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I. Introduction to Professional Responsibility • FOUNDATIONS of Professional Responsibility A. 3 Roles of a LAWYER *the tension of a L's roles requires the professional rules to navigate the tensions • (1) Lawyer-CLIENT i. FIDUCIARY Relationship = L owes C a DUTY to act in their C's best interests, w. special obligations to care for & protect the C's interests *vs arms-length business relationship where each party protects their own interest • 3 Speciﬁc Fiduciary Duties OWED to CLIENT: a. (1) Duty of COMPETENCE • MR 1.1: Competence i L SHALL provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness & preparation reasonably necessary for the representation. REQUIRED L have Knowledge / Skill / Preparation / Diligence = full understanding equivalent to the most seasoned L in that area of law - NOT just licensed as a Lawyer or to the best of the L's ability - L will be held to full competency of that area, NOT JUST what they know from day one b. (2) Duty of LOYALTY • such can be in jeopardy when L confronted with: i Conﬂicts of Interest • EX: Current Cs that become adverse; Current & former C that are adverse -> if have adverse Cs, at some point L will not be able to be loyal to both as is necessary ii Breach of Conﬁdentiality c. (2) Duty of CONFIDENTIALITY *when breach conﬁdentiality, also breach loyalty • Ethical Duty of Conﬁdentiality Owed vs A-C Privilege (Rule of Evidence) & Work-Product Doctrine (Discovery Rule) i MR 1.6: Conﬁdentiality of Information • (a) L SHALL NOT reveal info relating to the representation of C UNLESS / EXCEPTIONS... !  C gives informed consent - informed = L must ensure C fully understands the repercussions of allowing L to revealing the info at issue - consent = not required to be in writing unless rules specify, but good idea to have to prevent future issue/CYA !  the disclosure is impliedly authorized in order to carry out OR - impliedly authorized = info L must disclose in order to represent the C (EX: info to support an answer ﬁled) !  the representation of the disclosure is PERMITTED [allowed, but not required] by PARA(b) • (b) L MAY reveal info relating to the representation of a C to the extent the L reasonably believes necessary: [ may, not a shall > disclosure is not required by L if following situations exist, but L has the option to do so reasonably believes necessary...L may only disclose as much is needed to ﬁx issue presented] ! (1) to prevent reasonably certain death or substantial bodily harm; [*FUTURE LOOKING > if L is aware C is reasonably certain to commit a crime causing death/bodily harm in the future, L MAY reveal info only the necessary info to prevent it] ! (2) [CRIME / FRAUD Exception] to prevent C from committing a CRIME or FRAUD that is reasonably certain to result in substantial injury to the ﬁnancial interests or property of another AND in furtherance of which C has used or is using L's services; [*FUTURE LOOKING > to present C from committing a crime/fraud via use of L's services] ! (3) to prevent, mitigate or rectify substantial injury to the ﬁnancial interests or property of another that is reasonably certain to result or has resulted from the C's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; [*PAST LOOKING > builds on (2) to include past commissions of crime/fraud by C via use of L's services] ! (4) to secure legal advice about the lawyer's compliance w. these Rules; [*USE: allows L to secure legal advice in re to ethical compliance w. Rules] ! (5) to est. a claim or defense on behalf of L in a controversy btw L & C, to est. a defense to a criminal charge or civil claim against L based upon conduct in which C was involved, or to respond to allegations in any proceeding concerning L's representation of C; OR [*USE: if L enters suit OPPOSING C (ex: legal malpractice; C doesn't pay) -> L may disclose info necessary to demonstrate/justify actions or fees] ! (6) to comply w. other law or a court order • (2) Lawyer-JUSTICE SYSTEM...L is functioning as an OFFICER of the court in an Adversarial System of Justice
i. Adversarial System of Justice: characterized by: • (1) Neutral / Independent Decision-maker (ex: Judge / Jury / Arbitrator / Mediator) • (2) Competent Advocates zealously presenting the positions of each of the interested parties; & a. = Lawyers • GOAL > in order for the system to work, there must be Equally COMPETENT, ZEALOUS Advocates on both sides i FLAW: weakness of the systems is that > rarely are the advocates of each side equally competent & zealous • Solution = the BAR (test) > sets the minimum level of competency required to competently advocate *BUT ﬂawed solution > sets minimum, but still does not make the advocates even ii UNOBTAINABLE > justice is not always served b/c not all Ls are not equal (competently or zeal), BUT the closer to this goal both advocates are, the better the system works • (3) Rules of Procedure fairly designed to allow the presentation of relevant evidence to the decisionmaker a. Many sources of Rules all in the system MUST comply with & that level the playing ﬁeld: • Model Rules: i 3.1: no frivolous suits > duty imposed on those who ﬁle suits/documents, to ensure that there is an issue of materiality • Federal Rule 11 / FL Rule 57.105 ii 3.3: L may NOT put, facilitate or assist a lie in front of the court iii 3.5: L may not try to inﬂuence judges, jurors or other ofﬁcials by improper means - judge...bribe or ex parti communicating - jurors...cannot communicate at ALL with (look at; speak to; niceties; etc) iv 3.6: engage in trial publicity that has a substantial likelihood of materially prejudicing a proceeding • Rules of Evidence: intended to level the playing ﬁeld by allowing presentation of only relevant info that will not prejudice the court • Pre-Trial Discovery Rules: levels playing ﬁeld by allowing access to opposing party info • Rules of Civil Procedure • (3) Lawyer-HIMSELF...L as a person w. personal & ﬁnancial interests presents realities in owning a business & moral delimias i. Moral Dilemma: Guidance in the fact of Imminent Public Harm In re Paulter (CO 2002): Dist. Atty that impersonated Public Defender for the purposes of getting a murderer to surrender • ISSUE: does the DA's actions violate MR 8.4? • MR 8.4: "It is professional misconduct for L to:...(c) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation" a. Imminent Public Harm Exception > possible exists, but is not available to those death is not certain to reult • MR 4.3: "...when the L knows or reasonably should know that the unrepresented person misunderstands the L's role in the matter, the L shall make reasonable efforts to correct the misunderstanding" • HOLDING: Guilty on both accounts - 8.4: even if there was an imminent public harm exception, DA had options that would of complied with the rules & might of not resulted in any public harm - 4.3: DA deceived Neil; knew he misunderstood their relationship & took no steps to correct the misunderstanding • TAKE AWAY: If L is presented with choices one of which complies w. the rules, L MUST chose the option that conforms - In situations of possible imminent public harm, an exception may exist but ONLY if there is NO option that (a) conforms with the rules AND (b) MAY not result in harm - Guiding principle when presented with MORAL DILEMMAS B. Determining L's Professional Obligation: SOURCES of Guidance DILEMMA: L's 3 Roles creates a tension that makes it hard to decipher which takes precedent in making decisions SOLUTION: Creation of Rules/Standards & Legal obligations that set forth a L's professional obligation • 2 Applicable Categories of Rules: i. (1) Professional Rules & Standards Types: • ABA Codes of Ethics... Evolution: (1) 1908: ABA's Canons of Ethics (2) 1969: ABA's Model Code of Professional Responsibility -> FLAWS...(1) confusing structure; (2) presented Ls as advocates only (3) 1983/2002: ABA's Model Rules of Professional Conduct • Ethics Advisory Opinions: deals w. issues of interpretation of the rules - 2 Types of Opinions (all are NON-binding, but can usually be relied on in good faith): (1) formal opinions: those that the committee considers to be of widespread interest or unusual importance (2) informal opinions: most others • Specialized Codes • Practice Norms ii. (2) Law Governing Lawyers • TYPES a. Court Decisions...IMPORTANT source of obligations of professional conduct (judiciary regulates Ls) - render decisions in 5 categories: disciplinary...proceedings brought against lawyers charged w. violates of the rules malpractice...civil lawsuits brought by clients/3P seeking damages based on legal causes of action disqualiﬁcation...motions ﬁled as part of civil or criminal actions to disqualifying L of the opposing party from representing their C b/c of some ethical violation sanctions....motion ﬁled as part of civil or criminal actions seeking damages for some form of litigation misconduct criminal...cause of action for misconduct (i.e., contempt of court) b. Statutory Law...less signiﬁcant b/c regulation of lawyers & judges is a judicial obligation c. Administrative Rules & Regulations...gov agencies that have rules governing admission of practitioners & rules of conduct for practitioners before it (ex. IRS; SEC; PTO)
