labor b. ALSO: i.. Amounts Involved iv. L shall not make or negotiate an agreement giving L literary or media rights to a portrayal or account based in substantial part on information relating to litigation a. Prior to conclusion of representation. If you take a “security interest” in anything from media revenues client might earn in the future  can argue ethical but very close to line ix.

Fordham was a very experience senior trial attorney with impressive credentials. Reasoning: a. Commingling funds is per se offense b. Phleger & Harry v Telex 1. Clark was an acquaintance of attorney Fordham and went to speak with him about the case. novelty. Procedural history a. If petition's filed and Telex achieves a settlement or wins judgment. Matter of Laurence Fordham 1. Result:$1M xi. Fordham also explained that he worked on a time charge basis and that he billed monthly. For all this work.a.$125/hr. Facts: Fee Arrangement. Clark complained to the Board of Bar Overseers that the fee was excessive. 25k retainer. Fordham charged $50. Went to the Supreme Court. Three other attorneys offered to represent Clark between $3k through $10k. L borrowed money from C’s trust account of advance fee payment before he earned it  disbarred x. vodka in car.Board found in favor of Fordham 6-5. then this is the full fee. and skill required for the case b. Fordham then. the fee is billed at an hourly rate . 3. Brobeck. which reversed the Board's decision. however. Reasonableness of the fee . then additional fee is 2. If case settles before petition is filed. failed two breathalyzer tests.022. The time spent by fordham exceeded what a prudent 20 . Facts: Timothy Clark is arrested for OUI. Represented Clark at trial which ended in an acquittal. If writ is denied & no settlement. failed sobriety test.difficulty. Holding: The contract between Telex and Brobeck was not so unconscionable that no man in his senses and not under a delusion would make it on the one hand and as no honest and fair man would accept it on the other 3.25 for 227 hours of billed time 2. Fordham told Clark. Successfully moved to suppress the breathalyzer results. Here. Violation occurs even if L is only negligent [ie – wrote check from wrong account] c. that he had never represented anyone in an OUI case and never tried a case in District Court.

Reasonableness of the fee iii. $1M for low amount of work 2. 3.experienced attorney would spend on an OUI case even considering a novel suppression i. Is there a double standard here? a. Defendants default on payments to lawyer. not the defendants personally. attorneys for the rich. Payment of legal fees is secured in part by a mortgage on their personal residence. Each lawyer must be fully liable for mal practice. not in this instance. professional discipline. Plaintiff lawyer sues for recovery and loses in trial court. Moses Lasky v Laurence Fordham 1. The debt would have been owed by the corporations. Petit-Clair v. The total fee must be reasonable. and court sanctions. Reasoning: A lawyer shall not receive a security interest adverse to a client without first advising the client to seek independent counsel.5. Lawyer sues defendants to recover fees via the mortgage. Holding: No. and thus the agreement is invalid. Clients should not pay for education of a lawyer ii. 2. xiv. a lawyer cannot be compensated for assuming an entirely passive role. The fees split has to be proportional to the services performed by each lawyer. etc. Can’t simply punt a client. Nelson 1. The client received no independent legal advice regarding the advisability of the agreement. What is customarily charged in the locality for similar legal services? iv. $50k too high 3. Customary fee is $15k? xii. Issue: Whether a mortgage used as a method of securing payment of lawyer fees is ethical. Splitting Fees: 1. Facts: Defendants hire plaintiff lawyer to represent their businesses as plaintiffs in a lawsuit. One set of rules for elite law firms. 21 .?And another set for attorneys for average people? xiii. According to MR 1. 4. Client must agree to the split in writing and the writing discloses the share each lawyer will receive. Plaintiff lawyer appeals.

A lawyer cannot write a check on a client trust account for personal OR business expenses D. This is a per se offense. (3) in such a way as to be the proximate cause of the client’s damages. Issue: Did an attorney-client relationship exist? 3. Statute of Limitations expired. DEPOSIT TO TRUST ACCOUNT ---> PAYMENT OF PROCEEDS TO CLIENT --> DEPOSIT OF LAWYER'S PORTION TO BUSINESS ACCOUNT iii.says no casedoes not get back to her. Disposition: Contract giving mortgage to secure payment of lawyer fees is void. 2. Attorney-client relationship was formed when the lawyer gave advice (that he believed that there was no case) He was negligent in not investigating further whether the case has merit. Two. ii. she was barred from brining suit. 4. Scope of Representation 1.and thus independent counsel would likely have advised the defendants against entering into the agreement. Must be deposited in trust account FIRST ii. Comingling funds 1. Attorneys are required to exercise extreme care with client funds and not mix them with personal funds 2.money is taken before fees are earned b. A prudent attorney would have suggested to seek other counsel and inform her of the statute of limitations. (4) and but 22 . Holding: Yes. Speaks with his partner.$10.Settlement proceeds i. Togstad v.000 retainer paid . 5. Formation of Attorney Client Relationship i.no magic words. Two primary situations where this happens a. An attorney client relationship can occur in a number of ways. Rule: Malpractice consists of (1) an existing attorney-client relationship. One. She sues for legal malpractice. a violation occurs even if attorney was merely negligent 3. Vesley – 1. Facts: Attorney said “I don’t think we have a case (medical malpractice) but I will check with my partner. xv. (2) in which the attorney acted negligently.

ii. MR 1. The” reality” of the attorney client relationship is based not on what the lawyer believes but what client believes.Allocation of authority between client and lawyer 1. Engagement Agreements i. Engagement agreements could however contain an arbitration clause. Rule divides into two categories.8 (h). subject to the rules of contract law. 3. 2. Engagement agreements limiting the scope of lawyer’s liability for malpractice are Unethical and contractually unenforceable 2.the lawyer or the client? a. Then the lawyer will manage the day-to-day decisions 2.Contra proferentum iii. The lawyer has the burden of proof in clarifying whether an attorney-client relationship exists.you or the client? ii.2 . 3.the objective and the means 2. Takeaway: 1. MR 1. but are also governed by a number of special rules that apply because of the fiduciary relationship between attorney and client.lawyer agreements contracts. In the case that there are ambiguities in the contract.for the attorney’s acts the claim would have been successful 5. Cooperative Relationship: the client sets the overall objectives of representation and the attorney chooses the means for achieving those goals. The client specifies the problem in broad terms (I want you to represent me in the criminal case). 3.2 (a) – “a lawyer shall abide by a client’s decisions concerning the 23 . MR 1. Who controls the way a case is handled. If a lawyer has indicated that some steps would be takenthen the lawyer will be liable for not doing it 2. Allocation of Authority between lawyer and client i. Issues of authority can arise 1. Client.A lawyer may not enter into an agreement with the client prospectively limiting the lawyer’s liability for malpractice 1. Who decides which lawful and ethical measures the lawyer will take. How do we allocate power between the lawyer and the client? 3. the terms of the agreement will be read against the lawyer.

the lawyer’s action binds the client. The lawyer must abide by the clients decisions about objectives but need only to consult with the client on how to pursue those objectives. 2. as required by Rule 1. pleading guilty in a criminal case. Although clients are entitled to make decisions regarding the objectives of representation. HOWEVER the lawyer’s authority to make decisions can be limited in several ways. 1.2 (a) i. In civil 1. for example specify that the lawyer may not employ an expert witness without the clients approval.” a. the actions of the agent bind the principal when the agent acts with implied or apparent authority 24 .objectives of representation and. The lawyer’s engagement agreement could. b. Whether to settle a matter ii. economic. i.1 – “a lawyer may refer not only to law but to other considerations such as moral. When a lawyer proceeds with express authority. whether to accept a plea bargain. MR 2. Ex. social. Lawyers have broad authority to make tactical and strategic decisions.ex. c. Whether to enter the plea 2. Whether the client will testify b.4. lawyers have a duty to counsel their clients regarding these matters. Under agency law. 4. Client bound to a third-party by virtue of an agreement or action taken by the lawyer. Whether to waive jury trial 3. A client may authorize a lawyer to make a decision that the client is entitled to make UNLESS the law requires the decision to be made personally by the client. iii. even if the lawyer acted without authority 1. Decisions solely for the CLIENT to make . In criminal cases. and political factors that may be relevant to the client’s situation. a. Clients’ right to make decisions regarding the objectives of representation DOES NOT mean that the lawyer must follow every decision that clients make. i.MR 1. shall consult with the client as to the means by which they are to be pursued.

Facts: Barnes was convicted of robbery and assault in New York and attorney Melinger was appointed by the court to represent him in his appeal.a. Termination of the client. Constitution grants accused the authority to made fundamental decisions on – 1. attorney has discretion on what issues to raise on appeal (lawyer has right to choose the means) b. Ex. Barnes 1. Rule of Law. Normally an attorney would have apparent authority to agree to a trial date. Barnes filed a habeus corpues on grounds of ineffective assistance of counsel (Strickland two prong test) 2. Discharge -Client has the absolute right to discharge an attorney. C has right to be unwise and to dictate which non-frivolous argues to raise  individual autonomy and dignity of client 4. The lawyer only raised three of them. The Sixth Amendment’s “effective assistance of counsel” standard does not require a courtappointed attorney to argue every nonfrivolous point raised by his client ii. Issue: Does an appointed defense counsel in a criminal case have a constitutional duty to raise every nonfrivolous issue suggested by the Defendant? 3.” i. Pleading. Court affirmed the sentence.” “to maximize the likelihood that the client will prevail in litigation. Barnes told the attorney to raise a number of objections. Contractual provisions that limit the client’s right to discharge the lawyer 25 . iv. 1. Majority: “requires that the lawyer support his clients appeal to the best of his ability. Holding: a. and whether or not to appeal 2. BUT.lawyer relationship: discharge and withdrawal i. Jones v. Dissent – i. regardless of cause. waiving jury trial.

Attorney would suffer unreasonable financial burden ii. Ex.reasonable value for their services. Misconduct. iii. b. Quantum meruit = Ratable portion of the contract that has been performed.16(b)(4). Withdrawal – 1. Quantum Meruit.are unenforceable. the stage of the case. breach of contract.seven situations in which a lawyer is allowed to withdraw i.” 1. Courts will consider the number of hours worked. noncooperation by the client. lawyer’s interests either personal or financial. Client discharges attorney. MP 1. ii. the difficulty of the case. Where ethical rule or law would be violated a. 1. the lawyer’s hourly rate. 2.16(b) . How should the lawyer be compensated if the client has discharged him? 3. MP 1. MP 1.16 (a) a lawyer MUST withdraw from representation if the representation will result in a violation of the Rules of Conduct i. Three situations where lawyer MUST withraw 1.a lawyer MAY withdraw if the client insists on conduct that the lawyer considers to be “repugnant or with which the lawyer has a fundamental disagreement.16(b)(5).allows a lawyer to withdraw if “the client fails substantially to fulfill an obligation to the lawyer and has been given reasonable warning that the lawyer will withdraw 26 . If the lawyer faces conflict of interest or if the client demands that the lawyer engage in illegal conduct. a. NOT a ground for withdrawal. Permissive Withdrawal: can be accomplished WITHOUT materially adverse effect to the client a. and the benefits received by the client. Client fails to pay fees 2. MP 1. Physical or mental condition materially impairs lawyer’s ability to represent client 3. Mandatory Withdrawal: (Not consentable) a. 2. 2. If the lawyer simply disagrees with the client’s decision.

2. The retainer agreement provides for such an interest 2. In terminating representation a lawyer must take reasonable steps to protect the clients interest from prejudice. Attorney’s Duty Upon Termination i. MP 1.” b. even if the withdrawal is mandatory rather than permissive.” ii.8(i) prohibits lawyers from acquiring a proprietary interest in the cause of action except for reasonable contingent fees and a “lien recognized by law to secure the lawyer’s fee or expenses. Retaining Lien: is the attorney’s right to retain client papers or other valuable client property as security for any unpaid amount the client owes the lawyer. Ex.16(d) 1. Liens i. Created by statute or by contract. i. Two types of lawyers liens1. Notice of application has been given to the other spouse 3. 5.a lawyer must obtain court approval to withdraw from representation. a. The time to file an appeal is expiring. MP 1. Lawyers may also enter into contracts with their clients in which they obtain a security interest or mortgage in the clients’ property to secure payment of their fees. 27 . When the matter is pending before a court. Lawyer may not foreclose a mortgage on a primary residence while the consenting spouse remains in the residence. Charging Lien: applied against the proceeds of any settlement or judgment for any unpaid fees or expenses due.the lawyer should first file the appeal and then file a motion with the appellate court to withdraw from representation. b. ii. The court grants approval for the application AND 4. NY – lawyers may obtain a mortgage or security interest to secure their fees ONLY when 1.unless the obligation is fulfilled.