Administrative Rules & Regulations...gov agencies that have rules governing admission of practitioners & rules of conduct for practitioners before it (ex. IRS; SEC; PTO) d. Procedural Rules...applicable court rules e. Restatement (3d) of the Law Governing Lawyers...NOT law & ABA rules supersede - BUT, when restatements & rules differ, it may serve as the basis for revision of the rules • Other Source of Guidance: PHILOSOPHIES of Lawyering i. Operates on 3 interrelated levels: • PERSONAL...focuses on how lawyers integrate their personal & professional lives • PRACTICE...provides guidance to L on how to resolve difﬁcult issues that arise when practicing law that are not clearly answered by rules of conduct or the law governing lawyers • INSTITUTIONAL...looks at L's involvement in & position re issues as if facing the profession AS A WHOLE rather than the individual L ii. TYPES • Client-Centered Philosophy (Neutral Partisanship aka Hired Gun)...L takes any action that will advance C's interest so long as the action is not a clear ethics violation a. FLAW: morally unsound > requires L to engage in conduct violating conventional morality • Philosophy of Morality (based on SUBJECTIVE Morals)...L are morally/personally accountable for the actions they take on behalf of their C & must be prepared to defend the morality of what they do a. FLAW: some Cs are morally indefensible, but are still entitled to a fair trial • Philosophy of Institutional Values (based on OBJECTIVE morals)...based on social/professional values/norms • Philosophy of Self-Interest (defensive lawyering)...L who act in their own interest when confronted w. discretionary decisions iii. The Morality Question of Lawyering: How can L defend what is otherwise morally indefensible? • Monroe Freeman vs Michael Tigar: a. Guilty vs Not Guilty...it is easy to defend those that are positively not guilty no matter the charge; the challenge comes when it is unknown or possible the person IS GUILTY • Freeman...there are certain circumstances which are so morally repugnant that L should not defend a C in such circumstances • Tigar...even those that are accused of morally repugnant conduct need defense & deserve to be defended in the legal system i For the system to WORK, need competent zealous advocates on both sides requiring the parties w. their respective burdens • Society has decided that if the state cannot prove by the facts of the case beyond a reasonable doubt D is guilty, then he walks -> THUS, the state should be held to this by opposing counsel ii True Moral Basis of Lawyering: EVERYONE is Entitled to a Fair Trial *everyone is entitled to be put through the legal process to be found guilty or not > COPPOCK feels strongly in favor of • in order for our system to work best, there must be equally competent, zealous lawyers on each side • in order for each to be equally zealous there must be lawyers that are zealous about getting each person a fair trial C. Methods of Regulating Attorney Conduct • (1) Admission to Practice i. 3 General requirements: • (1) Graduate from law school (generally ABA accredited) • (2) Pass the state's bar examination - Exceptions...(a) reciprocity btw states; (b) pro hac vice...practice in a state for purpose of handling a particular matter *held to the standards of whichever state/jurisdiction in • (3) Applicants must be of "good moral character" (precise meaning is unclear) - CON...the Bar should only regulate those activities done after being admitted to the Bar • (2) The Disciplinary System: SELF-REGULATING...L's regulate each other *Criticisms > Public Control Needed: system controlled by lawyers can never properly regulate lawyers i. MR 8.3(A): Reporting Professional Misconduct - Afﬁrmative DUTY imposed on Ls to report misconduct by other Ls - FL's rules is VERBATIM to this rule • (a) [NARKING Rule] a L who KNOWS that another L has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that L's honesty, trustworthiness or ﬁtness as a L in other respects, SHALL inform the appropriate professional authority. - Knows...important distinction from 'reasonable should know' > requires actual conﬁrmed knowledge to enact the duty - Shall...mandating term > indicates an obligatory duty - ISSUE: some debate whether there should be an afﬁrmative duty to nark on fellow lawyers • (b) [re JUDGES] a L who KNOWS that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's ﬁtness for ofﬁce SHALL inform the appropriate authority - ONLY difference from (a) is the application: (a) = lawyers; (b) = judges - Fitness...only ﬁtness listed, but in re to judges, encompasses honesty & trustworthiness • (c) [EXCEPTIONS] this Rules does NOT require disclosure of info otherwise protected by Rule 1.6 OR info gained by a L or judge while participating in an approved L's assistance program - MR 1.6 TRUMPS 8.3 > this rules does not require disclosure of info otherwise protected by rule 1.6 (conﬁdentiality to the C) - application: if L-L = C-L...if the violating L is the C to the obligated L, then the obligated L is NOT required to disclose - makes important: HOW the info is discovered > under the guise of getting counsel or happened upon? Role violating L acting in > if CLIENT...1.6 applies / if COUNSEL...8.3 applies
.. as an adversarial system.. the system must ﬁrst protect the RIGHT to COUNSEl.. did L's mess up matter? . Practice of law is like free speech -> it defends what we hate as well as what we most love • this LAW does not know if the D is guilty or not.. in order to protect these rights... & it trying to ﬁnd out -> in order for it to be able to do that. STANDARD: Strickland v. but A1 onto fact A2 did so with several other cases.why take a case where know D is likely guilty? • Charles P. the Rules .including CRIMINAL DEFENSE Attys that ensure all those accused of intolerable acts receive a fair trial b. does not matter what the Lawyer or Judge think > they are there to facilitate their role • Monroe H. Application in the Law Firm Weider v. RULES ALWAYS SHOULD BE COMPLIED WITH • (3) Civil Liability & Criminal Punishment i. Civil Liability Methods • Legal Malpractice. 2 Causes of Action: • (1) Criminal Appeal: Ineffective Assistance of Counsel = when ineffective representation requires reversal of a conviction a. the role of our system..WHY: puts an associate in position of comply w.Competent representation requires the legal knowledge.L SHALL provide competent representation to C.intended to coerce compliance w. Criminal Law: Ethical Obligations of the Defense & Prosecution • Client-Lawyer Relationship A. POLICY: Justiﬁcations for Defending the Guilty. a person might not be B. • BREACH of DUTY i. Er -> no such decision... vindicate the court's authority or deter future conduct . MAIN RULE APPLIES TO: Rule 11 of the Federal Rules of Civil Procedure -> rule forbidding frivolous law suits ii..ii.New Answers to Old Questions i. can recover damages from L (or their malpractice insurers) for some form of L misconduct . thoroughness & preparation reasonably necessary for the representation.Implied in all L's employment K an obligation to comply w.. Mitchell: The Ethics of the Criminal Defense Attorney .. it needs each side to advocate & defend their side so that all the pros/cons come out & the LAW can then decide which side prevails a.. A2 lied & neglected case. Criminal CoC. but ONLY EVIDENCE of malpractice. Barry Winston: Stranger Than True . A1 tried to get ﬁrm to reprimand &/or report him.1: Competence.ALL L have legal malpractice insurance .(1) Did L mess up? / (2) If yes. Washington Test. & in some cases 3rd P. requires the performance of Ls . that obligation is a breach of K . .due process safeguards apply (hearing/notice) b.motions ﬁled seeking a court order that the opposing party's counsel not continue to represent that party b/c of some violation of the Rules typically a conﬂict of interest • Monetary Sanction.not often given b/c of inadequate compensation for indigent clients i. skill.Legal malpractice requires an EXPERT WITNESS • Disqualiﬁcation Motions. quality of the system: ONLY as good as those who make it work.for litigation abuse is another form of civil liability that in recent yrs has come to have an increasingly important impact on L conduct a.. Freedman & Abbe Smith: Understanding Lawyers' Ethics i...plays role directly (vioaltes criminal standards) & indirectly (inﬂuence disciplinary standards) • Contempt of Court a..Violation of the Model Rules in NOT PER SE malpractice. MR 1. system is weighted to protect the innocent's dignity & autonomy (even at the cost of not catching the guilty) ii. Rules or comply w.D carries the burden of proof 4 . Justice System = SCREENING System > sorts out those whose deviancy has gone beyond what society considers tolerable. is to protect our fundamental constitutional rights ii. ﬁrm refused & ﬁred A1 for pressing issue • ISSUE: Does the ﬁrm breach A1's contract by ﬁring him for his insistence to follow the rules? a. despite employing Ls at will. Firm PoV: A1 was an at will Ee & was not contractually obligated to comply with the Professional Rules of Conduct • TAKE AWAY: A law ﬁrm. a court's order rather than punish for violation II. Curtis: The Ethis of Advocacy i... Defense Counsel's DUTY of COMPETENCY • = ethical mandate L provide competent representation applies to criminal cases to *reality.. b/c it affects one's access to all other rights • constitutional rights of the accused: personal autonomy / effective assistance of counsel / equal protection of the laws / trial by jury confront witnesses / require the gov to prove guilt beyond a reasonable doubt & w/o the use of compelled self-incrimination • John B.when order is intended to punish misconduct. REMEDY: reversal of conviction b. Civil CoC. Criminal Law. to criminal • process: neighbors --who report to--> police --decide whether to arrest--> prosecutors --decide to charge--> courts --decide to convict--> juries a. the Rules & ﬁring someone for complying w.THE standard Oversimplyﬁed. .Why I Defend Guilty Clients • You can't be sure of an accused person's guilt > even if they think they are guilty. Skala: associate at ﬁrm (at will Ee) had another associate help him purchase condo. CANNOT ﬁre a L for complying w.catch-all phrase that refers to a group of causes of action by which C..
. but good reasons for his choices of tactics • (2) [L's MESS UP MATTER?] Any deﬁciencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance .[1-8] are factors for determining the reasonableness of a fee: a. witness D wants is lying (Problem 2-2) • policy. Funds SHALL be kept in a separate account maintained in the state where L's ofﬁce is situated.. AND *higher price truly should reﬂect value of service > important NOT to undervalue services b/c assumed that is all you are worth h. (1) the division is in proportion to the services performed by each L or each L assumes joint responsibility for the representation b..STANDARD: Strickland v.court hesitant to 2nd guess counsel b/c may be unknown & not obvious. charge. REPUTATION & ABILITY of the L or Ls performing the services.situations were prejudice is presumed: ! Def counsel has an actual conﬂict of interest that affects the representation ! Def counsel fails to follow the D's instruction to ﬁle an appeal ! Def counsel entirely/completly (no refuting at all) fails to subject the Pr's case to meaningful adversarial testing • (2) Civil Case: Legal Malpractice via Ineffective Assistance of Counsel = ineffective representation amounts to negligence by DC *same cause of action. (1) [Time & Effort] the TIME & LABOR required. f. REMEDY: damages b. that the acceptance of the particular employment will preclude other employment by L c. Washington Test. (2) C agrees to the arrangement. (1) Duty NOT to COMMINGLE L & C's funds: L must keep C & 3P money/property separate from own personal & ﬁrm funds • POLICY: (1) Prophylactic against L misuse of C funds & (2) Protects such funds from being subject to the claims of L's creditors .don't like > hard to explain to judge why charge a friend less than a new C. the result of the proceeding would have been different • EXCEPTIONS. a strong rebutable presumption that L's conduct was reasonable (aka effective) *in doing hypos. & the agreement is conﬁrmed in writing. & the basis or rate of the fee & expenses for which C will be responsible SHALL be communicated to C. including the share each lawyer will receive. charge. d. separate from L's own property.causation argument > if.. must consider reasons WHY DC might of acted as they did > offense to jury. D was going to be convicted any way. witness might have good answer..5 yrs after termination of rep. standard of "reasonably effective assistance" . no harm was done ii prejudice = D must show there is a reasonable probability (aka probability sufﬁcient to undermine conﬁdence in the outcome) that. all their Cs $ in together > just have to keep accounting of whose $ is whose 5 (b) L w/draws fees earned or expenses incurred from these funds as they are earned/occured .Any changes in the basis or rate of the fee or expenses shall also be communicated to C • (c) OMITTED re Contingent Fees • (d) L SHALL NOT enter into an arrangement for. Complete records of such account funds & other property shall be kept by L & SHALL be preserved for.aka is there a reasonable chance the outcome would of been different w/o the mess ups? i policy. or collect an UNREASONABLE fee or an unreasonable amount for expenses.. .. or elsewhere w. the consent of C or 3P. C *coppock. b.EXCEPT when L will charge a regularly represented C on the same basis or rate. & the SKILL requisite to perform the legal service properly.. the NOVELTY & DIFFICULTY of the questions involved. MR 1. BUT FOR counsel's unprofessional errors.. a... e. preferably in writing. or collect: a.(1) Did L mess up? / (2) If yes. (2) [LIKELY LOSS of Additional Business] likelihodd. including prevailing norms of the profession • breach of a model rule is evidence of poor conduct. (3) the total fee is reasonable • C/3P Property: L's Obligations re Trust Accounts & Client Property i. a rep.5: Fees • (a) [No UNREASONABLE Fees] L SHALL NOT make an agreement for. Other property SHALL be ID as such & appropriately safeguarded. (7) the EXPERIENCE.THE standard Oversimplyﬁed. (2) a contingent fee for representing a D in a CRIMINAL case [POLICY. before or w/in a reasonable time after communcing the rep..did L's conduct being challenged fall below the acceptable standard of what a reasonable L would do in the same situation? i evidence: can use all facts & circumstances. if apparent to C. .would put L's interest opposing C's interest > would pursuad L not to plea bargain OR take only not guilty Cs] • (e) Division of a fee btw Ls who are NOT in the same ﬁrm may be made only if: a. often more difﬁcult to attain b/c of hurdles erected by courts (CA: D must prove actually innocent w/in statute of limitations) C.. did L's mess up matter? . different remedy sought a.15: Safekeeping Property (*single biggest reason why L's get in trouble) • (a) L SHALL hold property of C or 3P that is in a L's possession in connection w. better to frame as a discount g.D carries the burden of proof • (1) [L MESS UP?] D must show that L's performance fell below the OBJ. MR 1.... BUT it is NOT despositive ii standard of scrutiny: court gives HIGH judicial deference to counsel w. AND c. (4) the AMOUNT involved & the results obtained.VERY serious duty > Ls punished even when no harm resulted or done innocently • METHOD to deal: Escrow or Trust Accounts (a) each L can have one general trust account w. (8) whether the fee is ﬁxed or contingent • (b) [SETTING of SCOPE & RATE] the scope of the rep. (6) the NATURE & LENGTH of the professional relationship w. LEGAL FEEs in Criminal Defense Cases • Legals Fees: Acceptable Rates/Types & When to Set i.. (3) the fee CUSTOMARILY charged in the locality for similar legal services. despite L's mess up. (5) [Turn-Around Time or Time Sucking Cs] the TIME LIMITATIONS imposed by the client or by the circumstances. D trying to lie on stand. .
.. (2) ALL special retainers paid in advanced (including ﬂat fees) must be deposited in the C's trust fund UNTIL EARNED • POLICY: .. upon which it should be transferred to the L's General Fund c.. it is the C's money or L's money prior to completion of services? (2) Are non-refundable fee advances ethical? 6 . whose money (C or L) an advanced fee is i earned... L SHALL promptly deliver to C or 3P any funds or other property that C or 3P is entitled to receive &.PRESUMPTION of special retainer w. one • MUST be placed in C's trust account & any unused portion repaid to C • Ethical OBLIGATIONS re Retainer Fees a.fee comes off the top (30% of TOTAL settlement) d. but when services are rendered ii unearned.METHOD to deal: Escrow or Trust Accounts (a) each L can have one general trust account w.L's $ > becomes such not when paid. fee is 30% & costs are $10K > C gets $90K. (1) L are required to deposit ALL advance payment of fees in a C trust account. only paying a reasonable amount for services received e... Expense Deposit = an amount paid by C to L to be applied against future expenses in C's case *not a retainer.5(a) > Duty not to Commingle Funds. by protecting C's unqualiﬁed right to discharge L w. L SHALL promptly notify C or 3P. (2) Duty to Maintain Records: L must keep careful records of C's money/property that comes into their possession • (b) [BANK SERVICE CHARGES] L MAY deposit L's own funds in a C trust account for the sole purpose of paying bank service charges on that account.enables C to realistically dispute a fee where the funds are already in L's possession by disallowing L of a self-help resolution by L's possession instead preserving the disputed funds intact until the dispute is resolved • EARNED vs UNEARNED.basis for est. Apland (IA 1998): truck driver charged ﬂat fee... all their Cs $ in together > just have to keep accounting of whose $ is whose (b) L w/draws fees earned or expenses incurred from these funds as they are earned/occured b.are what L gets paid when earned costs. CLAIMS of INTEREST] When in the course of rep. BUT must be taken out right away when earned or expenses occurred (otherwise L & C $ is commingling) • When EARNED: when L earns his fee. BUT ONLY in an amount necessary for that purpose • (c) [WHEN can WITHDRAWAL] L SHALL deposit into a C trust account legal fees & expenses that have been paid in advance..fee that embraces all work to be done whether it's relatively simple & short duration or complex & protracted c.. SHALL promptly render a full accounting regarding such property a. to be w/ drawn by L ONLY as fees are EARNED or EXPENSES incurred • (d) Upon receiving funds or other property in which a C or 3P has an interest. the Consideration = L's availability on a continuing & regular basis for any legal issue C has • When EARNED: when fee paid > b/c consideration for the payment is L's availability i MUST be kept in ﬁrm's general account b/c L's money (must be kept seperate from C's $) b. fees. General Retainers = fee paid on a regular & continuing basis in exchange for L making his services available whenever needed • Option K w. EXCEPT as stated in this rule or otherwise permitted by law or by agreement w.are what L writes a check for to pay on the behalf of the C EX: $150K settlement. Application Iowa SC Board of Prof Ethics & Conduct v. L is in possession of property in which 2 or more persons (one of whom MAY be L) claim interests.preserve C's property from the reach of the L's creditors -> very important to keep unavailable to 3Ps who may have a claim of right in L's property . usually as hours are put in or services rendered (*still must place in C Trust Fund & only withdrawal the $ as it is earned) • Other types of SR: i Advance Fee Payments = if C/L agree fee to be paid in advance ii Flat / Fixed Fee. L having the burden to rebut the presumption by a convincing preponderance of the evidence • POLICY: presumption re Hybrid Agreements (those that contain elements of GR & SR).. (1) Retainers • TYPES: a.. ok for general retainers b/c earned upon payment) • FEEs vs COSTs. C... but no signed agreement & deposit of $ • ISSUE: (1) When charging a ﬂat fee. the property SHALL be kept separate by L until the dispute is resolved.. (4) Possible. (3) L who w/draws from employment SHALL refund promptly any part of a fee or costs paid in advance that has not been earned • = NONREFUNDABLE fees are NOT allowed (*in re to special retainers. obligated to regarding such money & property • (e) [MULT.L's money & C's money are to be kept separate b. L shall promptly distribute all portions or the property as to which the interests are not in dispute [EX: nursing home neglect cases > medicaid would ﬁle a lien on any settlement elderly negelected person recieved b/c right to recover $ originally paid out given back] • ETHICAL ISSUES Re Certain Types of FEEs i.. but usually paid along w...C's $ > any portion of a special retainer paid in advance remains the the C's Trust Fund it it has been earned by L. Special Retainer = covers payment of funds for a speciﬁc service • C's money until earned > MUST be deposited in Client Trust Account (to be kept seperate from Attorney's $). EXCEPT general retainer fees • WHY: MR 1. = • (3) Duty to Notify Promptly C or 3P when Ls receive money or property in which C or 3P have an interest • (4) Duty to Deliver Promptly to C or 3P any funds or other property in which such person has an interest • (5) Duty to Render Full Accounting: if requested. upon request by C or 3P.