Attorney’s own observations. ii. Documents 3. and the lawyer’s duty of fiduciary prevents lawyers from voluntarily what they know about a client or a client’s matter. A client 2. Secrecy/Confidentiality a. Arises from the rules of evidence iii.CRIMINAL CASES – CONFIDENTIALITY * Client’s Trust depends on two things: Secrecy and Loyalty A. Attorney. Rules of legal ethics ii. Secrecy refers to a L’s obligation not to use or reveal information relating to representation of a client i. Rules of Procedure c. 1. prevents lawyers from being compelled to tell what they discussed (orally or in writing) 1. Court decisions provide most comprehensive answer to this question ii. observations b. regardless of the source 1.Client Privilege. third parties. Three Branches: i. Duty of Confidentiality. This information can come from: 1. Information may come from client. document. Who is a client? i. Third Parties 4. Work-Product Doctrine. generally prevents lawyers from being compelled to reveal materials they created for purposes of litigation. agency law.rooted in the rules of ethics. Main Test: 28 .rooted in the rules of civil procedure.rooted in the rules of evidence.

only if you wanted to buy in 2. Is he a client? 1. If so. Expectation of confidentiality ii. The termination of the attorney-client relationship does not extinguish your duty of confidentiality viii. You run into him and he asks you to refer him to a patent attorney and you do. and the fact that you gave no legal advice are all relevant [not determinative] to show that he had no reasonable belief ix. Then you run into him again and he asks if you want to buy into his new venture. The fact that you were an investor. Someone just looking at your website without any direct communication iii. You read the docs and decide to buy in. Does this person believe she is your client? 2. Seeking legal advice b. THE death of a client does not extinguish your duty of confidentiality vii. Speaking to you in your capacity as a lawyer iii. Not really reasonable to infer relationship considering he didn’t ask for your advice on the venture. Must keep confidential information received from prospective client confidential and must decline representation of someone else if that confidential information would materially limit your ability to represent new person a. Confidential information from a prospective client – 1. Not reasonable – i. You say possibly and ask to see the documents.1. You must be clear and explicit about when representation begins and ends v. Hypo – You represent someone 10 years ago. He is sued and is claiming that you are on the hook as his attorney because you looked over the docs and he depending on you to make sure they were legal. that he was represented by another attorney. If there is proof that prospective client was not seeking legal representation but just trying to create future conflicts of interest [ie – H in divorce case calls all lawyers in town and reveals confidential information]. Judged from client’s perspective iv. Factors – i. Secrecy obligations last forever vi. is that belief reasonable in light of all the circumstances? a. then no fiduciary relationship arises and no duty of confidentiality 29 .

regardless of source [relating to representation] 2. Arises from: rules of legal ethics 3. Lawyer cannot – a. IE – you learn about someone’s assets while preparing divorce agreement  this is confidential information relating to representation ii.6(b) i. IE – interviewing someone about event is “relating to representation” v. impliedly authorized. Can violate duty of confidentiality by not disclosing exact information – 1.6(a) – Confidentiality of Information a. “Loose lips sink ships” iii. ii. Prohibits a lawyer from voluntarily using or revealing information that they know about a client or client’s matter. If someone is seeking the lawyer’s testimony regarding your client it is not an objection to say that I have a duty of confidentiality. Prohibited from disclosing anything at all relating to representation 1. contractual rights 4. constitutional rights. Basis in which substantive law? a.only to protect the client from the attorney VOLUNTARILY disclosing confidential information. Duty of Confidentiality 1. photos of 30 . Fiduciary duty. Rule 1. Voluntarily tell other people anything about a client without client’s consent or some other exception 5. Scope is enormous – i. IE – “dig deeper into investigation”  inferring that client is hiding something and violating duty of confidentiality d. Covers anything you might learn during course of representation iv.x. IE – cannot voluntarily reveal information about information learned from witnesses. 3 Branches of Protection – i. or permitted by 1. Includes conversation with secretary as agent of attorney b. Lawyer shall not reveal to others any “information relating to representation” unless informed consent.

Fee arrangements are not privileged 6. Anything protected by ACP is protected by 1.6] b. If you agree to accept someone’s civil case but not criminal. Applies when 5 “C’s” are present – a. Protected? 1.confidential Seeking counsel. Confidentially with i. but more narrow than 1. Death of client/termination of relationship does not extinguish duty of confidentiality 5. email [even if not marked confidential] c. Timing and purpose is crucial. Be compelled to reveal communications with a client 8.6 (Duty of confidentiality is more broader than ACP) a.6 2.Must be made for the purpose of seeking or providing legal advice or services. copy of plaintiff’s auto-maintenance book  but you can be forced to produce or testify about these things despite attorneyclient privilege because they are NOT communications iii. Arises from: Rules of Evidence 7. There must be intention that the communication will not be disclosed confidentially 31 . Prevents anyone from compelling disclosure a. all privileges would apply Relating to representation.Attorney client privilege Must be Written-Work Product ii. If C wrote letter and didn’t give it to anyone else but his attorney. Hypo – C wrote a letter after accident that confessed in great detail and never mailed it. Oral. 3. written. Stronger.accident. Lawyer cannot – a. Secrecy obligations last forever 4. Attorney-Client Privilege 1. Communicates i. Client i. driving record from DMW. You it in your file. everything you talked about is protected because they were a prospective client [also protected by 1.

Facts v. you are not allowed and have to sit down with C and explain that by law he has to respond 10. client mentions communication in deposition b. Includes conversation/phone message with secretary as agent of attorney e. Family member needs to assist the client ii. unless C expressly says you aren’t allowed i. This is not asking anything about what attorney and client said to each other b.a lawyer that allows a client to answer specific question on a deposition. Privileged by ACP because it is implied that they had to TELL you they weren’t taking your case 11. NOT selective  all or nothing  waived as to everything in a given subject d. The presence of a third party destroys the attorney client relationship UNLESS the third party is there to facilitate the attorney client relationship. IE – names. In which case. Paralegal. addresses of all people who saw P drinking. To obtain Counsel [legal advice] 9. Counsel [lawyer acting as a lawyer] i. Either client or attorney intentionally waives privilege i. Waiver – a. Impliedly authorized under 1. FACTS are not protected i.6 to answer. c. IE – attorney turns over documents.1. produce all documents containing info relating to accident or party before accident  attorney must answer these questions 1. Can be accidental. Settlements – i. “Did other Ls refuse to take your case?” a.that information is no longer privileged. Implied authority that attorney can reveal confidential 32 . Communications – a. what color was light.Ex. even mentally d. Only in presence of client and lawyer unless someone is there to assist in representation OR family member there to assist person.

Hypo – a. Lawyer is sued for malpractice or client wont pay. Not privileged. P’s attorney subpoenas client’s record book.information that will advance settlement 12. After case is over. Not privileged because not for purpose of getting legal advice ii. Whatever conversation you had between each client is no longer privileged and anyone can inquire into communication 14. Client uses attorney’s services to commit a crime or fraud i. i. attorney can defend himself and communications are waived if he responds to charges [ie – falsifying evidence] 16.privilege exists among all of them b. Depends on client’s intent to commit a crime. If dispute arises. not attorney’s knowledge ii. If judge orders you to produce it. attorney-client privilege is broken between all parties i. Just a physical act of handing over preexisting evidence 17. Object to it and assert privilege i. Subpoena – a. Self-Defense Exception a. you can produce without violating ethical duties because there is a court order 18. Crime-Fraud Exception – a. Can corporations claim ACP and 5th Amendment privileges? 33 . 2 clients are being represented by single attorney. “Advice of Counsel” Defense a. Confidential because it relates to past representation b. Applies to future crimes not past crimes 13. Entity Clients a. Joint Clients Exception – a. Client gave his L this book during representation. If client says they did something not knowing it was illegal because attorney said it was okay [client says he did something on advice of L]  waive privilege 15. client tells attorney he lied about everything i.

Acts or omissions in the matter bind corporation b. can attorney interview all employees of company that were present during fall? ii. Team 1 [who is a party?] – i. even if conversations are initiated by attorney. Courts of Appeals – 1. Yes b. are privileged as long as conversations are for the purpose of gathering information necessary to give or implement legal advice to corporation 1. Some – 1. not status of communicator a. Acts or omissions can be imputed to corporation c. Trial court and appellate division said all employees are parties for purposes of representation iii. President and CEO always c. Criticized as being too narrow d. Westinghouse – ACP protects corporations only if person who communicating with lawyer is a member of control group – elite group of corporate officers and employees who actually control corporation and make its policies [abandoned in most jurisdictions] 1. Criticized as being too broad e. and employees or just some? i. falls from scaffolding. Upjohn – conversations between corporate attorney and any corporate employee. Who are implementing advice of counsel 34 . Focuses on nature of communication.i. Limits privilege to those who have control over entity a. Employees are parties/no communication if – a. Facts: employee of construction co. Can an attorney who represents a corporation claim ACP for communications with all officers. Control Group Test – i. Nieseg v. Subject Matter Test – i. directors.

not people running involved. Prevents discovery of materials in anticipation of litigation. Includes documents prepared by party [ie – letter to L] 2. Subject to waiver. conclusions. Virtually immune from discovery. 5. Substantial need of materials. Lawyer cannot – a. Information recorded by L [or L’s agents] because of litigation ii. opinions. a. 6. AND 2. Unable to obtain without “undue hardship” the materials or “substantial equivalent” by other means b.court might conclude that work product protection no longer applies. So. Legal research. legal theories of L or agent concerning litigation 1. No rule prohibiting contacting former employees. to witness 35 . Arises from: Rules of Procedure 3.if lawyer shows opinion work product to witness. IE – “I don’t think this witness is credible” ii. Work-Product Doctrine 1. cannot contact those people v. etc. FRCP 26(b)(3): discoverable if – 1. not people acting on direction of counsel a. notes on interviews. iii. Be compelled to reveal written material prepared in anticipation of litigation 4. Must be tangible [not communications] b. Hickman v. recordings.courts will not compel opinion work product. Only mere witnesses are left – not people running company. etc. Not every employee is covered 1. Written impressions. memos about legal strategies. Includes phone message taken by secretary as agent of attorney c. Taylor – a. Only people who just saw happened vi. L runs risk of waiving by showing memos. for purpose of communicating with employees of entity.iv. unless things are protected by ACP iii. Opinion WP – i. Ordinary WP – i.

Disclosures are required by rules/procedures 2. MA requires attorney to use the information but return it to sender based on duty to be a zealous advocate d.6(a) – i.0(e) – a. Disclosures will help client.a. court can conclude ACP is waived B. IE – by asking witness to confirm your impressions or sign a document that what you recorded is correct 7. Other duties  don’t act fraudulently b. L MAY reveal information relating to representation to the extent lawyer 36 . litigation will be expensive ii. IE – if you disclose now.4(b) – Respect for Rights of Third Persons i. Agreement by a person to a proposed course of conduct after L has communicated adequate information and explanation about material risks of and reasonably available alternatives to the proposed course 2.6(b) – Duty of Confidentiality Exceptions i. Rule 4. Implied authority 1. Informed consent 1. California prohibits L from using it for C’s advantage c. If no reasonable steps. Inadvertent disclosure a. Rule 1. material advantages and disadvantages. not hurt a. Must tell what you are going to disclose. Rule 1. Lawyer who receives a document relating to representation of L’s C and knows or reasonably should know that the document was inadvertently sent shall promptly notify sender 1. Never implied authority to hurt client b. ACP not waived if attorney takes reasonable steps to make sure this doesn’t happen i. Never implied authority to override client’s instructions not to disclose b. Rule 1. Exceptions to Duty of Confidentiality a. will probably settle and if you don’t. and alternatives [what will happen if you do or do not disclose] a. facts giving rise to situation.

Prior acts from which there will be subsequent damage 37 . Must disclose in way that is least damaging to client ii. IE – attorney is retained to get a mortgage using fraudulent means b. (b)(3) 1. e. To prevent reasonably certain death or substantial bodily harm a. Act doesn’t have to be client’s i. Disclosure can be no broader than necessary to prevent the future harm. Disclosure is NOT mandatory. May reveal future plan. This applies to prevent the crime from being committed iv. IE – could be a witness plotting to blow up school and has done so in past 1.MAY disclose f. To prevent. Hire an ethics lawyer but no real concrete answer iii.reasonably believes is necessary to… 1. What if you learn from a client that he committed a murder that someone else is on death row for? i. (b)(2) 1. but not past because harm already happened b. rectify substantial injury to financial/property interests of another that is reasonably certain to result OR has resulted from client’s commission of crime or fraud AND client used L’s services to further crime a. But there is a clearly innocent individual who will die a. This applies after crime has been committed to prevent future damage i. To prevent client from committing crime or fraud that is reasonably certain to result in substantial injury to financial interests or property AND client used lawyer’s services to further crime a. (b)(1) 1. Does not have to be criminal [can be violation of environmental ordinance] c. Not supposed to reveal past crimes because no reasonably certain death or substantial bodily harm 1. mitigate. Does not have to be imminent consequence d.

9(c) – 1. malpractice claim] a. Attorney must confer with client and tell client about disclosure and the effects 3. False evidence is offered to tribunal or lawyer knows client or witness has committed perjury a. To comply with other law or court order a. Rule 3. L knows that a person is intending to engage. (b)(6) – 1. Other Exceptions – i. is engaging or has engaged in criminal or fraudulent conduct related to proceedings before a tribunal a. Remedy situation in some way if L knows perjury is coming. (b)(4) 1. Notify court that perjury has taken place if done already ii. 2. IE – subpoenaed to testify in grand jury hearing vii.3(b) – 1.v. Establish a claim or defense on behalf of L in a controversy between L and C [ie – fee dispute. (b)(5) – L’s claim or defense 1. Can seek guidance about whether something you are doing is compliant with rules i. Disclosing information to secure such advice is usually impliedly authorized for lawyer to carry out representation vi. Information became generally known after representation ii. including. if necessary. Establish a defense to a criminal/civil charge against L based on conduct in which client was involved 3. Without this the lawyer is defenseless. Respond to allegations in any proceeding concerning L’s representation of C a. To secure legal advice about lawyer’s compliance with Rules a. Rule 1. banking laws 2. disclose that it will occur iii. Attorney is required to – i. Sarbanes-Oxley. Required disclosure 38 . Rule 3.3(a)(3) – 1. Discretionary but can be subject to violation of law or court order and be held in contempt c. SEC.