L. if the limitation is reasonable under the circumstances & C gives informed consent • EX: H ﬁling for divorce & wants to ﬁle for bankruptcy.. surrendering papers & property of fee or expense that has not been earned or incurred. C as to the means by which they are to be pursued.interest earned from these accounts taken by FL Bar & pays those cheated by their L ii. by appointment.ALSO. of C if: • (1) representation will result in violation of the rules of professional conduct or other law.L MAY take such action on behalf of C as is impliedly authorized to carry out the representation.. of C. When ordered to do so by a tribunal. allowing time for employment of other counsel. • (2) C persists in a course of action involving L's services that L reasonably believes is criminal or fradulent.. OR • (7) other good cause for w/drawal exists iii. = L cannot tell C how to do criminal or fraudulent conduct. Must take $ out of the trust as it is earned & as it is spent b/c funds can't commingle f.. this is even such for ﬂat fees as there is a public interest in protecting the C's right to chose their attorney & ﬁre those that do not properly render services. L SHALL abide by C's decisions concerning the OBJECTIVES of rep. aka completion of service. as to a plea to be entered. B. which L has a fundamental disagreement. such as giving reasonable notice to C. • (3) C has used L's services to perpetrate a crime or fraud... In a criminal case. whether to waive jury trial & whether C will testify.if authority belongs to C. of a C. but L may discuss the legal consequences of any proposed course of conduct w. legally technical or bias cases (4) (criminal) whether C will testify > HUGE decision. • Delegates AUTHORITY btw C & L. FL > IOTA (Interest On Trust Account). & ok as long as C consents iv.C has constitutional right to testify . &. SHALL w/draw from rep.L SHALL abide by C's decision whether to settle a matter (CIVIL CASE). (d) L SHALL NOT counsel C to engage. POLICY: prevents L from having a ﬁnancial interest that would interfere w. L SHALL continue representation [in spite of] good cause for terminating the representation iv. . OR • (3) L is discharged ii. (3) Literary or Media Rights to portrayal of case > Model Rule 1. relating to the representation a.bench may be preferable for either highly sympathetic cases. (b) [NO IMPUTATION] L's rep.• HOLDING: All special retainer fees are C's money until earned. C if: • (1) w/drawl can be accomplished w/o material adverse effect on the interests of C.L cannot facilitate C perjuring herself (5) whether to appeal the case ii. so either D or Pr can envoke that right . L must advise but ultimately MUST abide by C's choice a. a L SHALL NOT make or negotiate an agreement giving L literary or media rights to a portrayal or account based in substantial part on info. CLIENT's calls.not a necessary rule] iii. (b) [When L MAY Withdraw] EXCEPT as stated in para (c).. or assist a C. BUT may tell C if conduct proposed is criminal or not • MR 1. • (6) representation will result in an unreasonable ﬁnancial burden on L or has been rendered unreasonably difﬁcult by C. • TAKE AWAY: Use common sense > smartly handle fees. L SHALL NOT rep C or... in conduct that L knows is CRIMINAL or FRAUDULENT.BUT. where rep. scope. • (5) C fails substantially to fulﬁll an obligation to L regarding L's services & has been given reasonable warning that L will w/draw unless the obligation is fulﬁlled. but L wants to limit the scope of rep. • (2) L's physical or mental condition materially impairs L's ability to represent C. L SHALL abide by C's decision. Communications re PAST & FUTURE CRIMES 7 . (a) [When L MUST Withdraw] EXCEPT as stated in para (c). • (4) C insists upon taking action that L considers repugnant or w.. (2) Contingent Fees > Model Rule 1. (a) [DELEGATION of Authority btw C & L] Subject to para (c) & (d). including rep. Rules Re: • MR 1.4. C & may counsel or assist a C to make a good faith effort to determine the validity. L SHALL take steps to the extent reasonably practicable to protect a C's interests..5(d) prohibit contingent fees in criminal casses iii.16: Declining or Terminating Representation i. applicable law requiring notice to or permission or a tribunal when terminating a rep.many states prohibit criminal defendants from proﬁting from commercial exploitation of their crimes • CONFIDENTIALITY: Scope & Limitations A. meaning or application of the law. have Ks.8(d) prohibits giving L such rights PRIOR to the conclusion of representation of a client • MR 1.. social or moral views or activities [= it cannot be imputed to L what defending / advocating on behalf of C. This is mirrored by the presumption favoring special retains over general retainers. has commenced. It is unethical to have non-refundable fee advances for these same reasons. (d) Upon termination of rep..L might be included to forgo plea bargain & make a theatrical court case ..incompetency is reasonable reason.. economic... L MAY w/draw from rep. after consultation w. L may retain papers relating to C to the extent permitted by other law. SHALL consult w. deposit $ in account & keep records. (c) L MAY LIMIT SCOPE of the rep. ..8(d): Prior to the conclusion of rep. their independent professional judgement ex. (1) objectives of representation = ultimate goals C wants out of the legal dispute (2) (civil / criminal) settlement / plea > L must advise C of ANY offer made (3) (criminal) bench trial vs jury trial > both sides have a constitutional right to a jury trial. to divorce b/c not competant in bankruptcy .COPPOCK.. as required by Rule 1. (c) L must comply w. does not constitute an endorsement of C's political.2: Scope of Representation & Allocation of Authority Between Client & Lawyer i.
but only ask Ls to refrain from active concealment which contributes to the crime • (3) Turn Material in Possession OVER to Authorities a. (2) Prevention of FUTURE Harm (MR 1.. whether in connection w.. (2) Attorney-Client Privilege (rule of EVIDENCE): deals w.can compel L to testify IF advise was sought in the furtherance of future criminal conduct **BIG DIF.if C reveals possible future criminal conduct w/o seeking advice regarding it. District Attorney for the Suffolk District: T asked advice from P...in such case. L SHALL NOT counsel or assist another person to do any such acts *such an obligation does NOT apply if L is only aware of where the evidence is.. though some states may allow L temporary possession for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence 8 ... L may reveal such info to stop the crime BUT cannot be compelled to testify b. use as bargaining tool or turn it in annoymously (ﬂaws w.. but does not have it in his possession . Attorney-Client Privilege • SCOPE: applies only when C's communication was for the purpose of obtaining of legal advise i burden: person asserting the privilege must prove it is applicable • EXCEPTION: L can be compelled to testify only if C's communication seeks assist. as long as advise was not sought to help facilitate the crime iii. P could still assert the A-C privilege to keep from testifying.... the question of when L may be compelled in court or other ofﬁcial proceedings or investigations to reveal info received in conﬁdence from C • POLICY: founded on the necessity that C be free to reveal info to L w/o fear of its disclosure so that C can obtain proper & funny informed legal advice • AC Crime Fraud EXCEPTION vs Ethical Duty Crime-Fraud Exception: Purcell v.no public interest in the preservation of the secrecy of legal advise for committing criminal conduct ii burden. each) i.did C seek out L's advise for the purpose facilitating a crime/fraud? L ethically may disclose conﬁdential info to prevent C from committing a crime that will harm another W/O being compelled to testify about the communication. (3) PAST Wrongful Conduct (MR 1.. destroy or conceal a document or other material having potential evidentiary value. Why take POSSESSION? • (1) could exculpate (clear) C • (2) to prevent Pr from ﬁnding the material in the normal course of the investigations.. THUS. ISSUE: is T entitled to the protection of the attorney-client privilege in the circumstances? a.. T arrested > DA tried to compell P to testify.if L has materials. c.. (1) Ethical Duty of Conﬁdentiality (Model Rule 1. (3) Work Product Doctrine (DISCOVERY rule): preventing discovery of material prepared in anticipation of litigation UNLESS party seeking discovery makes a special showing that. ETHICAL.L taking the evidence & concealing. but still refuses to do so a.. is subpenaed to give them up. P told police T likely to commit arson.opponent trying to compel testimony must prove the exception applies iii vs.. L could either (a) ﬁle a motion in limine seeking to prevent use of the material based on the 5A privilege OR (b) hold the material until supoenad.Communications re PAST & FUTURE CRIMES • 3 Distinct Concepts of Conﬁdentiality: (ALL VERY IMPORTANT) i. in or furtherance of FUTURE criminal conduct i policy. Ethical Duty of Conﬁdentiatility Crime/Fraud Exception DoC.Tangible Criminal Material = fruits of criminal conduct (stolen money). L's ONLY obligation is to NOT tell others of knowledge b/c would violate Duty of Conﬁdentiality.6) = Ls must maintain the conﬁdentiality of info relating to the REPRESENTATION under all circumstances..e. 3 Levels of Approaches when L comes into possession of Tangible Criminal Material: • (1) Active Concealment.when L can be compelled to testify about C committing future criminal conduct > advise sought in furtherance .6(b)(2)): disclosure of past conduct ONLY when such will PREVENT reasonably certain death or substantial bodily harm -> cannot disclose past conduct unless there is a future reasonably certain harm ii.. (1) Informed Consent (MR 1.goes far beyond & abuses obligations of a L in protecting his C to the point L has committed a crime of his own (accessory after the fact) • (2) Passive Concealment.allows L to reveal C's communication to the extent necessary to stop a reasonable certain crime ACP.4(a): A L SHALL NOT unlawfully obstruct another party's access to evidence or unlawfully alter. court proceedings or otherwise • LIMITATIONs re Past & Future Crimes a. do not require an afﬁrmative obligation to turn materials over to authorities.6(b)(1)): L MAY when disclosure would prevent C from committing a wrongful act c. & use it as a bargaining chip for "Use Immunity" a. BUT can advise C to give up. TAKE AWAY: Big Question re if L can be compelled to testify OR only ethically disclose conﬁdential info .. (1) he has a substantial need for the materials & (2) he can't obtain equivalent materials w/o undue hardship C. Possession of TANGIBLE CRIMINAL MATERIAL . & move to quash the subpoena based on the 5A privilege • (3) involuntarily came into possession (delivered annomously) ii.. hiding or destroying it a. contraband (possession is illegal.. i.6a): L may reveal conﬁdential info if the C gives informed consent b.for same reasons as active concealment • some states diffe.such is required by the MR. if Pr rejects Use Immunity. drugs) OR tangible evidence of crimes (incriminating documents or tape recordings) • GENERAL OBLIGATION: MR 3. instrumentalities of crimes (weapons). UNETHICAL.. ONLY that T told P about the crime while obtaining advise regarding another situation.. UNETHICAL.. HOLDING: P did not have to testify b/c there was no evidence T sought L's advice to facilitate the crime.
D that has testiﬁed falsely.. resulting in ability of false testimony to take place b. • client.such is required by the MR. • (1) make a false statement of fact or law to a tribunal OR fail to correct a false statement of material fact or law previously made to the tribunal by L ..D L is precluded from arguing against the chain of custody > b/c w/o the chain of custody the evidence is useless • 3rd party. If D.. OR 9 (2) FAIL to CORRECT material statements it ﬁnds out are false .) • PRO: obligations of DC are rooted in the conﬁdentiality of communications btw L & C • CON: unethical & undermines the integrity of the adversarial system > COPPOCK hates. but goes a little far iii. (1) Passes problem along > next counsel either faces same dilemma OR C now knows what can/cannot be told to a L. i.if info protected under the A-C privilege is revealed by L to a 3P working for him in order for the 3P to retrieve that evidence....NO A-C Privilege . of which L learns afterwards • POLICY: 5 Approaches Defense Counsel can take. Depends on ORGINATING SOURCE. L has an obligation to turn over iii. (3) Withdrawal w/o Disclsoure..3(a)(3): (Candor) L SHALL NOT knowingly. by altering or removing the evidence has precluded the Pr from discovering the it.BUT if 3P leaves evidence. likely a Judge will deny motion to withdrawl as counsel • or Judge may order L to reveal reason for w/draw. the C's privilege is preserved • (2) Chain of Custody Stipulation.. (5) Avoidance of Knowledge.AND by refusing the prosecution an opportunity to disclose the source of the evidence.re LAWYER's statements > L cannot (1) KNOWINGLY make false statements to the tribunal.L withdraws from the case & still protects the conﬁdentiality of client communications • PRO: Protects client conﬁdentiality • CON: a.in most circumstances.... then the court is likely to protect Pr's need to show a chain of custody.. (2) Great transaction costs > costs more money than handling it yourself c. etc..L can refuse to accept the evidence &/or advice 3P to turn evidence over themselves i EXCEPTION: 3P working for L ..L could never under any circumstances participate in a fraud on the court .BEST USE: where w/drawal is not feasible.. the evidence's source are protected by the A-C Privilege so that it may not be revealed to the jury ! POLICY: law's attempt to balance protection of 2 conﬂicting interests (discovery of pertinent evidence & A-C privilege) ... "don't tell me if you did it or not b/c that attaches to me certain obligations that I do not otherwise have" • PRO: allows C to freely testify & L to advocate C's version of the facts free of obligations • CON: could undermine the integrity of the adversarial system • RULES re: i.D that insists on taking the stand & testifying falsely completed false testimony.the D might have to stipulate to the chain of custody OR the privilege is waived ! POLICY: Pr needs to be able to prove the chain of custody of the evidence that comes into their possession in order for the evidence to be admissible. FALSE TESTIMONY by the Criminal Defendent contemplated false testimony..opposite of Freedman > requires DC to expose ANY lie a C may or intends to tell • PRO: integrity of the adversarial system outweighs all other things • CON: ignores the importance of C conﬁdentiality to individual liberty > COPPOCK. though some states may allow L temporary possession for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence • IF given evidence via 3rd Party. DC should do nothing & continue as if testimony were truthful (base arguments on C's statements.Requirements of DC. NOT evidence: • 5A Privilege protects a D from being compelled to give incriminating testimony only > it does NOT bar the use of incriminating purely evidential material (nontestimonial) against a person D.DC should avoid knowing that C intends to testify falsely > use particular phrases to obtain all the facts w/o committing their Cs to a particular version of what occurred • EX: "what the prosecution is likely to say" & "your memory of what happened" (as opposed to "what happened").DC allows C to take the stand to make a statement concerning the case to the triers of fact > does not ask Qs ..when give to Pr... (2) DC can ask some Q if believes C will not give perjurous answer to.. MR 3..very unethical ii.ETHICAL... (4) Narrative Testimony.(1) DC must state for the record C is taking the stand against the advice of counsel. by which the public interest is better served ... (3) DC may not later argue C's known false version of the facts • PRO: honors C's right to take the stand & balances both interest by infringing on both -> prejury may takes place & conﬁdentiality is infringed upon... Testimony...thoughtful.. ABILITY to CONCEAL the SOURCE: • A-C PRIVILEGE: Application after criminal material turned over to authorities a. (1) Full Representation (by Monroe Freedman). might be able to conceal where it came from as evidence b/c A-C PRIVILEGE applicable i 2 Approaches: • (1) A-C Stands.... still violating the conﬁdentiality of C communication iv. & C insists upon testifying perjuriously .. .evidence given to L by a 3P must be immediately turned over & the source cannot be concealed ..protecting C & L allows the prosecution to recover more evidence. (2) Full Disclosure to the Court (by Cheif Justice Warren Burger). b/c Judge/Jury likely know that DC does not trust his own C's testimony • CON: (a) both interests infringed upon & (b) allows C to possibly perjure himself w/o DC knowing if so v. then the privilege extends to that 3P (3P can't be compelled to disclose the source) • 5th Amendment Privilege Against Self-Incrimination a.. (3) If close to trial.L can refuse the evidence or advise the 3rd party to hand over themselves .even if DC KNOWS a C is/will lie.
re LAWYER's statements > L cannot (1) KNOWINGLY make false statements to the tribunal. (5) NARRATIVE TESTIMONY (see above for more) • Prevents L from facilitating the lie. (3) Judge may factor in belief D testiﬁed perjuriously when sentencing (4) could be prosecuted for perjury (5) forced ethical withdraw of L or disclosure to tribunal of false testimony ii. including 3P witnesses C wants. switched story to DC from he BELIEVED Love had gun > he saw a gun. (3) Responsibilities of L after becomes aware C lied on the stand are UNCLEAR.(1) make a false statement of fact or law to a tribunal OR fail to correct a false statement of material fact or law previously made to the tribunal by L . L has obligation to counsel C on ramiﬁcations of false testimony • Factors to point out: a. L MAY withdraw iii. ISSUE: Was DC's response to W's change in testimony qualify as ineffective assistance of counsel b/c prevented W from testifying ii. from entering the trial. should of told W w/o threatening iv. • (1) L must take all reasonable lawful means to attain the objectives C sets out. L may not put words in C's mouth • ETHICAL Appraochs to Take: *L's main goal is to steer clear that will effect what C tells him 10 . Whiteside (US 1986): W killed Love by stabbing.0(f) "KNOWINGLY.doesn't ﬁx problem b.C cannot say he had an impermissible choice btw his right to counsel & his right to testify. has offered material evidence & L comes to know of its falsity. (1) Pre-Offering: L cannot offer evidence it KNOWS is false (including testimony) (2) Post-Offering: If L ﬁnds out material evidence offered is false.the initial interview is where L ﬁnds out the facts as the C presents them. W convicted & appeals i.stated as option in MR 3.. L MAY refuse to offer evidence.even if L just believes C's testimony lacks credibility. C has a right to testify. in order to allow C to tailor version of story to ﬁt with the law i. .denotes  actual knowledge of the fact in question.. OR (2) FAIL to CORRECT material statements it ﬁnds out are false • (3) offer evidence that L knows to be false. KNOWLEDGE under MR 3. L SHALL take reasonable remedial measures including. THUS. order a mistrial or nothing • Application: LIMITATIONs of the Right to Testify Nix v.L's DUTY re EVIDENCE he offers. BUT L is precluded from assisting C in unlawfully presenting false evidence • (2) EXCEPTION to A-C Privilege for disclosure of perjury that C intends to commit or has committed (MR & Model Code) iii. BUT L still has a DUTY to correct/prevent false testimony from being presented . their C w/o initiating or facilitating a lie i. HOLDING: DC's attempts to dissuade were appropriate . if necessary. but does not have a right to commit perjury. EXCEPT C's testimony (right to testify) *3P Witness > if L knows will testify falsely. or a witness called by L. NO withdraw. POLICY: the legal profession has accepted that L's ethical duty to advance the interests of his C is limited by an equally solemn duty to comply w.COPPOCK: DC did the right thing.. the L's C.telling accused laws (what is accepted/not accepted) before asking what happened. though L must do something.. ensuring that C may not use false evidence b. L still has an obligation to remedy it vi. L move to strike/withdraw the evidence d. LAST RESORT: disclosure of conﬁdential into to the tribunal • MR 3... (1) REMONSTRATION = make an effort to dissuade the C from testifying *always do 1st . INITIAL INTERVIEW: Avoidance of Coaching . L has a duty to refuse to call the witness ii. UNETHICAL > WHY.right to testify does not include a right to lie > L can zealously rep.16(b)(2): if L has reasonable belief C intents to testify falsely (criminal action) & cannot be deterred.. DC threatened to withdrawal or disclose to tribunal W was lying if he testiﬁed to such. disclosure to the tribunal. other than the testimony of a D in a criminal matter.3(a)(3) iv. provides basis for facts L presents in court • Coaching = getting C to testify a certain way > unethical approach to interactions w..THUS.3 = • MR 1.. L MUST take reasonable remedial measures to correct the false impression (options explored below) (3) L can prevent ANY evidence. the law & standards of professional conduct. A person's knowledge may be inferred from circumstances (  = constructive knowledge). C has right testify but no right to commit perjury! E. C where L tells C the laws prior to asking C what happened. RULES: • Scope of Right to Testify: the accused's right to testify OR refusal to do so cannot be construed to include the right to commit perjury a. using above options to approach. if C falsely testiﬁes & L is aware. that L reasonably believes is false . (6) REMDIAL MEASURES after false testimony has been offered • Remedial measures: a. (4) REFUSING to CALL THE CRIMINAL DEFENDANT as a WITNESS • CON: would be denying C his constitutional right to testify > creates conﬂict btw the 2 issues (ethical duty & constitutional right) *not really an option v. L persuade C to take the stand & correct his false testimony c. may effect their testimony of what happened.3 Cmt 10: Court's options re false testimony are wide > may make a statement to the trier of fact. • OPTIONS DC can take if C insists on testifying falsely *POLICY.. (1) Illegal to testify falsely (2) false testimony could prove unsuccessful due to vigorous cross-examinaiton or rejection by the jury. but might of been wrong to "threaten"... If a L. TAKE AWAY: L must balance MRs > (1) L may not allow false testimony into trial & (2) L must put C on stand if insists on testifying despite knowing might lie. (3) DISCLOSURE to the TRIBUNAL to prevent false testimony from being offered . (2) WITHDRAWAL from representation > option if allowed to under the rules in the particular situation • MR 1.