Contraband. Given to you by a third party 39 .13 – 1. Difference between doing the right thing and it having wrongful consequences and doing the wrong thing e. No – never have duty. Improper for you to assist him in obtaining bail? 1. Hypo – client tells you he is guilty of killing a girl and wants to get out of jail to hide the body. 6th Amendment: undermines effectiveness of attorney C. Do you have duty to disclose? 1. Rule 1. duty to report up the chain of command d. How the L obtained it 1. When a client is an organization. Given to you by a client 2. No – you are not presenting perjured testimony. Separation of powers: inherent rights of courts to regulate attorneys 1. a clear violation of law may be revealed to prevent substantial injury to organization a. But the act you are performing is not in and of itself wrongful b. instrumentalities. IE – witness tampering b. Situations that integrity of proceeding is impeached iv. L may report out of organization 2. Required to report internally within organization  up the ladder i. What constitutional issues if state passed a law saying lawyers must reveal confidential information about past crimes? i. Ordinary items that implicate a client ii. NO discretion to reveal past acts ii. Willful blindness applies  once attorney realizes there is wrongdoing. 5th Amendment: basically requiring an attorney to tell that his client is guilty iii. Types of Physical Evidence & How did the Lawyer come to Possess it i. This could be legislature violating separation of powers ii. i. Attorney Client Privilege and Physical Evidence a. Three categories: 1.i. This is in the past. even though it might end up in him doing something wrong a. If this does not rectify situation. just defending legitimate claim for bail. Ordinary items directly involved in a crime 3. or fruits of a crime 2. just discretion a.

by altering or removing physical evidence. Turn it over to the police or prosecutor? b. just left them there 4. Ryder’s client told him that there was evidence in a safe deposit box and Ryder took the evidence and moved it to his own box so he could make an argument to suppress on grounds of attorney client privilege 2. Evidence that you find on your own 4. Preserve it in your office? 2. 3. People v. Send it to an expert to have it tested? 5. which is the product of a privileged communication [ie – D tells you where wallet is hidden] cannot be admitted as evidence at trial unless defense. Options 1. Court said – a. What is not covered? a. it becomes not covered ii. Meredith – 1. Examine it and give it back to your client? 3. Ryder taking initiative to collect and hide evidence b. Once Ryder moved the evidence. In re Ryder 1. That you hear about but don’t see a. Evidence that you see but don’t touch a. An observation by defense counsel or his investigator. Ryder’s conduct was NOT encompassed by attorney-client privilege b. Refuse to touch it or look at it at all? 4. Anything D told Ryder – including knowledge of what was in the box b. It is an abuse of the lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime c. Destroy it? 6.3. IE – client gives you tour of crime scene 5.serving as accessory after the fact. Handling Physical Evidence i. Ryder made himself an active participant in the crime. If Ryder saw the materials and never moved them. IE – someone tells you there is evidence but you don’t go find it iii. What is covered by ACP? a. has precluded the prosecution 40 .

1. The L cannot tell the client to conceal it. NY is mixed in this area e. ii. Anonymously report it 41 . The L should take careful measures to ensure the protection of the C ii. they have an obligation to turn it over to the authorities later BUT the communication that led to that discovery will NOT be privileged. Criminal defense lawyer must give authorities physical evidence that lawyer receives from client if evidence is material to the case. so a tactical move by defense attorney is to hand it over to the prosecutor. you have to disclose because your fingerprints are on it so you altered the evidence 2. The courts have difficulty.must report it. Defense lawyers in criminal cases are prohibited from hiding evidence in their offices (or anywhere else) ii. if the defense attorney takes possession of the evidence. The attorney client privilege applies to communication between attorney and client a. If the prosecutor received it from the defense attorney and the attorney cannot stipulate where he obtained it from. If there is a high probability that the evidence will be destroyed by the client.the prosecutor will not be to lay a foundation. however.from making the same observation a. If a defense lawyer actually takes possession of physical evidence. c. Prosecution Duties after Obtaining Evidence from Defense Counsel i. How can the prosecutor introduce the evidence to the jury? 1. 2. If you pick it up. The mere observation of the evidence which is a result of the communication is protected. Actually taking possession is DIFFERENT from merely knowing about it c. he/she must turn it over to prosecution/ police 1. Delivering Evidence to the Prosecution i. however if the evidence is altered or moved so that the prosecutor cannot obtain that same information. iii. How should the L turn over the evidence? i. So. b. in determining exactly what the prosecution can say to the jury about the source of the evidence. d. the ACP is not applied.

iv. Report it through another attorney v. NO attorney client privilege attaches when a third party turns over the evidence to the lawyer.

f. Rule 3.4 – Fairness to Opposing Party and Counsel

i. (a) A lawyer shall not unlawfully obstruct another party’s access to evidence
or unlawfully alter, destroy or conceal a document or anything else having potential evidentiary value OR counsel OR assist another to do so

1. Rule 1.2(d) – L shall not counsel C to engage in conduct that L knows to
be criminal or fraudulent  also applies if L counsels C in destroying evidence

ii. In most states, destroying physical evidence is a crime even before subpoena is
issued 1. There must be a reasonable belief that a case is pending.

iii. Federal law – 1. Intentional destruction of evidence after subpoenaed is issued is an
obstruction of justice and/or criminal contempt

2. If destroyed before subpoena is issued, only a federal crime if – a. Evidence is relevant to pending grand jury trial or criminal
investigation; AND b. Destruction was done with corrupt or evil intent iv. Destruction of evidence to prevent use at trial precludes that party from – 1. Later introducing secondary evidence to prove contents, but DOES NOT bar the opposing party from doing so v. Inferences –

1. Intentional destruction of a document to prevent its use at trial, even
when not illegal, creates an adverse inference that party’s whole case is weak a. A skillful lawyer can always explain a damaging document to a jury, but cannot explain a missing document. vi. Perjury –

1. Any questions asked of C under oath concerning destruction must be
answered honestly vii. Least detrimental way to turn over evidence – 1. Send anonymously

42

2. Hire an attorney to represent lawyer and have them bring it to authorities and have them invoke attorney-client privilege about who your client is g. ABA Standards for Criminal Justice – Standard 4-4.6

i. (a) Defense counsel who receives physical item under circumstances
implicating a client in criminal conduct should disclose location or deliver to law enforcement only: 1. (i) Required by law or court order; OR 2. (ii) As provided in (d)

ii. (b) Unless required to disclose, defense counsel shall return item to source from
whom it was received, except (c) and (d) 1. In returning, advise source of consequences of possession and destruction 2. Prepare written record of events but do not give source a copy

iii. (c) Defense counsel may receive item for reasonable time during which defense
counsel: 1. Intends to return to owner 2. Reasonably fears return will result in destruction 3. Reasonably fears return will result in physical harm 4. Intends to examine, inspect, or use item as part of representation

a. Return right after unless reason to believe it will be altered,
destroyed or someone will be harmed b. If retain, keep it in law office in a way that doesn’t impede law enforcement from getting it 5. Cannot return it to source

iv. (d) If item is a contraband, defense may suggest client destroy it if no pending
case or investigation AND not clearly in violation of criminal statute 1. If such is not permitted and defense counsel does not think he can reasonably retain the item, whether or not contraband, in a way that does not pose unreasonable risk to anyone, defense counsel should disclose location or deliver item to law enforcement 6 Golden Rules 1) Do not take possession of potential contraband, instrumentalities pr fruits of a crime or move or mess with evidence involved with perpetration of the crime a. Train your subordinates and your agents to do the same

2) Do not destroy or conceal, or advise a client to destroy or conceal any physical evidence and
train your subordinates to do the same.

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3) Warn clients or third party seeking to give you evidence, that if it is illegal or unethical to posses it , you may be required to turn it over to law enforcement and it may be admitted into evidence against them 4) If you possess contraband, instrumentalities or fruits of a crime- turn it over to law enforcement in a way that minimizes the revelation of client confidences and minimizes any adverse impact on the client. 5) Before taking action, research the applicable ethics rules and the local jurisdictional rules. After you have done your research and the results are inconclusive, consult with other counsel. 6) Document your efforts to legally resolve your situation to shield yourself and the client. j. Attorney-Client Privilege for Organizations a. The most difficult problems arise when a corporation, or any entitiy, is uspected or accused of corruption b. Who is your Client? i. Rule 1.13 – Organization as Client 1. When L represents an entity, attorney does not necessarily represent any constituent [director, office, employee, member, SH] or affiliated organization [parent/subsidiary/members of Trade Association when represent Trade Association itself] ii. Can an attorney who represents a corporation claim the attorney-client privilege for communications with all officers, directors, and employees, or just with some of them? And if only some, which ones? iii. Who owns the privilege?

iv. Control-Group Test- Attorney client privilege protects corporations only if the
person communication with the lawyer is a member of the control group”- the elite group of corporate officers and employees who actually control the corporation and make policies

1. Federal courts have abandoned this test instead adopted the test in
Upjohn

a. Weaknesses with the Test- Limits privilege to those who have
control power over entity i. Too narrow, because it fails to extend the privilege to some people who are speaking for the corporation (UNDERINCLUSIVE) v. Upjohn Co. v. US (Federal Test)

1. Upjohn was accused of making illegal payments to foreign 44

and at the same time avoid the over-inclusiveness of the broad subject matter test. Someone Else’s Initiative. Supreme Court ruling: a. Functional Approach a. but for their status as officers. 1. Conversations between a corporate attorney and any corporate employee. The employee knows that the purpose of the communication is to obtaining legal advice for the purpose of representing the corporation iii. Rule 2.Focuses on the nature of the communication.Privilege SOMETIMES applies IF: i. Is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corporate client. h. Lawyer shall exercise independent professional judgment and render candid 45 .Client Privilege ALWAYS applies when the Employee initiates b.. agents. Was the communication intended to enable the attorney to give legal advice to the entity ii. The communication was within the scope of the employee’s employment c. This excludes from the privilege communications from those who. The employee communicates with the lawyer with the direction of the employee superior OR is initiated by the lawyer ii. 2. not the status of the communicator. How do we avoid the under-inclusiveness of the control group test. Samaritan Foundation v. Attorney. are witnesses. or employees. i. are privileged as long- i. Question is Does this employee have information that is helpful in defending the corporation? vi.1 – Advisor i. Subject Matter Test (Upjohn). Goodfarb (The Functional Approach) 1. Subject Matter Test: b. It concerns the employee’s own conduct within the scope of his or her employment AND ii.2..

notwithstanding the fact that doing so will reveal the attorney-client confidence or subject the client into a devastating lose 2. basically try to figure out a way to deal with situation and expose client to least amount of negative effects i. An argument broke out and the defendant ended up inflicting a fatal stab wound to the victim. iii. ii. social. What if your client lies or plans to lie at trial? (not limited to statements -includes tangible things) 1. Perjury i. Does the duty of candor outweigh the duty of confidentiality? a. Facts. The majority concluded that the Lawyer’s actions amounted to a reasonable response to his client’s indication that he planned to give false testimony. Does the lawyer’s role as an officer of the court create a duty to prevent a fraud. An attorney is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law and should admonish the client about his duty to inform the court if the defendant perjures himself on the stand. 46 . Defendant’s attorney informed him that if he perjured himself on the stand. Holding. Defendant was found guilty of second degree murder. Nix v. Rule of Law. The right to testify (6th Amendment) does not give the right to falsely testify.The defendant and two others went to the victim’s apartment looking for drugs. He petitioned for a writ of habeas corpus and the United States Court of Appeals for the Eighth Circuit granted the writ. Whiteside initiated an ineffective assistance of counsel against the attorney.advice. Whiteside i. the attorney would have to inform the court of the deception.Lawyer acted within the scope of his duty. and political factors that may be relevant to client 1. This is an approach towards strategic model of lawyering  never tell L that he has to tell to comply with law. Lawyer may refer not only to law but other considerations such as moral. Defendant expressed to his attorney that he had to concoct a story the victim having a weapon in order to win on a theory of self-defense. economic.

Problem with the Narrative Approach. the L’s client. A Lawyer may refuse to offer evidence (other than the testimony of D in a criminal matter) that the L reasonably believes is false  regardless of C’s wishes i. (3) Offer evidence that lawyer knows to be false or fail to take reasonable remedial measures concerning material evidence offered by a lawyer. (2) Fail to disclose legal authority in controlling jurisdiction known to be directly adverse to position of client and not disclosed by opposing counsel a.1.3 – Candor Toward the Tribunal i. In a criminal trial must know that it is false because the D has a 6A right to testify [Nix] 1. Prosecutors should disclose more because have greater obligation to do justice d. Lawyer may put the client on the stand and ask questions that will illicit truthful answers and than if the client wants to lie – let him narratively testify without asking him questions. Duty to disclose adverse law. Supreme Court cases are controlling everywhere  applicable to state courts through 14th Amendment b. 1. or L’s witness that the L learns is false. Allow C to testify even if you know it is going to be false  don’t ask questions so you don’t make arguments based on wrong facts b. disclosure to the tribunal a. 3. if necessary. circuit cases are not controlling c.Lawyer cannot use the false testimony form a narrative in his closing argument.3 comments say that this is mitigated by cross ii. 47 . NOT adverse facts 3. (1) Make a false statement of fact or law or fail to correct such made by L 2. Doesn’t involve L in perjury c.applied the Strickland two prong test j. Rule 3. If in state court. Supreme Court. (a) A lawyer shall not knowingly: 1. including. NY – Free Narrative a.

then the lawyer must put the client on the witness stand and i. Civil Matter. Everyone else in the world must refer to the lawyer judgment unless the lawyer know s that the witness will lie.Reasonable remedial measures before L presents – i.3 – Before Testimony is Offered 1.No exception to Rule 1. Rule 3. Explain duty – might possibly have to disclose. Criminal Matter .3. etc. 2.than the lawyer must not call the witness. the lawyer’s client. A criminal defendant. then the lawyer has discretion whether or not to call the person to the stand. the lawyer shall take reasonable remedial efforts. if necessary. if a lawyer “reasonably believes” that the client or any other witness will testify falsely. disclosure to the tribunal. but no exception is needed because the plain language of Rule 3. iii. ALWAYS has a right to testify. Rule 3.3 (c) mandates the disclosure of past 48 .b.6 applies. c. except where the lawyer knows it is false. and only a criminal defendant.Reasonable remedial measures after L learns of falsity after presenting – i.In a civil matter. or a witness called by the lawyer has offered material evidence and the lawyer comes to know if its falsity. ii. ii. If a lawyer “knows” that a criminal defendant will testify falsely. Tell defendant to tell truth and explain perjury ii. After Testimony is Offered. Retrospective Perjury. If a lawyer “reasonably believes” that a criminal defendant will testify (but the lawyer does not know).Rule 3. withdraw.3 talks about two levels of certainty: (A) “knows” and (B) “reasonably believes” a. Prospective Perjury. “if a lawyer. the lawyer must not put on that evidence b.

the lawyer has a duty to disclose to the court. “For reasons that I cannot disclose to the court. ** L can also request Rule 1. If reasonable belief of falsity.perjury if nothing else will remedy the situation. (2)If the lawyer is unable to dissuade. even if it means disclosing things under 1. the lawyer must seek to withdraw. advocate must make such disclosure to tribunal as necessary to remedy. and apply even if compliance requires disclosure of information otherwise protected by Rule 1.16(b) withdrawal 1. If withdrawal does not undue effect of false evidence. (3)If the lawyer is unable to dissuade and unable to withdraw. NO client confidentially 2. Rule 3. 1. I ask that I be withdrawn from the case” d. I f the lawyer finds out that the evidence that was introduced is false.6.6. the lawyer must use the narrative 49 . CANNOT offer false evidence i.3 is the ONLY rule in the ABA Model Rules that expressly overrides the duty of confidentiality under 1. including disclosure to the tribunal iii.6 2. MAY refuse ii. CONCLUSION BEFORE the False evidence was presentedWhen a witness who intends to give evidence that the lawyer knows to be false (in a criminal case) the lawyer MUST: (1) first make a good faith effort to dissuade the client to make false evidence.16(a) if L’s compliance with this Rule’s duty of candor results in such extreme deterioration of CL relationship that L can no longer competently represent client v. iii. (b) A L who knows that a person intends to engage/has engaged in criminal or fraudulent conduct related to her C’s proceeding shall take reasonable remedial measures. ** Lawyer may be required to withdraw under Rule 1. Advise client of L’s duty of candor and seek client’s cooperation with respect to withdrawal or correction of falsity iv. (c) The duties stated in (a) and (b) continue to the end of the proceeding.

Conflicts of Interest-Costs i.approach and cannot examine the client to illicit false testimony and CANNOT use the evidence from the narrative in summation. Erroneously continuing a matter costs money. ii.try to dissuade the client. Erroneously rejecting a matter costs money. 50 . (The narrative is not a remedy to perjury seeping in the case. Erroneously accepting a matter can cost money. Foundation OF INTEREST a. Loyalty  total devotion to interests of client [do nothing to harm or distract your from pursuing such] b.withdraw. but it does protect the lawyer AFTER the false evidence has been offered the Lawyer MUST: (4 Rs) (1) Recess the proceeding immediately (2) Remonstrate the perjury. iii. if N/A then(4) Reveal the perjury (last option) CRIMINAL CASES – CONFLICTS B. Attorney-client relationship rests on dual foundation of secrecy and loyalty i. if N/A then(3) Resign.

Concurrent conflicts – arise between two present clients or prospective clients 1.whenever a lawyer’s loyalty to a current client is or may be materially compromised by a competing loyalty to any other person (whether a current client. Arise far more often than 1.7 – Conflict of Interest: Current Clients a.even in existing matters.7(a)(1) 2. Types of Conflicts i.be careful that a new attorney is not bringing conflicts. 8 events that can trigger conflicts of interest i. New Relationshipsvii. New clients. New mattersiii. New Attorneys.7(a)(2) ii.if the issues conflict with the position that your firm is advocating for other clients v. (a) A lawyer shall not represent a client if the rep involves a concurrent conflict of interest: i.” b. New issues.if a witness for the other side was/is your client viii.7) d. Materially Limiting Conflicts. New witnesses.firm must check whether there is a conflict ii. or by the lawyer’s own personal interests a. bringing in new parties may create conflicts inadvertently iv. Direct Adversity Conflicts: Whenever a lawyer directly opposes a current client a.. New Parties. Lawyer needs to testify (MR 3.arise out of 2 former clients C.direct adversity b. recommend or carry put an appropriate course of action for the client will be materially limited as result of the lawyer’s other responsibilities or interests. (1) The rep of one client will be directly adverse to another client or 51 . Rule 1. If you look across the table and you see another former client. or some other third person). Successive Conflicts. “Loyalty to a current client. vi.c. Conflcits exists “if there is a significant risk that a lawyer’s ability to consider.. 1.

b. “better” client to avoid COI 3. confirmed in writing c. cause of action. Cannot represent a buyer and seller.Problem 3-8 pp.Despite the conflict. or carry out an appropriate course of action for client will be materially limited a. investigation] because interests are directed elsewhere 2.7(b). 315 i. AND iv. d. Representing opposing sides in a transaction a. Conflicts between Two Current Clients i. Representing opposing sides in the same litigation a. (2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.7(b)(3) 2.Consentable 52 . **(1) L reasonably believes that L will be able to provide competent and This means laying out before your C all the pros and diligent representation to each affected client ii. Model Rules don’t provide a rule. Duty of loyalty is compromised if significant risk that L’s ability to consider. (b) CONSENT. Rule 1. a former client. Even though there is informed consent to waive the cross-claim. Lawyer may represent Client if – **key elements i. IE – lawyer is tempted to give up an option [defense. This is fine if both parties agree.ii. iii. (2) The representation is not prohibited by law iii. Speak to them separately. (3) The representation does not involve the assertion of a claim by one C against another C represented by the lawyer in the same litigation.non-consentable i. Direct Adversity conflicts may arise between two current clients can arise in five ways: 1.perhaps there is a risk that the testimony will conflict with each other. Universally forbidden. the confidential information may preclude the lawyer from representing them both. or a third person or by a personal interest of the lawyer 1. 1. 1. In interviewing them both. **(4) Each affected client gives informed consent. In order for the consent to be informed – you have to let the parties know the possibilities. recommend. Client is entitled to an undistracted attorney. Most courts refuse to allow “hot potato” scenario  withdraw from representation of current client to represent another. ii.

Saves on legal fees for clients ii. Multiple Representation in Criminal Defense Work i. ii.. including possible effects on loyalty.. or even deliberately conceal it from the clients. “the implications of the common representation. and the attorney. Conflicts Between Two current Clients: Indirect Conflicts 1.. Opposing a current client in unrelated litigation 4. or b. 53 . Multiple representation of allied parties a. Lawyer. Opposing a client in unrelated litigation 5. Opposes something that would benefit the other party 3. Conflicts may arise when a lawyer represents different clients in different unrelated matters and one matter may adversely affect the other matter 2. the lawyer must explain: i.7 i. For a client to consent. and the lawyer should be inclined to avoid such representation. The lawyer must warn them of this. “The potential for conflict of interest in representing multiple defendants in a criminal case is grey in the are. does not ordinarily constitute a conflict of interest and thus may not require a lawyer to.b. Reduces delays because of scheduling conflicts iii. Although the clients are not directly attacking or opposing each other. in that case... c. If a conflict develops. a common layer may ignore the conflict.. If a dispute develop among the clients in a transaction.7 of the ABA Model Rules 1. b. Disadvantages and Risks of Multiple Representation i.. Comment 6 to Rule 1. maybe a lawyer may be able to smooth it out.. “simultaneous representation in unrelated matters of clients whose interests are only economically adverse. The attorney-client privilege doesn’t apply 1. Rule 1. confidentiality. may obtain consent of both parties. so that a lawyer can continue the multiple representation ii. one client either a. 3. Wants something that would or could harm the other client.. Advantages of Multiple Representation i. d.

The client gives informed consent in writing...... iv.. vi.... 3.... 2... Conflicts Between Two Current Clients : “Positional” Conflicts 1.. Factors to be considered: i..... The client is advised in writing if the desirability of seeking the advice of independent legal counsel on the transaction c. Conflicts Between a Client and a 3rd Person: Directly Opposing a 3rd party 1..... A lawyer may be willing to oppose the person even though that person be a defendant 2. v.... ABA Model Rule 1. Conflicts Between a Client and a 3RD Party: Adversely Affecting a 3RD Party 1..... It may be a conflict to represent different parties in completely different matters if their legal positions are incompatible 2.. Client’s expectations? b...... Where are the cases pending? ii. Conflicts with the Lawyer’s Own Interests: Business Transactions with Clients (Rule 1....... . A lawyer CAN take inconsistent legal positions in different tribunals at different times...... Temporal relationship? iv. A lawyer may believe that a ...... RULE: .. The transaction and the terms are fair and reasonable in plain language b...iii. Significance of the issue? v. Prohibited UNLESS a.. Business deals between lawyers and clients are highly risky for lawyers 54 . Conflicts with the Lawyer’s Own Interest 1.8) 1..... Substantive or procedural? iii..7(b) generally prohibits a lawyer from accepting representations that actually or potentially conflicts with the lawyer’s own interests vii... A conflict does exist if there is a significant risk that a lawyer’s action on behalf of one client will create a precedent likely to seriously weaken the postiin taken on by the other client a....

Client is client until – 1... and competence 1..16 3. confidence. Get fired c... Pattern of work 55 . IE – reasonable to expect that you monitor other party adhering to compliance with settlement terms d. Disciplinary cases against lawyers for violating the rules on business transactions are legion and the discipline is typically harsh i.. Withdraw under 1. If you reject. Any failure to follow rule 1.. UNAMBIGOUSLY say you are not taking case! b..a. May consider themselves such at any of 4 stages – a. Evaluation – i... If you tell prospective client you are going to do something. Current 1.. Expectation of follow-up services is viewed from client’s perspective 1.8(a) may result in suit b. becomes former prospective client ii. . Disbarments and suspensions are common penalties... c. you will be liable for not doing it iii. Such expectation maintains client’s status as current client. Anyone who reasonably believes you are their lawyer and is reasonably relying on you to perform legal services.. Until formally reject matter.... even if communication is not expressed to you a. prospective client is treated as current and owe same duties regarding conflict. Not get completed work 1... Follow-up i. Who is a client? i.. Do not have to take case to create duty 1. You complete services that you promised to perform 2. Work – i.. e. SPECIFY SCOPE OF REPRESENTATION!! ii..

have clause in agreement with entity that says “this firm represents entity only and not its partners unless separate agreement has been written and signed” 3. If so. unless L gets informed consent vi. employees b. Organizations – don’t automatically rep. member. you don’t automatically rep. Everyone who is neither current nor former a. Attorney has given legal advice to that individual iii. Discotrade – 56 .7 – 1. Comment 4. Parents and children – if you rep. Partner has paid fees to attorney on his own 2. can be undertaken anyway [consentable?] i. that person iv. Anyone who was ever your client in past iii. Decide whether rep. Arises when client has retained you to do legal work often enough to establish a pattern of relationship [client can say “that’s my lawyer]. attorney does not necessarily represent any constituent [director. This can happen if – i. parents c. To avoid such conflict.i. Never 1. L ordinarily must withdraw under Rule 1. a child. Attorney has met individually with that person ii. Rule 1. SH] or affiliated organization [parent/subsidiary/members of Trade Association when represent Trade Association itself] a. Rule 1. get informed consent. Comment 2. office. Partner is not individually represented iv. When L represents an entity. directors.7 – 1. officers. Third person paying a fee – if someone is paying a fee for your client. If conflict arises after representation has been undertaken. don’t automatically rep. Former 1. even if not doing work for client at that moment ii.13 – Organization as Client 1. employee.16. Resolution of a conflict of interest requires the lawyer – a. Rule 1. Determine whether there is a conflict c. Clearly ID client b. confirmed in writing v.

administrative support  no consent to waive f. Rule 1. email address. not in same transaction. IE – if a L is asked to represent the seller of a business in negotiations with a buyer who is currently represented by the L. one of your current clients will pose a significant risk that your representation of this new client will be materially limited b. Opposing a current client in unrelated litigation a. Not prohibited by Rule 1. Comment 6. Directly adverse if L is required to cross-examine client A who appears as a witness in a lawsuit involving client B 4. Consentable but absolute right to refuse to consent to being opposed in any litigation matter. and if current client consents. L needs informed consent b. Comment 6. Opposing current client in an unrelated transaction a. Representing opposing sides in a transaction a. benefit system. must consider WAII [sister corporation or a subsidiary] a current client as Wyeth is viewed as a single entity 1.a. Materially Limited because from the new client’s perspective.  Research is subsidiary of Pharm. i. but in unrelated matter.7 – i. L must refuse to accept new case i. your current representation of. board. Universally forbidden  informed consent is irrelevant 2. but risky 3. Wyeth  AHP  WAII and Pharm. Can arise in 5 ways – 1. Direct Adversity because you are directly going against one of your current clients ii.7. Representing opposing sides in same litigation a. Rule 1. Need informed consent c. Same President. letterhead.7: simultaneous representation in unrelated 57 . Direct Conflicts i. officers. Firm representing Pharm. Consentable i. and responsibility to.

If representation fails to due irreconcilable conflict between parties. note on final that attorney must want to have very limited scope under Rule 1. Multiple representation of allied parties a. lawyer must explain – i. ACP  does not attach to commonly represented clients. confidentiality.7 5. Obviously each would be better off economically if the other lost. If one client decides that some material matter be kept from the other. Advantages – i. To get consent. Including – possibly effects on loyalty. L will have to withdraw because there is a duty of loyalty to each client. In civil. but this is not what we are trying to prevent under 1. and advantages and risks involved a. Implications of common representation in WRITING 1. attorney-client privilege. may not require consent of respective i. Co-defendants in civil or criminal litigation 1. It is always a [consentable] conflict to represent – i. and neither can claim if representation fails 2. L ill be forced to withdraw and there may be additional costs. Partners in business b. embarrassment and recrimination c.2(c) so that if C’s interests diverge during settlement.matters of clients whose interests are only economically adverse does not ordinarily constitute a conflict of interest and thus. IE – represent 2 different grocery stores in completely unrelated matters. Co-plaintiffs in litigation iii. Reduces delays because of scheduling 58 . Saves legal fees ii. attorney can get out ii. and each client has the right to know about anything that might affect client’s interests 3.