while the other was just there • (3) INCONSISTENT defenses... When taking protective action pursuant to para(b). (c) Info relating to the rep. but implying that he is telling the truth about B • TAKE AWAY: it is an issue to take codefendants > a problem will almost always come up C. jury wants to hear the accused say he did not do the crime > only 1 D testifying shines spotlight to the one that does not testify • (5) Does Pr's evidence strike the Ds unequally. the L MAY get help (*COP.6.. (3) conﬁdence in the L & (4) expertise in a certain ﬁeld. FACTORS used in determining the extent of C's diminished capacity (MR 1. is at risk of substantial physical. (b) When L reasonably believes that C has diminished capcity. Diminished Capacity i. so L must attack it on one defendants behalf & support it on the other? i.14(b) trumps 1. Clients w. seeking the appointment of a surrogate decision-maker ii. maintain a normal C-L relationship w. a representation is diminished. L's DUTY if C impairs (1. but only to the extent reasonably necessary to protect C's interests = in seeking help for C b/c of reasonable belief C a substantial harm to self. EX: if C's reasons are (1) doesn't want to go to jail & (2) her husband wants her to join him in heaven > (1) is rationale. a 10-20-life statute would require different sentences EX Defenses: D1 says it was an accident.14(a)). might need to speak with C's family to est.. but (2) is not • (2) Variability of state of mind a. in appropriate cases. D2 is mentally incapacitated • (4) Will one testify & not the other? [YES = CoI b/c calls attention to the failure of the other D to testify] i. = FLUCTUATING state of mind -> is C able to lock into one decision or does it constantly change? • (3) Ability to appreciate consequences of a decision -> is C able to understand the consequences (jail. L MAY take reasonably necessary protective action. but not B > to zealously advocate for both L SHOULD attacking the witness on behalf of A. mental impairment or for some other reason. Co-Defendants Conﬂict of Interest FACTORs. whether b/c of minoirty. as long as believe will not greatly harm C ii. (2) Levels of beating around the bush • "What do you think/believed happened?" • "What do you remember?" • "What is the police report / prosecutor going to say?" > way of asking w/o asking what accused of w/o asking if did it • CONFLICTS of INTEREST A. of a C w.14(b). C . L's DUTY if C incapacitated: L MAY do what thinks is needed to protect C. distinctions in closing arguments or sentencing b/c of either D's blameworthy backgrounds? EX Sentencing: D1 is a felon & D2 has never committed a crime before.14 Cmt 6) • (1) C's ability to articulate reasoning leading to a decision a.1.as far as reasonably possible. ALTERNATIVES to Multiple Representation 11 . L SHALL. if seperate B. as far as reasonably possible. this • Multiple Representations A. ﬁnancial or other harm unless action is taken & cannot adequately act in C's own interest. death penalty. Types of Diminshed Capacity • (1) Impaired Clients: C that suffers from diminished capacity BUT can participate in an Attorney-Client relationship to some degree a.L MAY take reasonably necessary protective action. seeking the appointment of a guardian ad litem.6(a) to reveal info about the C. even if C disagrees • 1. NO multiple rep • (1) Does one D have evidence to offer that incriminates the other codefendant? • (2) Is one D more culpable / blameful than the other? [YES = CoI b/c Pr likely to offer only that one a deal] EX: murdered person together.. -> does an ACTUAL or a SERIOUS POTENTIAL for conﬂict of interest exist? If yes. including consulting w. but one person pulled the trigger. (1) Straight Forward: "what happened?" ii.14: Client w. the known long-term commitments & value of the C a. D2 says it was self-defense / D1 says it was self-defense. L is impliedly authorized under Rule 1. (a) When C's capcity to make adequately considered decisions in connection w.. (2) no privilege btw the 2D.ETHICAL Appraochs to Take: *L's main goal is to steer clear that will effect what C tells him i.6. Diminished Capacity • Model Rule 1. EX: Pr's Witness implicates A. • Cons: (1) grave chances for conﬂict of interest (factors that est..If L REASONABLY BELIEVES C's capcity is risking her substantial harm.may not strong enough) iii. reason why what did was wrong) • (4) Consistency of a decision w. L may reveal info normally protected by 1.DUTY to maintain a normal relationship w. diminsihed capacity is protected by Rule 1. POLICY: Pro vs Con • Pros: (1) desire to present a united front. individuals or entites that have the ability to take action to protect C &. must maintain a normal A-C relationship • (2) Incapacitated Clients: diminished capacity so severe that C is at risk of substantial harm unless action is taken & C "cannot adequately act in his own best interest" a. C to the extent able to considering their diminished capacity = must listen to decisions & follow. (2) the need to share expenses.. individuals or entities (family or physiologist) that have the ability to take action to protect the C &. conservator or guardian . below). including consulting w.6 BUT only to the extent necessary to get C help . in appropriate cases. but only to the extent necessary to protect C's interest • Determining C's COMPETENCY: Impaired vs Incompetant i.
• appointment of separate counsel • one party continue pro se • joint defense agreement = allows separately represented D to coordinate their defenses & to share info without loss of the A-C Privilege i. time & place of arrest. L MAY make a statement that a REASONABLE L would believe is required to protect a C from the substantial undue prejudicial effect of recent publicity NOT initiated by L or L's C. (a) [Blanket Ban on Public Statements by Ls] A L who is participating OR has participated in the investigation or litigation of a matter 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 an adjudicative proceeding in the matter DUTY = L is NOT to talk publicly about a case if (1) L knows / reasonable should know such will be published / disseminated AND (2) (STANDARD) such a statement has a SUBSTANTIAL LIKELIHOOD of MATERIALLY prejudicing the case/proceeding b. it would create the same sort of CoI issues multiple representation does • (3) Conditional Waiver of Conﬁdentiality: must contain limited waiver of conﬁdentiality that lets Ds that chose to testify know that L's subject to JDA can still cross examine them & use any material or info contributed under the JDA a. CON Reg: the public/media have a legitimate interest in obtaining info about the legal proceedings • (2) Litigants a. The Pr in a criminal case SHALL: 12 . AND iv (iv) the ID of investigating & arresting ofﬁcers or agencies & the length of the investigation c. "armed & dangerous"). (c) [DAMAGE CONTROL] In spite of para (a). or DEFENSE involved &. CON Reg: use as a forum for issues they may feel strongly about ii. PRO Reg: reasonable restrictions on publicity to prevent prejudice from being done. • (4) the SCHEDULING or result of any step in litigation.LIMITED: L's response must be limited to info necessary to mitigate the adverse of effects of the bad publicity d. PRO Reg: interest in preventing having their trials prejudiced by publicity b.D has a right and obligation to level the ﬁeld if misleading comments are made . PRO Reg: interest in preventing having their trials prejudiced by publicity (interest. a L subject to paragraph (a) SHALL make a statement prohibited by paragraph (a) • re Prosecution ONLY Model Rule 3.8: Special Responsibilities of a Prosecutor a.e. ii (ii) if the accused has not been apprehended. anonymous tips) • (6) a WARNING of DANGER concerning the behavior of a person involved. occupation & family status of the accused. Explicit Requirements: • (1) Signed Written Agreement: JDAs must be committed to WRITING. residence.e. • (3) that an INVESTIGATION of a matter is in PROGRESS. (I. AND CONSITUTIONAL RIGHT) b. in addition to subparagraphs (1)-(6): i (i) the ID. A statement made pursuant to this paragraph SHALL be limited to such info as is necessary to mitigate the recent adverse publicity Right to Reply = gives L ability to reply bad publicity INITIATED BY OTHERS (big qualiﬁer > cannot be L or L's C) . EXCPET when prohibited by law. the ID of the PERSONs involved • (2) info contained in a PUBLIC RECORD. PRO: similar advantages of a multiple representation w/o the conﬂict of interest issue (1) expertise of both attorneys. further fair functioning of the legal proceedings b. OFFENSE. (b) [EXCEPTIONs to (a)] In spite of paragraph (a). POLICY: interests on both sides re the extent of regulation of trial publicity • (1) Public a. POLICY: (1) Places loss of the JDA beneﬁts on the D who chooses to testify (D losing little > likely testifying under grant of immunity OR is waiving right against self-incrimination) (2) Provides both Ds NOTICE that their conﬁdences may be used in cross > each can choose what to reveal & not • (4) Withdrawal: Must allow withdrawal upon notice to the other Ds • LIMITATIONs on LITIGATION Tactics by the Pr & by the D A. when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest (i. iii (iii) the fact.6: Trial Publicity a. crime stoppers. (ex: trial date) • (5) a REQUEST for ASSISTANCE in obtaining evidence & info necessary thereto. a L MAY state: [1-6 = civil & criminal cases / 7 = additional info may release re criminal cases] • (1) the CLAIM.. POLICY: if L owed a duty of loyalty to D via a JDA. AND • (7) in a CRIMINAL case. (d) [L's Obligations IMPUTED to Firm] No L associated in a ﬁrm or gov agency w. RULES • re Defense & Prosecution Model Rule 3. info necessary to aid in apprehension of that person. (2) can share costs of discovery ii. Limitations on SPEECH • (1) Trial Publicity i. signed by Ds & their Ls & submitted in camera to the court for review PRIOR to going into effect • (2) No Duty of Loyalty: must state it does NOT create an Attorney-Client relationship btw an A & any D other than his C a. CON Reg: use publicity as a forum to sway/change existing public info or perceptions they feel is inaccurate • (3) Ofﬁcial Participants in legal proceeding a..