If lawyer will be unable to remain impartial – i. If conflict develops. there needs to be no evidence that affects 1 party but not the other ii. Attorney must advise clients of this waiver e. Prosecution is hesitant to be involved in this because it can result in ineffective assistance of counsel case if attorney is found to have been conflicted [reversible error]  prosecution doesn’t want to deal with this a. If dispute does arise. If serious. If common clients get into dispute. common lawyer may be able to help parties work out differences before problems erupt into litigation or ruin deal d. Criminal defense work – i.7  potential for conflict of interest in representing multiple defendants in criminal case is so grave that ordinarily a lawyer should decline to represent more than 1 co-defendant 1. Disadvantages – i. L cannot undertake because L is required to remain impartial between commonly represented clients g. all parties may have to get new lawyers. In order to be positive that you can provide competent and diligent representation.iii. insoluble conflict arises. they will not be able to claim ACP for communications with lawyer during common representation 1. In criminal defense situation. it is a good idea to disclose everything to the judge to make sure he is okay with multiple representation 1. If there is already antagonism between the parties or imminent contentious litigation/negotiations – i. common L may ignore conflict or deliberately conceal it so lawyer can continue multiple representation ii. Prosecutor can raise objection and judge decides 59 . Rule 1. Comment 23. resulting in additional time and expense iii. Lawyer cannot undertake because cannot be loyal to both f.

Maybe not enough money to go around iii. Settlement desires ii. Wants something that would or could harm the other client. but it can if a. Materially limiting conflict. Opposes something that would or could help the other client ii. Merely advocating a legal position for one client creating precedent adverse to the interests of another client does not necessarily create conflict of interest. like when i. Conflicts arise from expectation and diversity of injuries g. Conflicts Between Client and 3rd Party: Directly Opposing 3rd Party i. If significant risk of material limitation. Client’s reasonable expectations in retaining L i.h. Temporal relationship between matters d. L represents different clients in different matters and one matter may adversely affect the other 1. Problems with mass tort cases [products liability. Whether issue is substantive or procedural c. one client either: a. Relevant factors in determining whether C needs to be advised – a. Comment 24. need informed consent i. Positional Conflicts i. Significance of issue of immediate and longterm interests of client [central to party’s claim?] e. Where cases are pending b.] – i. NOT directly adverse h. OR b. Indirect Conflicts i. Lawyer’s duties of loyalty may be materially limited by responsibilities to 3rd 60 . Significant risk that L’s action on behalf of one client will materially limit lawyer’s effectiveness in representing another client in a different case. Although clients are not directly attacking or opposing each other. Decision favoring one client will create precedent likely to seriously weaken position taken on behalf of the other client 1.7 – L may take inconsistent legal positions in different tribunals at different times on behalf of different clients 1. Rule 1. etc. asbestos.

In many jurisdictions. L knows that he will become unpopular or subjected to threats/harm  don’t take it c. business transactions between L and C are presumptively fraudulent or improper a. even though L should add that bank j. Conflicts with Lawyer’s Own Interests i. Transaction and terms are fair and reasonable to C and are fully disclosed. including whether L is representing client in transaction 2. misrep. IE – L may not add a bank as D because his sister is the President. Rule 1. Burden of L to show that transaction is fair and C was fully informed of all terms in writing before entering i.9 – Duties to Former Clients [successive conflicts] b. L knows that handling a new matter would require traveling and he wants to stay home for wedding and bday party  don’t take it b. and transmitted in writing in a matter that can be reasonably understood by C b.parties 1.7(b) and 1. IE – a. to essential terms of transactions and L’s role in transaction. L’s own interests should not be permitted to have an adverse effect on representation 1. Client is advised in writing of desirability of seeking advice of independent counsel on transaction c. L asked to bring suit against small company in which he owns a lot of stock  don’t take it ii.8(a) can result in suit by C against L for fraud. Disbarment and lengthy suspensions are common penalties 3..8(a) prohibit L from entering into any client of business deal with C unless L satisfies 3 stringent and express conditions – a. 1. breach of fiduciary duty a. Rule 1.9 (a) L who has formerly represented a client in a matter shall not thereafter 61 . FORMER CLIENTS A. Business Transactions with Client – 1. in writing signed by client. Client gives informed consent. Failure to follow 1.

Whose interests materially adverse to that person. Former C has no veto power if matter is not substantially related to matter 3. Substantial Relationship Test – 1. confirmed in writing i. irrebuttable presumption that you obtained confidential information relevant and material to current matter i. IE – rep someone and learn private financial information may not then represent person’s spouse in getting a divorce b. no matter how little work you did c.7(a). With former clients. the new matter has to be substantially related to something L represented a former C in i. If you were billed at any time at all to matter. IE – L who previously represented a C in getting environmental permit would be precluded from representing neighborhood in challenge zoning laws but can represent tenant of shopping mall in defending eviction c.represent another person in the same or substantially related matter in which that person’s interests are materially adverse to interests of former client unless former client gives informed consent. More lenient than 1. Irrebuttable Presumption – a. Comment 3 – “substantially related”  if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as normally would have been obtained would materially advance C’s position in subsequent representation a. 1. AND 62 . Only need informed consent if the matter you are handling for your current client is substantially related to the matter you handled from your former client 2. however. General knowledge of organization C’s policies/practices would not preclude subsequent rep but specific facts will d. which says a L may not undertake representation that will materially limit ability to represent either C a.9 (b) L shall not knowingly represent a person in the same or substantially related matter in which a firm in which L formerly was associated had previously represented a C – i. If you personally represented a client in a substantially related matter.

you acquired protected information about FC in same or substantially related matter and new client’s interests are materially adverse iii. Burden is on lawyer or law firm to spot the former client conflict and get the informed consent a. You can rebut presumption by showing that you did not have access to former client’s confidences 1. Rule 1. deductions. (c) L who has former represented C in a matter or whose present or former firm has formerly represented a C shall not thereafter – i.6 and 1.9(c) that is material to matter a. IE – L has general access to all files of all Cs and participates in discussions about affairs  infer privy to such information 2. courts generally presume that you acquired relevant confidential information a.ii. confirmed in writing iii. You personally represented a C and now a new C wants you to represent them in same or substantially related matter in which new C’s interests are materially adverse to FC’s ii. You did not personally represent FC but while working at a previous firm. Comment 8 – does not preclude generally known information e.10 – Imputation of Conflicts of Interests 63 . About whom the L had acquired information protected by Rules 1. Reveal information relating to representation except as rules would permit or require 1. Generally rebuttable presumption i. Grounds for Personal Disqualification – i. Rebuttable Presumption – 1. NOT on former C to object B. If your former firm represented the former client in a substantially related matter. IE – show that you only had access to the cases you personally worked on d. Unless former C gives informed consent. Comment 6 – inferences. Can get informed consent – 1. presumptions may be made i. Use information relating to representation to disadvantage of former C except as Rules would permit or require or when information has become generally known ii. Comment 5 – only disqualified if have actual information b.

and arises out of disqualified L’s association with a prior firm. Statement that review may be available before a tribunal. Description of screening procedures b. which shall include – a. (1) Prohibition is based on personal interest of disqualified L and does not present a significant risk of materially limiting the representation of the C by the remaining Ls in the firm. SHOULD include description of screened L’s prior representation and statement by screened L that C’s material confidential information has not been disclosed 3. An agreement by firm to respond promptly to any written inquires or objections by former C about screening procedure i.9 unless i. (a) While Ls are [currently] associated in a firm. Statement of firm’s and L’s compliance with Rules c. (3) Certifications of compliance with these Rules and with screening procedures are provided to former client by screened lawyer and partner of firm. at reasonable intervals upon FC’s written request and upon termination of screening procedure C.11 – Special Conflicts of Interest for Former and Current Government Officers 64 .9(b).the new firm that directly opposed may now be disqualified Old firm can CONSENT to new firm a. • Question is did the L personally represent the FC in a matter that directly opposed the new firm’s position. AND 1.New rule after 2009. Because neither questions of C’s loyalty or protection of confidential information are presented ii. OR 1. But not all states have adopted the new rule yet. and d.9(a) or Rule 1.newly associated L can be screened from participation and the firm doesn’t need to be disqualified from the case. none of them shall knowingly represent a C when any one of them practicing alone would be prohibited from doing so by Rule 1. o o If the L obtained any confidential client information in any way. Rule 1. Disqualified L is timely screened from any participation in the matter and is appointed no part of the fee therefrom 2. Written notice is promptly given to any affected former C to enable former C to ascertain compliance with the provisions of the Rule.7 or 1. (2) Prohibition is based on Rule 1.

(a) L shall not represent anyone in connection with matter in which L was a judge unless all parties give informed consent b. There is no consent aspect here D. (a) L who was former public officer/government employee – i. (c) If a government/public L has confidential government information about a person. (b) When L is disqualified under 1. L may not represent a private client whose interests are adverse to person L has information about if information could be used to material disadvantage of person about whom L has information i. L is screened and given no part of fee ii.10(b)(2)(ii) E. Is subject to Rule 1.9(c) ii. ** “In connection with” is looser than substantially related and interests do not have to be adverse b. Written notice is given to government to enable it to ascertain compliance with provisions of Rule 1. L is screened and given no part of fee ii. unless government gives informed consent in writing 1. Rule 1.and Employees a. no L in firm with which L is association may knowingly undertake/continue representation unless – i. Not as detailed as 1. Screen/firewall: metaphorical wall of separation between L with conflict and rest of firm b. no L in firm with which L is association may knowingly undertake/continue representation unless – i. Shall not represent a C in connection with a matter in which L participated personally and substantially. Restrictions on disqualified L – 1. witness. and Ls involved ii.12(a). (b) When L is disqualified under 1. Not as detailed as 1. Types of Firewalls i. Imputed Conflicts and Firewalls – a. Written notice is given to government to enable it to ascertain compliance with provisions of Rule 1. Must be completely isolated from substantially related matter and all contact with client. Restrictions on other Ls – 65 .10(b)(2)(ii) c.11(a).12 – Special Conflicts of Interest for Former and Current Government Officers and Employees a.

Intentional breaches e. Firm should circulate a memo to all attorneys and staff in the firm advising them not to discuss case with disqualified L 2. Former v. 2. Implementation Measures – 1.7 (a) the disqualification runs to the lawyer personally but not imputed to her firm.if your lawyer can turn and be on the other side. Former clients can move to disqualify the client if he is not properly screened. The utility of firewalls. If someone starts talking to disqualified lawyer inadvertently –that lawyer must tell him to stop iii. A. i. Current Clients – i. Upon immediately learning of conflict c.there is a cynicism of the legal profession. is limited to curing imputed conflicts with former clients. (a) L shall not act as a advocate at a trial (not pretrial) in which L is likely to be necessary witness UNLESS 1. Firm should make all files of “conflict matter” inaccessible to disqualified L. Timing – 1. where they are effective at all. NECESSARY  not disqualified if testimony is cumulative with others ii.1. Do we trust attorneys THE ADVOCATE-WITNESS RULE *This is a special conflict of interest. Testimony relates to nature and value of legal services rendered in the case 66 . Dependent on trust ii. All steps of screening must be taken before the conflict ripens. either by putting them in special place [lock and key] or making them subject to sign-out system iv. Accidental/intentional breaches iii. Other lawyers in the firm must not discuss case with disqualified L a.7 – Lawyer as Witness a. Pressure from partners iv. Risks – i. Public Mistrust. before new L joins the firm. 3. Firewalls don’t really work where current C is involved 1. Rule 3. The testimony relates to an uncontested issue iii. d.

Comment 7 – If testifying L would be disqualified by Rule 1. have someone else [paralegal] in room with you when you interview people to avoid having to testify about that interview and face this rule 2. it may accord testimonial weight to his closing arguments B.the lawyer can still testify b. Jury may not be able to distinguish between L’s role as witness and role as advocate 1. that does not preclude another lawyer from the firm in testifying. other Ls in the firm are precluded from representing C by 1. Comment 4 – balance between interests of C and tribunal and opposing party a. Jury may give too much weight to L’s testimony because of “special knowledge” of case ii. Applies any time – i. NECESSARY witness d. Imputation – i. If the lawyer is disqualified. IE – would tribunal be misled v. Disqualification runs only to – i. Policies – i. Disqualification would work substantial hardship on the client 1. If it is an uncontested matter. prejudice/importance of testimony b. Attorney for party will be called as a witness ii.9 from representing C. 67 .10 unless informed consent 1. **Two keys points a. NOT imputed to firm f. Lay people may wonder if attorney lied to prevail in litigation iv.iv. NOT pretrial work e.7 or 1. (b) L may act as advocate in a trial in which another L in L’s firm is likely to be called as a witness unless precluded under Rule 1. IE – testifying W is worried about being subject to malpractice for his work on the case c. Advocacy at trial.7 or 1. Professional courtesy may handicap other L on cross (NOT TRUE) iii. To avoid. As a result.9 i.

Duties – a. Split up claims – a. No interferences with L’s independence of professional judgment or with client-lawyer 68 . Keep mouth shut and not disclose to insurer because L is representing the insured as his client.8 – Third Party Payor i. whereby insurer says. L should not accept compensation from anyone except the client unless 1. This puts defense counsel in between insurer and insured i. Reservation of Rights Letter – a. Insured owes duties to insurer – i. Insurance company sends letter to insured. Duty of cooperation C. Withdraw if he feels it is irreconcilable 2.because it is the defense counsel that is paying the lawyer. we will provide a defense for you. This is the position of Model Rule 1. Pay premium on policy ii. Does NOT have obligation to provide counsel for any additional claims D. not the company a. Notify insurer in event of lawsuit or incident that could reasonably lead to lawsuit iii. Insurer only has duty to defend i. relying on multiple representation situation and claim that ACP doesn’t exist 3. What if defense counsel learns about possible lack of coverage? 1. Insurance triangle Defense Counsel / Insurance Company \ Insured *Problem Arises where the Defense counsel is split in owing a duty to the insurance company and the Insured. B.INSURANCE COMPANIES A. we will have another case whereby it is determined whether or not you are covered b. Inform both insurer and insured that this information exists. C gives informed consent 2. if you lose and there are damages. Insurer owes to insured to defend and pay damages b. BUT.

insurance company interests (secondary) G.the lawyer may advise the insurance company to negotiate in bad faith. NOT insurer c. Client. Information relating to representation is protected as required by 1. Lawyers primary Obligation is to the client B. or has participated. Protects the Integrity of the Proceedings b. Two Models Regulating Extrajudicial Statements a. Defense counsel is obligated to tell insured and plaintiff’s counsel what coverage exists a.6 – Trial Publicity a. Policy Holder representation c. and counsel encourage P to settle. Comment 11 – a third person will compensate L. Claim is greater than amount of policy b. co.that there is a risk of excessive judgment and that they may have to consult with independent counsel I. If they don’t do that and it is learned that policy is greater than initially represented. The lawyer may have to send an Excess Letter to the insured. AND 3.] H. Excess Situation – Settlement Conflict a. Dual-client representation b. Officer of the Court Model i. may be liability insurance company 1. ***Lawyer’s Obligations is always to the policy holder (Primary). (a) L who is participating. Policy usually has a clause that protects the interest of the policy-holder and address the issue of excess judgment.6 ii. L can be on hook [not ins. Competing Views a.representative Model i. Treats insurer as third party payor E. That is in insured’s interest. CRIMINAL CASES – LIMITS ON ZEALOUS REPRESENTATION A. The dilemma arises when the insurance company finds out about the possibility that they might not have to pay – the lawyer may not tell this to the insured and should advise to seek independent counsel.relationship. Say “my client told me that insurance coverage exists in the amount of…” i. Rule 3. in investigation or litigation of a matter 69 . P might offer to settle for limits of policy i. Insurance representation F.

Fact. Rule 1. i. In criminal case – 1. He called that a bushy haired man killed his wife and knocked him out. (b) L may state [not exhaustive] – (Safe harbor.Representation Model) d. Cannot make a comment to the media regarding specific tests. That investigation is in progress iv. Request of assistance in obtaining evidence and information necessary vi. Information in public record iii. 2-9 pp. ID of investigating/arresting officers or agencies and length of investigation c. and. then they are within the model rules) i. Released. residence. Sam Sheppard case a.shall not make an extrajudicial statement that L knows or reasonably should know will be disseminated by means of public communication will have a substantial likelihood of materially prejudicing adjudicative proceeding (Officer of the Court Model) b. Tactical decisions could be made by the lawyer. C. L may make a statement that reasonable L would believe is required to protect C from substantial undue prejudicial effect of recent publicity not initiated by L or C. except when prohibited by law. The first case that could be called the media circus. polygraphs. information necessary to aid in apprehension 3. Facts: Doctor in Ohio convicted of killing his wife. found not guilty on appeal.(lawyer may choose on behalf of the client. testimony. 162) D. Claim. occupation. Scheduling/result of step in litigation v. ID. defense. If accused has not been apprehended. Sheppard 70 .2 a. when reason to believe likelihood of substantial harm to individual or public interest vii. (c) Notwithstanding (a). time and place of arrest 4. Warning of danger concerning behavior of person involved. Shall be limited to such information necessary to mitigate recent adverse publicity.if lawyers are to restrict their statements to these. offense. b. ID of persons ii. (Client.6 i. family status of accused 2. to speak about the case or reply to the allegations in the media – Prob. Because he was a prominent doctor it affected how the judge and jury viewed this case. Comment 5 Rule 3.

In connection with sentencing – disclose to defense and tribunal all unprivileged mitigating information KNOWN to prosecutor F. (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. Rule 3. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct. adjudicatory officer or public legal officer. If she doesn’t cite. Rule 8. **Lawyer will be found in contempt.goes to write a book and goes on the Tonight Show. Must cite a recent case that holds that her position is invalid. Lawyers Duty to Disclose Adverse Law (pp. General Rule: Lawyers do not have a duty to help their adversaries or fixing their mistakes. What does it mean for a case to be directly adverse? 1.If the case would be considered important by the judge or the judge would feel misled. the more you 71 .2 Judicial And Legal Officials a. i.8 – Special Responsibilities of a Prosecutor a. Guideline. given reasonable opportunity to get counsel unrepresented person KNOWN to prosecution that tends to negate guilt of accused or mitigate offense a. G. 3. However whenever there is a legal authority. b. or of a candidate for election or appointment to judicial or legal office. **Lawyer’s first amendment rights are diminished. She must disclose that law/case even if it is against her.173 Problem 2-10) a. lawyer must disclose the adverse law. “Oh Shit” Rule: The unhappier you are with a precedent. He also becomes a professional wrestler.” E. depending on her adversary to cite it and he fails to do so again. Contempt is only warranted when essential to the orderly administration of justice. cause (a) Refrain from prosecuting charges not supported by probable (b) Reasonable efforts to advise and assure that accused has been (c) Avoid attempts to get waiver of important pretrial rights from (d) Timely disclosure to defense of all evidence or information 2.“The Killer. Prosecutor shall – 1. 4. than you need to disclose it 2.

You learn that juror is employed by subsidiary of your client’s company. You learn that the juror was employed for b. juror. drive by their house i. Communicate ex parte w/ such people during proceeding unless authorized 1. Juror has made known to L a desire not to communicate 3. Hypo. Depends on local laws regarding communication with juror after the case. coercion. The case is going to trial and you receive a list of jurors and you follow them and investigate them. Prohibited by law or court order 2. Cannot even exchange pleasantries a. Lawyers are NOT compelled to provide adverse facts. ALL types of exchange with the juror. Lawyers are prohibited in speaking ex parte (without the presence of other lawyers) c. The communication involves misrepresentation. Directly Adverse iii. d. Engage in conduct intent to disrupt tribunal. etc. it is recommended not to talk to jurors i. ii. Ask judge to explain this so you don’t look rude iii. Improper Contacts a. Improper Arguments a. No  under 3. J. L shall not: i. Even if asked during voir dire. I. by means prohibited by law ii. Communicate with juror/prospective juror after discharge of jury if: 1. Seek to influence judge. are prohibited. (You would be breaching client confidentiality if you were to provide adverse facts) H. AND 2. Duty to disclose? 1. Hypo – i. duress or harassment iv. cannot conclude that juror’s not 72 . prospective juror. only if you know that there is fraudulent conduct a.3(b). After the case.5 – Impartiality and Decorum of the Tribunal a. Controlling Jurisdiction. even pleasantries. Dangerous territory to talk to their neighbor because neighbor may tell juror and juror may find that harassment c. b.have to reveal it. Must be: 1. Rule 3. L can look at potential jurors’ credit reports.

(c) Avoid attempts to get waiver of important pretrial rights from unrepresented person 4. L shall not allude to any matter that L does not reasonably believe is relevant or that will not be supported by admissible evidence. (b) L who receives document relating to representation of L’s C and knows or reasonably should know that document was inadvertently sent shall promptly notify sender i. culpability. May strike hard blows.4 – Respect for Rights of Third Parties a.4(d). (a) In representing a client. assert personal knowledge of facts [except when testifying as witness]. (e) – Fairness to Opposing Party and Counsel L shall not – (d) in pretrial procedure. but not foul ones b. L shall not use means that have no substantial purpose other than to embarrass. (a) Refrain from prosecuting charges not supported by probable cause 2. Rule 4.8 – Special Responsibilities of a Prosecutor i. (d) Make Timely disclosure to defense of all evidence or information 73 . Rule 3. or burden a third person.admitting is criminal or fraudulent  he may not know K. (b) Reasonable efforts to advise and assure that accused has been given reasonable opportunity to get counsel 3. make frivolous discovery request or fail to make reasonably diligent effort to comply with proper request (e) In trial. but that justice shall be served i. Special Duties of Prosecutors a. delay. or state personal opinion as to justness of cause. Prosecutor shall – 1. guilt/innocence • Can Lawyers present a case that is not in accord with the facts? o YES L. Prosecutors are subject to state ethics rules i. Prosecutor’s interest in a criminal prosecution is not that it shall win a case. Federal prosecutors are subject to ethics rules of the state in which the district court sits [McDade Amendment] c. Rule 3. Comment 2 – whether L is required to return the document is a matter of law beyond scope of Rules M. credibility. or use methods of getting evidence that violate legal rights b.

A Brady motion is a defendant's request for evidence concerning a material witness which is favorable to the defense and to which the defense may be entitled. vi. Brady – 1. Constitutional obligation to disclose weakness of case to grand jury? 1.in Grand Jury. Brady obligations don’t even apply i. whose interest. Williams. or bad faith. As a prosecutor you have ethical responsibilities and constitutional responsibilities. In connection with sentencing – disclose to defense and tribunal all unprivileged mitigating information KNOWN to prosecutor ii.S. Harrison. Favorable evidence includes not only evidence that tends to exculpate the accused.. Any evidence that is exculpatory. but that justice shall be done..A good prosecutor can get the grand jury to indict a ham sandwich c.KNOWN to prosecution that tends to negate guilt of accused or mitigate offense a.Prosecutor is the representative not of an ordinary party of a controversy. irrespective of good faith. v. b. Burger v U..any evidence that tends to demonstrate the absence of guilt- 74 . even to grand jury.prosecutor has a responsibility as a minister of justice. but also evidence that may impeach the credibility of a government witness. 2. Supreme Court: suppression by prosecution of evidence favorable to an accused upon request violations due process where the evidence is material either to guilt or punishment.up to the prosecutor’s discretion. iv. of prosecution a. but of sovereignty. v. No – in the context of presenting your case to the grand jury whole different proceeding with different obligations a. in a criminal prosecution is not that it shall win a case.. iii. A Brady violation occurs where the failure to disclose evidence to the defense deprives the defendant of a fair trial.. Comment 1. the same procedures in trial do not apply.. the Justice Department instructs US Attorneys to disclose substantial evidence that directly negates guilt if personally aware. US. BUT.

In representing a client.2 – Communication with Person Represented by Counsel (No Contact Rule) i. Evidence known to prosecution that tends to negate guilt of accused iii. Applies even if prosecution has not suppressed evidence and defense did not file Brady motion  must turn over if you know i. THIS IS MATERIAL i. ix.2(b) – this is a reasonable resolution of arguable question of professional duty – could comply with supervisor’s instructions and not disclose that information if you think it is reasonable. Hypo – 1. 2. Rule 5. A good Prosecutor should and would disclose that exculpatory evidence.8(d) – 1. No – prosecutors have absolute immunity for civil suits when it comes to trial advocacy functions d. UNLESS consent of other Lawyer (consent cannot be by the party) or law or court order authorizes such 1. Definite obligation to disclose upon Brady request ii. Rule 4. Ethical standard: Rule 3. Could result in set aside verdict 2. 4 witnesses – 2 unable to ID defendant and credibility of 3rd can be attacked a. Liable for damages? i. L shall not communicate about the subject of the representation with a person the L knows to be represented by another L. If the rule is too broad. Failure by prosecution to disclose exculpatory material in trial – 1. Grievance to disciplinary authorities against prosecution a.b Standard (tends to) lower standard than the constitutional obligation. What if you are a subordinate ADA and DA tells you not to disclose? 1. “Material”  reasonable probability that outcome would have been different if evidence had been disclosed vii.people who are the targets of investigation can 75 . Is there an ethical duty to disclose exculpatory evidence? 1. Ethical obligation under Rule 3.b. viii.

Has government given appropriate warnings of person’s rights to obtain counsel? a. United States v. Has government engaged in misconduct in connection with communication? IE – misrepresentation. grand jury hearing  against communication 2. or attempts to obtain attorney-client communications? a.prosecutors/lawyers can talk to anyone 3. communications are not authorized by law] – 1. If yes  favors communication 5. Pre-indictment . If yes  favors communication 6. Is it constitutional and/or ethical to threaten to file charges against an additional person 76 . Does defense counsel suffer from Conflict of Interest because informant offered evidence of criminal activity adverse to interests of other clients represented by counsel? a. If the rule is too narrow. If not favors communication e. coercion.insulate themselves by hiring a lawyer.Did informant or government initiate communication? a. Once indictment. 6 factors relevant [balancing test] in determining whether communications pre-indictment are authorized by law [** once indictment. Has adversarial relationship developed? a. If informant  favors communication 3. If yes  disfavors communication b. Talao [prosecutor talking with someone represented] – a. If yes  favors communication 4. 2. subpoena. Communication with represented person under “authorized by law” clause i.Does communication demonstrate evidence of subordination of perjury or obstruction of justice? a. Pre-indictment . If just at investigatory stage  favors communication i.