Improper Methods of Jury Selection • (1) INVESTIGATION of Potential Jurors > L may investigate the backgrounds of jurors for the purpose of jury selection... reckless disregard as to its truth or falsity concerning the qualiﬁcations or integrity of a judge. the applicable provisions of the Code of Judicial Conduct B. COURT RULES. coercion. OR . OR iv (d) engage in conduct intended to disrupt a tribunal ii. EXCEPT RACE or GENDER 13 . Ees or other persons assisting or associated w. some limitations . JUROR. Methods to Preventing Prejudicial Pretrial Publicity: Court Rules & Gag Orders • some courts have taken the following steps a.POLICY (Cmt 1): as such. jurors or prospective jurors. Ls.. a juror once they have been sworn in. Pr have a heightened responsibility as a L > must advocate.L can get rid of potential juror for ANY reason. ii (b) [NO Communication DURING Trial] communicate ex parte w. GAG ORDERs.MRs provide a little guidance (1) During Trial: NO Communication AT ALL is allowed (2) Post-Trial: Communication OK w. adjudicatory ofﬁcer or public legal ofﬁcier.why allow? (1) Ls can improve their trial skills. such a person during the proceeding UNLESS authorized to do so by law or court order. MAJORITY VIEW > Liberal.ANY form of communication w.. law enforcement personnel..WHY do some states allow.. (a) no communication w. REFRAIN from making extrajudicial comments that have a SUBSTANTIAL LIKELIHOOD of HEIGHTENING public condemnation of the accused & exercise reasonable care to prevent investigators..Court Rules & Gag Orders are CONSTITUTIONAL • (2) Judge Criticism: i.2: Judicial & Legal Ofﬁcials • (a) [L CAN Criticize a Judge.allows Ls to learn how they did in trial & become better Ls • the juror has made known to the L a desire not to communicate. the juror AND (b) the investigation does not violate other law a.judge's order directing parties.includes both communications relating to the case and pleasantries iii (c) [Re Communication POST-Trial] communicate w. BUT also must ensure the DEFENSE is afforded procedural justice & that guilty is decided upon the basis of sufﬁcient evidence (not public prejudice) iii. PROSPECTIVE JUROR or other ofﬁciel by means prohibited by law.. BUT cannot say anything FALSE] A L SHALL NOT make a statement that the L knows to be false or w. duress or harassment.standing court rules prohibiting trial publicity b.• (f) [Pr Speciﬁc Rule re Pre-Trial Publicity] EXCEPT for statements that are necessary to inform the public of the nature & extent of the Pr's action & that serve a legitimate law enforcement purpose..... Model Rule 8. MINORITY VIEW > Stringent Prior Restraint on Speech Doctrine -> heavy presumption AGAINST constitutionality • Limitations on speech must be no broader than necessary to protect the integrity of the judicial system & the D's right to a fair trial • Encourages courts to look at OTHER OPTIONS b.6 or this Rules i = Pr acts as a minister of justice & NOT just an advocate > obligations towards defense . EXCEPT in the course of ofﬁcial proceedings or UNLESS SPECIFICALLY authorized by law. some limitations • Rule: a.. (a) + (b) = L should NEVER interact w. a juror or prospective juror after discharge or the jury if: = Post-Discharge Communication OK w.5: Impartiality & Decorum of the Tribunal • A L SHALL NOT: i (a) [re Inﬂuence] seek to inﬂuence a judge. is improper . including niceties (hello. OR (2) to determine if the jury acted improperly in reaching its decision • the communication is prohibited by law or court order. Limitations on TRIAL TACTICS • (1) JURIES: i. Model Rule 3.. but each L gets an unlimited number per issue ii Preemptory Challenges. OR • the communication involves misrepresentation. the Pr in a criminal case from making an extrajudicial statement that the Pr would be prohibited from making under MR 3. or of a candidate for election or appointment to judicial or legal ofﬁce • (b) A L who is a candidate for judicial ofﬁce SHALL comply w.. IF THERE IS..L must state a cause why the potential juror should not be selected • HIGHER Standard... Batson Rule = Prohibition on the Discriminatory Use of Peremptory Challenges based solely on GENDER or RACE (*FL = Neil Challenge) • 2 Types of Juror Challenges (= Ls ability to prevent a potential juror from being selected) *BURDEN = on the L that does not want the potential juror i Cause Challenges. witnesses or journalists to refrain from publicly discussing the facts of a case • 2 Views re the Constitutionality of both: a. hold door) . HUGE industry > some consider it one of the most important aspects of the case & most important to spend money on • (2) DISCRIMINATION against Potential Jurors a. Improper Jury Contact.POLICY.
.may not do either of the above • Improper Inferences of the FACTS US v.. but MUST disclose prior to the time it is necessary for the judge to make a decision . MR 3. where each side has an obligaiton to investigate & present its case b. AND .3(b): A L who represents a C in an adjudicative proceeding & who knows that a person intends to engage....directly adverse = unclear.may (1) cross-examine a witness the L knows is telling the truth & (2) argue for inferences that the L knows are false but that are reasonably supported by the evidence b. various discovery rules requiring production of info in response to inquiries from the opposing side b.. THUS if the law that is controlling is not favorable to L's C. OR = L MUST disclose adverse law if meets 3 Qualiﬁers: (1) from the controlling jurisdiction. when the L. the SUPREME COURT superseding both (2) directly adverse to L's position.. BUT a person has a constitutional right NOT to be stricken from a jury for race or gender..3(b)) • Model Rule 3..• LOWER Standard > L only gets 3. Latimer: bank robbery > DC argued pics from camera not shown b/c C not on them. GENERAL RULES: (sparse but case law supports) • Defense Counsel vs Prosecutor. Re Adverse LAW: LIMTED Duty to disclose adverse law I. even if material & unknown by the court or opposing counsel. but any is acceptable as long as it is gender or race neutral • TAKE AWAY: No one has a constitutional right to be on a jury. including..same district or circuit. = state law.. but candid to the tribunal is more than not lying..same state / federal law. EVEN if DC is personally aware such is untrue.different levels of standards a.6 = Duty to Disclose Adverse Law lasts until the CONCLUSION of the PROCEEDING • (3) DUTIES re IMPROPER ARGUMENT i. w. (2) the ability of clients to communicate adverse information in conﬁdence to their lawyers c. iii.any case that cannot be distinguished [FLAW: a good L can always distinguish a case] broad. if L knows that any person has or plans to engage in criminal or fraudulent conduct related to the proceeding e.. a.. (1) an adversarial system of justice. W. MR 3.if (a) the decision is one which the court should clearly consider in deciding the case.... Jury Misconduct: L has DUTY to DISCLOSE juror misconduct to tribunals (MR 3. & apply even if compliance requires disclosure of info otherwise protected by Rule 1.ADVERSE FACTS & ADVERSE LAW i. MR 3. MR 3. MR 8. Re Adverse FACTS: GEN Rule: DC has NO duty to disclose adverse FACTS. DC may argue ANY reasonable inference from the facts.POLICY: L can still take the opposing position.3 (a)(3): L is obligated to take reasonable remedial measures.. L must disclose ALL MATERIAL FACTS (WHY.2(d): L have a duty NOT to engage personally or assist a C in FRAUDULENT or CRIMINAL CONDUCT c.3(b) & Comment 12: L is obligated to take reasonable remedial measures. then such is the case .. (b) if the judge might consider himself misled by the L's silence OR (c) if a reasonable judge would consider an L who advanced a proposition contrary to the undisclosed opinion lacking in candor & fairness to him (3) not already disclosed by opposing counsel . though know really b/c cam broken i ISSUE: is Pr telling jury in closing argument cams not working unethical b/c not in evidence? ii HOLDING: YES > (1) Pr may ONLY argue facts that are in evidence. but there are 2 views (strict vs broad) strict. DC.8(d): Pr have a duty to disclose to DC EXCULPATORY MATERIAL ii. but about being upfront & honest.3(d): In EX PARTE proceedings. (2) In contrast. Model Rule 3. including disclosure to the tribunal if necessary.4(b) & 1.4(d): L & Cs have an obligation to comply w.. 14 . (3) a D's privilege against self-incrimination & other constitutional rights • EXCEPTIONS: rules the re disclosing facts w/o imposing an absolute duty a.can work in L's favor > other side must present law adverse to them that L may be unaware of • (c) [Length of Duty to Disclose] the duties states in para(a) & (b) continue to the conclusion of the proceeding. if necessary disclosure to the tribunal • (2) DUTY TO DISCLOSE. thus he violated the rules. but also not telling the whole truth] • (a) a L SHALL not knowingly: i (2) [DUTY to Disclose Adverse Law] fail to disclose to the tribunal legal authority in the controlling jurisdiction known to L to be directly adverse to the position of C & not disclosed by opposing counsel. Pr. including disclosure to the tribunal if necessary...must still give a reason.adversarial process not involved) f. L's C or a witness called by the L offered FALSE TESTIMONY & L comes to know of its falsity d. EXCEPTIONS • POLICY: Requiring a duty to disclose runs directly in opposistion to. is engaging or has engaged in criminal or fraudulent conduct related to the proceeding SHALL take reasonable remedial measures.3: Candor Toward the Tribunal [candor diff from honest > includes lying.WHEN to MENTION: do not have to mention right away > can give Pr a change to bring up. MR 3.