Too narrow.[ie – defendant’s wife] if defendants refuse to take a plea? i. Prosecutorial Vindictiveness: prosecution brings different charges/increases charges AFTER defendant exercises constitutional right  that can be violation of constitutional right i. 2. Facts: Plaintiff falls from scaffolding while at work and sues his employer.8(a)  cannot prosecute a charge that is not supported by probable cause iii. His fellow employees are witnesses. prosecutors have a lot of discretion in what charges to bring a. Ethical – 1. Team I a. a. At plea bargaining stage. No Contact Rule (4. * There are some cases where the court has prohibited contact with former employees where they have had extensive exposure to the organization. Constitutional – 1.2) applies to entities (corporations) as well. Issue: Whether all employees of a corporation are considered 77 . Lawyers must be very careful in accepting documents from former employees – where there is confidential information. Unethical if doesn’t satisfy Rule 3.no contact with all employees b.2 is to protect the Attorney Client Relationship therefore only applies only to current employees NOT former employees.that is privileged and the lawyer cannot acquire it. Procedural History: Plaintiff sues employer following an accident in which he falls and is injured on the job. where corporations are represented by a lawyer. 1. Plaintiff’s counsel seeks to interview the employees. Purpose of 4. Defendants claim that plaintiff’s counsel cannot do this because they are forbidden from communicating directly with the defendant c. iv. Too broad. Question arises as to whether it is proper for his counsel to interview the witnesses to the accident who were also employees of the defendant b. Niesig v. Whether or not there was a motive to exercise vindictiveness does not matter ii.contact with only some employees and admit to conduct that can impute liability to the corporation.

other than advice to secure counsel.parties for the purpose of the no-contact rule or whether only some employees are. Can get confidential documents 2. *Act disinterested f. What should you NOT do? 1. Holding: Only some employees are parties for the purpose of the no-contact rule. It does not matter whether this person is represented by personal attorney or corporate attorney. L shall not give legal advice. In dealing with someone not represented. 1. *Ask whether she has an attorney? a. If no. *Identify yourself explicitly . v. i. a. Employee who implement the advice of counsel e. Lawyer need to avoid talking to employees who have a lawyer and speaking to employees who were directly involved in the liability producing event. if L knows that interests of such person are or have reasonable possibility of being in conflict with interests of client. reasonably should know.good bye! b. Rule: Anti Contact Rule extends to 3 categories of employees. 3. If yes. 1. that unrepresented person misunderstands L’s role. L should – 78 . Rule 4. d. Employees whose acts or omissions can be imputed to the corporation for the purposes of liability iii. L shall not state or imply that he is disinterested.Have you hired an attorney personally regarding this matter? i. 2. What should you do when you are approaching an employee of a corporation that you are suing? 1. vi. Disposition: Employee witnesses can be interviewed.Thank you.3 – Communication with Unrepresented Person i. If L knows. g. Those employees whose acts are binding on the corporation (control group) ii.Tell them who you are representing 2. f. L should make reasonable efforts to correct. *Illicit any privileged information (verbal or written) that are subject to attorney client privilege.

4(c). Tape Recordingsa. (a) In representing a client. a lawyer shall not use means that have no substantial purpose other than to embarrass. ID his client and explain that C has interests opposed to this person c. L can advise C to engage in lawful conduct iv. Rule 4. States vary where you are a party to the conversation 1. or use methods of obtaining evidence that violate the legal rights of such a person. Disciplinary Rules B. Also. but misrepresentation about whether a conversation was being recorded is improper iii.a. If you find something. 79 . deceitful conduct 1. Rule 4. (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. Transactions With Persons Other Than Clients 1. Make it clear that there is no Attorney Client. whether you have to hand it over varies state to state. delay. State and Federal i. ALL other states. BUT. Two areas of law that you need to consult with regarding this area a. Lawful recording without consent does not violate the Model Rules ii. under 8.One party consent (NY) b. Secret recordings themselves are not inherently misleading. under 8.All parties must consent to the recording 2. 12 states .4(a) cmnt.4 – i. 1. or burden a third person. If yes. 2. Say that talking is voluntary d.2  need consent of other lawyer or law/court order authorization b. Ask if they are represented i.Privilege Nothing you say should be construed as giving legal advice [because person you are talking to may have adverse interests to your C] TAPE RECORDINGS AND DISCOVERY ABUSE A. Rule 4. b. L cannot engage in fraudulent.4 Respect For Rights Of Third Persons a.

There are a number of situations where Rule 4. In NY – i. Objection on grounds of WPD or ACP are not proper if the interrogatory calls for things that happened before suit.3.4(b) does nothing to protect attorney client privilege. Ethical requirement that interrogatories are tailored to the factors of the case so that makes it hard to use for interrogatories c. (1) Unnecessarily broad discovery requests i. (2) Withholding information that someone is entitled to [adversary] i. As a practical matter. and a bunch of other states say all party consent is needed C. CA. Bottom line with 4. b. Formal and informal discovery methods suffer from a fundamental flaw.whether he wants to gather evidence that way a. If L says. not communications with L or prepared in anticipation of litigation ii. One party consent requirement  only 1 party to the conversation has to consent to the recording for it to be ethically permissible ii. Depends on the lawyer’s own ethics. No correct philosophy of lawyering. 5. in transactions) 4.4(b)-This ethical rule fails to protect the client with situations with information inadvertently getting in the hands of the opposing counsel b. IE – interrogatories that nest a lot of questions in 1 question that there are more than 25 questions ii.they do not take place under the direct scrutiny of a judge. D. “our records are here.whenever speaking to an adversary assume that you are being recorded i.some lawyers engage in opportunistic or abusive tactics b. (ex. Discovery Abuse – 3 types a.cannot do anything to prevent that information from being used. Don’t ever say or do anything that you do not want to see on the front cover of the NY Times. ** Must indicate that information is protected and create a log of all the information you are withholding. If the clients lawyer inadvertently sends an email to the opposing attorney that discusses the client’s criminal convictions and charge – the information is not attorney client privileged information because it is public. along with your justification for doing such – 80 .” then burden is on P to look iii. FL. come look at 8am.

If the opposing lawyer is abusivea. NO blanket objection d. including a good faith argument of any extension. 1. Keep your cool. despite what attorney tells you [5. telling W how to answer 1. You would want everything to be on the record as proof. you have to comply with ethical rules. What if partner makes you certify a response that you believe is improper? i. Most case law dealing with frivolous litigation derives from here because it provides for monetary sanctions so people want to get Ls under FRCP b. Rule 3. interrupting your train of thought. b. Don’t certify and report him for misconduct under 8. (3)Actual abusive behavior i. always say “the hospital told me…” or “my client told me…”  be clear that you are merely conveying information g. obscenities on record. You can also ask for the court to supervise if you know that there will be difficulties.2(b) – this is not a reasonable resolution of an arguable question of professional conduct.it will only undermine your argument later on that the other attorney was abusive. unless there is a basis in law and fact that is not frivolous.cursing. c.1. but not frivolous just because facts need to be developed on discovery B.1 – Meritorious Claims and Contentions a.2(a)]. When L is repeating information that he received.3 f. As an attorney/officer of the court. L shall not bring or defend a proceeding. L must inform themselves of facts of case and applicable law and determine if they can make a good faith argument. or reversal of existing law i. Do not return the abuse. NOT 5. e. By submitting or presenting a document the attorney certifies to the best of her 81 . Sometimes it is harmful to narrowly tailor answers to discovery request [ie – information “related to” disciplinary proceedings – there was investigation but no proceeding instituted]  run the risk of having this found out and used to impeach credibility of witness later. 2. witness coaching. FRCP 11 – a. Better to disclose it yourself. Matter of Jordan Shiff. or assert or controvert an issue therein. FRIVOLOUS CLAIMS A. modification. At deposition –excessive objection.

Reasonable inquiry to determine there is both evidentiary support evidence or are reasonable based upon belief or lack of information for the factual contentions and sufficient law to support the legal claims and that there are no improper purposes. P counsel must investigate what SOL is. P brings action because he believes a right needs to be vindicated or correct economic loss  correct ii. Rule 3. shouldn’t drag it out. Cause of action is not being filed for an improper purpose. Legal contentions are warranted by existing law or nonfrivolous argument for extending. If expired. modifying. social. harassment for extending. If the purpose is only to make someone pay and not redress some grievance  improper 3. 3.1 does not have this requirement as long as there is a valid cause of action that is not frivolous but because of FRCP 11. such as Legal contentions are warranted by existing law or nonfrivolous argument Factual allegations have evidentiary support or. modifying. can serve summons and complaint anyway if counsel can make a nonfrivolous. or reversing existing law or for establishing new law will have evidentiary support after reasonable opportunity for investigation or discovery 4. Look at purpose/effect of litigation i. Attorney certifies that denials of factual contentions are warranted on the a. What is improper? a. good faith argument that SOL has tolled 82 . Cause of action is not being filed for an improper purpose. and political factors that may be relevant to decision – a. expensive… ii. 2. whether it has began to run.1 – L may refer to moral. L can say that its immoral to file improper claim. Rule 2. and if it has expired a. there are kids involved.knowledge that after her inquiry: 1. economic. must be conscious of this 2. or reversing existing law or for establishing new law 1. if so specifically identified. such as harassment 1. Obligations on attorney in deciding whether or not to bring a case – i.

T hires Lasky. Must KNOW that they are not represented by counsel  actual knowledge!! iv. Contingency fee  83 . make research memo and keep it in your file so you can present it when you are met with frivolous claim opposition iii. Don’t have to disclose who witness is. Same allegations apply to defense counsel  answers cannot be frivolous CIVIL CASES – CLIENT-LAWYER RELATIONSHIP: FEES A. if so specifically identified. just fact that they met 2. If investigation shows claim to be frivolous. Factual allegations have evidentiary support or. P’s attorneys must consult with medical expert and show that medical expert believes there is reason for suit. will have evidentiary support after reasonable opportunity for investigation or discovery 1. most prominent antitrust attorney to petition SC a. Would be a real risk to serve without a good faith argument that it tolled b. If SOL is going to expire tomorrow. Can P attorney interview hospital doctors. Important cases that address size of attorney’s fee – i. If you are making an argument that there should be a new COA.5 – Fees 1. withdraw claim later 2. Rule 1. NY state law requires that before filing medmal action. just make the claim with the facts that you have and conduct investigation later on. Telex – 1. Medmal – look at medical records a. etc.i. prior to action? a.

Told D he had never done it before and that he worked on hourly fee basis b. etc. The practice of billing several clients at the same time goes against rule 1. Matter of Laurence Fordham – 1.5(a) – i. make sure you lay everything out and suggest client gets independent counsel at your expense. Court found – excessive fee a. 84 . has not earned 12 billable hours. Charged $40. There was a settlement and no one paid anyone anything 1. and no honest and fair man would accept it 4. C cannot be held to have understood such an unreasonable fee  was never given estimate like in Telex iii. this is fee ii. American Bar Association issues an opinion: The lawyer’s conduct should be such as to promote the trust of the lawyer and the legal profession. 3. K between C an L was not so unconscionable that no man in his sense and not under a delusion would make it on the one hand. has not earned 11 billable hours.i. Whether or not a K is fair is determined by the time at which it was made. Labor and skill required b. ** If your fee is way over what average lawyer would charge. Factors under Rule 1.000 retainer. Came up with very novel defense and got acquittal c. All T did was file to SC 2. If petition filed and T settles. A lawyer who has flown for 6 hours. Must specify what types of fees will be included such as medical records fees. The lawyer who has agreed to bill the time of one client should not do any other work for another client.) iv. Fordham.25 for 227 hours of work 2. $25. A lawyer who spends 4 hours on behalf of 3 clients. Fee customarily charged – other lawyers charged 1/3 as much iii.5. Time required – F spent more time than a prudent experienced lawyer would have ii. L gets 5% of net recovery but not less than $1mil iii. Result  L got $1mil ii. hired to handle OUI case a. very experienced.022. If writ denied and no settlement. when the fee will be deducted (from gross settlement or after.

(b) L shall explain matter to client to extent reasonably necessary to permit C to make informed decisions E. Decisions reserved to C – a. Not reasonable if time allotted was not sufficient to yield advice upon which C could rely D. (2) Reasonably consult with client about means by which objectives are to be accomplished iii. Testify iv. Under Rule 1. Constitution grants accused the authority to made fundamental decisions on – 85 . Barnes a. Criminal – i. L must abide 1. Rule 1.CLIENT’S ROLE IN ADVERSARIAL SYSTEM A. Civil – i. Jones v. Enter plea ii.4. Rule 1. (a) L shall – i. Comment 1. L must consult with C about means b. Appeal ii. Rule 1. Waive jury trial iii. (3) Keep client reasonably informed about status iv.4 – Communication a. Take whatever lawful and ethical measures required to vindicate C’s cause or endeavor C. (c) L may limit scope of representation if limitation is reasonable under the circumstances and C gives informed consent i. (1) Promptly inform client of any circumstance in which informed consent is required ii. Whether to accept/reject settlement b. (4) Promptly comply with reasonable requests for information v.3 – a. (5) Consult with client about limitation on L’s conduct if L knows that C expects assistance not permitted by Rules b. Means of pursuing such objections – controlled by L 1. (a) Objectives of representation – controlled by C i.2 – Scope of Representation and Allocation of Authority Between Client and Lawyer a. Canon 7: L should represent C zealously within bounds of law B.

and whether or not to appeal 1. Attorney would suffer unreasonable financial burden or has been rendered unreasonably difficult by C vii. Dissent – i.16 – Declining or Terminating Representation a. attorney has discretion on what issues to raise on appeal b. C discharges L b. (c) L must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. C persists in courts of action involving L’s services that L reasonably believes is criminal or fraudulent iii. d. Refunding any advance payment of fee or expenses that has not been earned or incurred 86 . such as – i. (b) L may withdraw if – i. Can be accomplished without material adverse effect on C’s interests ii. Giving papers and property to which C is entitled iv. Allowing time to get other counsel iii. C pursues objective that L finds repugnant or with which L has fundamental disagreement 1. L shall continue representation notwithstanding good cause for terminating the representation. Pleading.i. C has right to be unwise and to dictate which non-frivolous argues to raise  individual autonomy and dignity of client TERMINATING ATTORNEY-CLIENT RELATIONSHIP F. waiving jury trial. Rule 1. When ordered to do so by a tribunal. C has used L’s services to perpetrate a crime or fraud iv. Not obligated to withdraw if C just suggests ii. (d) Upon termination of representation. Ethical rule or law will be violated 1. Other good cause c. BUT. C substantially fails to fulfill an obligation to L regarding L’s services AND has been given reasonable warning that L will withdraw unless obligation is fulfilled vi. Physical or mental condition materially impairs L’s ability to represent C iii. Must be something that L does during representation v. L shall take steps to extent reasonably practicable to protect C’s interests. Reasonable notice ii. (a) L shall not represent or withdraw if – i.

1. In the course of representing a C. ii. b. “policy is $300.the attorney must disclose where a mistake to the amount of coverage is made. Make a false statement of material fact OR law to third person 1.1 states that the lawyer may ordinarily make misrepresentations about a “party’s intentions as to an 87 . Model Rule 4. Further. Don’t want to say too much to avoid giving legal voice [ie – “likelihood of recovery is not sufficient enough for our firm to take it] CIVIL CASES: ALTERNATIVE DISPUTE RESOLUTION A.000” and D knows its $1. While misrepresentations of opinions about the merits of the case are essential to the negotiation process. IE – P says.G. Caution client of SOL d. c. Notify non-client [prospective client] that they should seek advice of other counsel c. Insurance coverage information is not confidential information.000 and doesn’t say anything. Comment 2 to Rule 4. No affirmative duty to inform an opposing party of relevant facts 2. a. L shall not knowingly – i. A material fact 3. Also partially true but misleading statements or omissions that are equivalent of affirmative false statement i. Duty to disclose to correct a mistake by the other party about the basic aspects of the transaction and the failure to disclose violates standards of good faith and fair dealing. Not statement of fact – a.000. settlement authority is a matter of fact not opinion. misrepresentations of settlement authority are not. 2. Maybe give vague reason of why you aren’t taking it – i. 3 Things a Non-Engagement Letter Should Contain – a. Duty to disclose major procedural development mistakes about the amount of insurance coverage.1: Truthfulness in Statements to Others a. Misrepresentation can occur if L affirms a statement of another person knowing it is false a. Unambiguously say you aren’t taking representation b.

acceptable settlement of a claim.

i. You are permitted to lie (bluff) about the settlement amount
that the client is willing to accept.

d. Generally acceptable negotiation conventions estimate of
price or value of the subject of a transaction and party’s intentions re: acceptable settlement

i. IE – counsel says P wants his job back when he really doesn’t
 just misrepresenting what you are willing to settle for 1. Its not improper because the claim has a legal basisthere is no misrepresentation of fact or law- he has a right to ask for it. a. The only thing that is being misrepresented is the seriousness of the demand- it is flexible. b. CAN use false demands as bargaining chip ii. IE – CANNOT say discharge caused P to have emotional distress [improper misrep. of claim] 1. Here, the difference is that there is a misrepresentation that will affect a legal claim. e. BUT, if in front of TRIBUNAL, 3.3(a)(1) says you must be truthful

ii. Fail to disclose a material fact to a third person, when disclosure is necessary
to avoid assisting a criminal or fraudulent act by C, unless disclosure is protected by 1.6 1. Unless 1.6, L must disclose information to avoid assisting C in criminal or fraudulent conduct a. Usually can just withdraw to avoid assisting iii. Harrison- “I’m ready for trial”- proper. iv. Rule 8.3 does the attorney’s conduct raise an issue about his competence.- smell Alcohol- there may be a duty to report him. 1. Would you accept his settlement which is very low? a. The attorney should discuss this with his client because this may cost the client in the long-run. b. BUT if the client is willing to accept that settlement, what are your obligations? i. ACCEPT the settlement, except if you personally find it unconscionable- you can conflict out of it ii. There is no duty to accept a fair settlement.

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v. Is a confidentiality agreement that requires the opposing party to sign a confidentiality agreement about the settlement proper? 1. Depends on the jurisdiction a. Some jurisdictions recognize these confidentiality agreement i. Florida sees the confidentiality agreement as against public policy. 2. Rule 5.6b- any restriction that prohibits the lawyers right to practice is prohibited. b. Proper to make a threat of criminal prosecution in a civil matter if criminal and civil matter are related

B. Spaulding v. Zimmerman While Defendant’s counsel had no specific ethical obligation
to disclose Plaintiff’s life-threatening condition, they had reason to know that Plaintiff would not have agreed to the same settlement had he known of it. (Confidentiality Rule 1.6)- Defense attorney did not disclose that information. a. Sometimes the role of the lawyer in combination with rules that have narrow exceptionsprevent the lawyer from doing what is the right thing. i. How can you be a good lawyer, follow the professional rules, and be a good person, follow a moral compass. ii. Lawyers have a terrible habit of fitting of what they think the client’s objectives are and assume that it is selfish. iii. Lawyers failed to counsel their clients- ended tragically iv. The court failed – the court was silent to speak out when confronted with this issue. b. Takeaway Lesson

i. Counseling- Taking your client seriously as a person- communicate with the real
client- not a client stereotype to reach the appropriate result. Attorneys and clients should always talk with each on what to do.

ii. Sometimes things get better- Professionalism – Rule 1.6(b)- NOW attorneys are
required to disclose this type of information not just with the insurance company but also with the insured.

DELIVERY PRACTICE

OF

LEGAL SERVICES: ADVERTISING

AND

SOLICITATION & MULTIJURISDICTIONAL

89

A. Lawyer’s in private practice attract clients in: a. Reputation b. Court Appointments c. **Advertising and Solicitation i. The original 1908 canons deemed it unprofessional for lawyers to advertise. Rooted in the public interest-

1. Code did however recognize the value of limited advertising
a. Classified section (just name of lawyer) b. Building Office directory c. Letterhead and business cards.

B. Bates v. AZ State Bar Association –
a. Two AZ Lawyers rebelled against state bar association that banned advertising. They called their law firm a “Legal Clinic” with prices in the ad and placed ad in newspaper that advertised their services (nothing else)

b. Supreme Court- Advertising is constitutionally protected and could not be prohibited by
state

c. But – i. Lawyers have no First Amendment right to use advertisements that are false or
misleading

ii. Lawyers have no right to engage in in-person solicitation or live person
(telephone) solicitation 1. Recognize the difference between advertising and solicitation a. Advertising i. Non-targeted mass media b. Solicitation i. Targeted and Personal – ii. In person solicitation creates “special dangers” iii. You are allowed to solicit those where there is a prior professional relationship or family members. 1. Cannot solicit new clients (direct personal solicitation) iv. The material must say “THIS IS AN ADVERTISEMENT” v. Can a lawyer advertise by conduct a seminar? 1. Charitable, political- YES

2. For personal commercial purpose?
a. Generally PERMISSABLE, however are very risky. L may not directly instruct or direct

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NO f.than its fine. 8.Can you advertise that you specialize? i. Model Rule 7. “unmatched experience”. IE – “no charge for initial visit and no fees are due unless we secure a recovery on your behalf”  fees – 1. Just passed the bar. There must be a separation between the law firm and JG Wentworth e.Need to confirm that other firms actually charge a higher rate d. can you advertise that you never lost a case? i.5 – must tell client if going to be responsible for expenses b. Has the lawyer violated any rules of professional conduct? i. 91 . Name of the firm CANNOT imply that there is a government impression C.1 – a. Suppose former client sends people to the lawyer. L shall not make a false or misleading communication about L or L’s services i. If this is actually true. Need facts to back up statements. i. Misleading g.“more than 95% of our clients are satisfied with their work” i. Also misleading if will lead reasonable person to formulate conclusions about L or services for which there are no reasonable basis a. Assume the state that the state does not have certification. The lawyer hasn’t paid the former client. They can be available but cannot initiate d. Suppose a laywer was just admitted to the bar.slight puffery is ok.4(e) –It is professional misconduct for a lawyer to state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. NO as long as the client is not compensated. That sets higher expectations for the client ii. c.can you say you specializeNo h.anyone to call. False or misleading if – material misrepresentation or omits facts 1. “We offer discount fees”. Cannot pay for someone to directly refer clients e.

electronic communication unless person in (a) F. Can pay costs of advertising ii.5 – a. L can only say that they participate in partnership if that is a fact i. L may advertise through written. “1800-CASHNOW” Does not violate the MR. or electronic communication going to someone known to be in need of legal services must have on the front “Advertising Material” and at beginning of end of recording. Person made known they don’t want to be solicited ii. Cannot make it seem like two people are practicing law together if they are not  92 . L has been certified by an organization approved by state or Bar ii. Model Rule 7. recorded. unless – i. duress. Name of certifying organization is clearly IDed in the communication G. Cannot if – i. or electronic communication i. Can pay charge to be part of referral service c. Solicitation involves coercion.2 – a. L shall not give anything of value to a person for recommending L’s services.3 – a. L shall not state or imply that L is certified as a specialist. D. Can use trade name if in private practice if it does not imply a connection with government agency of public/charitable legal services organization i. close personal.4 – a. g.1 b. Comment 2 – what rule permits in advertisements b. Model Rule 7. or prior professional relationship b. Past performance is no indication of future performance. his name cannot be used in the name of law firm during any period that he is not actively/regularly practicing with the firm c. Person is a L ii. unless – i. live telephone or real-time electronic contact to solicit professional employment when motive is pecuniary gain.f. recorded. Model Rule 7. Can use “Patent Attorney” if admitted to PTO or “Protector in Admiralty” if engaged in admiralty practice c. harassment c. If does not violate 7. Every written. If L is holding public office. All communications pursuant to rule must have name and office address of at least 1 L responsible E. except – i. No in-person. L has family. L can say that L does or does not practice in a particular field of law b. Model Rule 7.

honesty or fitness as L iii.4 – a. Model Rule 8. L shall not form a partnership with non-L if any activities of partnership consist of law practice D. Engage in conduct involving dishonesty. Knowingly assist a judge or judicial office in conduct that is violation of applicable rules of law B. Model Rule 3. An agreement in which restriction on right to practice if part of settlement of client’s controversy 1. Professional misconduct for L to – i. deceit.4: a. L shall not share legal fees with non-L b. misrepresentation iv. Violate Rules or assist/induce another to do so ii. For all larger organizations that approach is unworkable.2 – a. L must make reasonable efforts to expedite litigation. Engage in conduct that is prejudicial to administration of justice 1.the lawyer represents all constituents of the entity jointly. fraud. Model Rule 5.Smith and Jones share an office but are not practicing together so cannot call themselves “Smith and Jones” MISCONDUCT A.6 – a. consistent with interests of client Business Formations Who is the client? Two Approaches • Group Theory. State or imply ability to influence improperly a government agency or official vi. IE – racism v.  Usually works in closely held corporations.where the lawyer has frequent contact with the shareholders (Ex. An agreement that restricts right of L to practice after termination of relationship ii. L cannot participate in offering or making – i. Basically. no non-compete agreements C. Model Rule 5. Jack and Jill) 93 . o o o In an effort to keep the relationship harmonious That approach is fraught with all kinds of danger. Commit a criminal act that reflects adversely on L’s trustworthiness.

o Advantage.• Entity Theory of Organizational Representation (Rule 1. Save money.Already have an established client relationship (client confidentiality).  3. Does the lawyer think that he will be impartial? o Here.more expenses  2.504) o 4 step process to determine whether we can do this  1. What if someone wants to leave the business. o What are the problems with taking a 10% interest in the business? 94 . how will the interests be divided. Whether the conflict is consentable? • Is there a fundamental antagonism? o o • McDow is putting up all the money. Determine whether a conflict exists • • Single.his impartiality is in doubt  • • At a minimum the lawyer must disclose this with the others The information between the parties must be disclosed? In multiple representation all the clients must be individual responsible.potential for antagonism.13) o Represents only the entity itself  Not an easy rule to put into practice because when a lawyer deals with an entity he is really dealing with people. Identify the Client • • • You can represent just the entity o Advantage- You can represent all the people o Advantage- You can represent just one or some.more likely that you will favor her Entity. the lawyer knows McDow and not the other.Cannot advocate for anyone person over the other.for the members.Because there is a long lasting relationship with one and not the others. • Problem 5-1 (p. more practical communication aspect also o Disadvantage.

 You are becoming a business partner.entering into a business transaction with the client and all the obligations under Rule 1.13 (c) Except as provided in paragraph (d). • Corporate Wrongdoing o o If you discover that there is something fishy in the corporation. o If the VP asks for advice. up the ladder. • Duty to Report. not her. to disclose the information out of the corporation • The information that is disclosed must be to the extent necessary to prevent substantial harm or violation of law.13  Reporting Up – (Mandatory) If an Officer is engaged in any activity that is likely to result in substantial harm to the entity (criminal or civil) the lawyer shall proceeded as reasonably necessary – MUST report to a higher authority. If that reporting IS NOT enough. in the organization.Board of Directors To prevent violation of law or a substantial wrongdoing to the corporation    Reporting Out.to seek individual counsel and tell her that whatever she says will be used against her to the best interest of the corporation.not more. The VP is putting the company at risk by bribing others. the vice president is bribing others with giving them “something on the side” to renew the contract. You have to make sure that your malpractice insurance covers you as a member of board of directors. not required. • • Court will presume that the lawyer acted inappropriatelyheld to a higher standard.8 come into effect.give her corporate Miranda warning.the lawyer must acknowledge that his duty is to the ENTITY Rule 1.than the lawyer must report to an authority that is responsible to stop – Highest Authority.The lawyer is permitted (Since 2003). if (1) despite the lawyer's efforts in accordance with paragraph (b) the 95 . • Problem 5-2 o Your client.(Permissive) If the Board of Directors refused to act. company.Rule 1.

o This is another EXCEPTION to Client. such as a serious breach of securities law.6 96 . then the lawyer may reveal information relating to the representation whether or not Rule 1.is a deliberate failure of – conscious avoidance of the truth.gives rise to an inference that you know of a wrongdoing.6 permits such disclosure.Confidentiality under Rule 1. Lawyer needs to know that there was wrongdoing 2. that is clearly a violation of law.   o o 1. • ** Noisy Withdrawal. AND (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. disavows work done for the client and notifies the proper authorities of his/her withdrawal. Willful blindness. (doesn’t have to be a violation of law) You should lean towards reporting up. The conduct will likely result in substantial injury to the organization.where ordinary withdrawal is not enough-A noisy withdrawal is the public withdrawal of legal representation in which the lawyer. or a refusal to act.highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action. having knowledge of the client’s existing or potential improprieties.