improper separation of powers > Legislature decides the punishment that ﬁts the crime • (iv) *IMPROPER MOTIVES: possible improper motives of a complainant (aka spite) .. vs DC.. Pr's AIM: twofold. Improper Inferences of the LAW • GENERAL RULE: looking at the policy objective of the law.. in connection w. must tell D ii Exculpatory Evidence iii APPLIES to all evidence in GOV's POSSESSION (including police. ORIGINAL: suppression by the Pr of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. complainant's spiteful motives or not should not matter 15 . DC. it is unethical to argue an inference of the law that would beat its objective .if factor in. they cannot argue personal knowledge & must be careful to balance arguing inferences they are aware are not true though supported by the facts & the duty to be candid. AND • SCOPE: i Impeachment Evidence of Gov Witnesses > Pr must tell D anything that CASTS DOUBT on Pr's witness' testimony • EX: Witness positively ID the D. then no reason to bring charge b/c no case to present b.Pr instead are obligated to zealously seeking JUSTICE.Brady Rule/Motion a.Pr has not suppressed the evidence OR it has not been requested (via a Brady Motion). disclose to the D & to the tribunal all UNPRIVILEGED mitigting info KNOWN to the Pr. b. (2) Charging: Requirement of PROBABLE CAUSE • Model Rule 3.. the Pr (which = the D waiving the right) • On APPEAL.. in hopes of encouraging Victims to come forward w/o fear of embarassment • IMPROPER: it is unethical for DC to try to introduce evidence obviously precluded by the rape shield law under another route C.8: Special Responsibilities of a Prosecutor • The Pr in a criminal case SHALL: i (d) [DUTY to DISCLOSE EXCULPATORY EVIDENCE] make timely disclosure to the defense of all evidence or info known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.iii COPPOCK: Pr..3) if arguing inference KNEW is false ... EX: Evidentiary Rape Rule..goes back to #1.not sure correct > DC not truly being candid (MR 3.) > Pr has duty to learn of ANY favorable evidence known to others acting on the gov's behalf in the case c.MR's Ethical Duty to Disclose a..Coppock > WRONG.argument was correctly overturned > incorrect to argue facts not in evidence in closing. (a) Pr in a criminal case SHALL refrain from prosecuting a charge that the Pr knows is NOT supported by PROBABLE CAUSE • POLICY: if no probable cause. CURRENT: the duty has expanded in: • timing > applies EVEN IF.Coppock > WRONG. sentencing.DC is obligated to rep their Cs zealously w/in the bounds of law . = AFFIRMATIVE DUTY to disclose evidence that TENDS to NEGATE D's GUILTY or MITIGATES the offense *no requirement for D to ask for the evidence > if Pr knows of the evidence. **EXCEPT when the Pr is relieved of this responsibility by a protective order of the tribunal. irrespective of the good faith or bad faith of the prosecution b. but a minister of justice & seeks to do justice ﬁrst i. but in civil case would never dream of presenting an argument knew was false iv TAKE AWAY: Attorneys CANNOT argue facts that are not in evidence. ii. but confused the name > possibly undermines the witness' credibility.Pr doesn't get to decide this.it is improper to try to ﬁnd a loophole in the law that essentially undermines the entire purpose of the law a.. POLICY.Prs should take into account in making the decision whether to charge: • (i) the Pr's REASONABLE DOUBT that the accused is in fact guilty . Limitations on PROSECUTORs: Special Duties • POLICY: Pr has an overriding ethical guideline to do justice > Pr is not an advocate... &. not their Cs • ARES of CONFLICT: i.criminal cases dif.the legislature has spoken on the issue & passed the law for a reason > that reason should be honored b.doesn't matter what Pr thinks. etc. Pr has evidence that the alibi is false > Pr does not have to disclose that evidence if the D enters a plea bargain w..applies to all evidence in the gov's hands) • the "tends to" negate standard of the rule appears to require greater disclosure than the constitutional standard • (b) Constitutional Duty .BIG. EXCEPTIONs: • Afﬁrmative Defenses: Evidence re D's afﬁrmative defenses if the D has waived these rights pursuant to a plea agreement i EX: D has an alibi for a crime. the Legislature (aka "the people") do ...doesn't allow D to put into evidence a Victim's past sexual history. that enacts the duty to hand over • SCOPE: only evidence or information KNOWN to the PROSECUTOR • EXCEPTION: when the Pr is relieved of this reponsibility > EX: victim that must be in secrecy • PRESUMPTION: a prudent prosecutor will resolve doubtful questions in favor of disclosure c.guilt shall not escape nor innocence suffer ii. 7 FACTORS.. but if Pr has doubt should NOT bring the charge • (ii) the EXTENT of the SOCIAL HARM caused by the offense • (ii) *PUNISHMENT: the disproportion of the authorized punishment in relation to the particular offense of the offender . a conviction will be set aside only if the evidence is MATERIAL i TEST: material evidence = when there is a reasonable probability that the outcome would have been different had the evidence been disclosed • Grad jury proceedings ii. (1) Disclosure of Exculpatory Evidence DUTY: Pr have a constitutional & professional obligation to disclose "exculpatory" material • (a) Professional Obligation . vs Constitutional: • the ethical duty applies only to evidence or info known to the Pr (Constitutional. if Pr believes that D did it...8: Special Responsibilities of a Prosecutor a... Model Rule 3....
.2: Communication w. • (2) [OPPORTUNITY Costs] the likelihodd. (4) Courtroom MISCONDUCT by Pr • Berger Rule: in closing arguments either attorney.. hourly. as can no longer be represented by Er's counsel (conﬂict of interest) • WHY. settle)] • (5) the TIME LIMITATIONS imposed by the C or by the circumstances. [= Size of case / Results (appeal. [= quickness (SoL?) & turn around or if C is a time suckers] • (6) the NATURE & LENGTH of the professional relationship w. may not trump up charges to black mail • (vii) availability & likelihood of prosecution by another jurisdiction .experience & reputation everything > (1) huge > built upon a person's skill & ethics. the C . a. AND . using it to allow subornation of perjury would effectively defeat this goal & add no meaningful protection to the A-C relationship iv..if accused willing to ﬂip/nark.• (v) *RELUCTANCE of Victim to testify . REPUTATION & ABILITY of the L or Ls performing the services.APPLIES to Pr same as regular Lawyers • EXCEPTION: a. goes far in making a person successful (2) game changer > who is on the on the other side can change how Ls will carry out cases • (8) whether the fee is ﬁxed or contingent ii. (3) Pr's Whistle-Blower Exception: MR 4.how far taking case (negotiations / trial / appeal) one vs multiple issues > if there are 16 aspects (criminal & civil. Cannot attack/imdenify opposing counsel III. Any changes in the basis or rate of the fee or expenses SHALL also be communicated to C = Obligation on L to reach CLEAR AGREEMENT w.Ee MUST appraoch Pr > Pr cannot approach Ee about speaking .more expensive reﬂects value of service > important NOT to undervalue . if LATER modiﬁcations are made. split amongst the next few categories • (1) Duty to Charge Reasonable Fees & Amount for expenses i. Ethical Obligations re FEEs *Applicable Model Rule.. trial.5(b): the scope of the rep & the basis or rate of the fee & expenses for which C will be responsible SHALL BE communicated to C..factor could be especially daming in domestic violence cases or whistle blowing cases • (vi) COOPERATION of D: cooperation of the accused in the apprehension or conviction of others. court rule or contract • (2) Duty to Inform the CLIENT of the Basis OR Rate of the Fee & Expenses i.Pr should advise Ee to seek independent counsel. such MUST be discussed w. 1. before or w/in a reasonable time after communcing the rep. the state coming after you with all its power" c.. (1) SCOPE. The Civil Advocate: Ethical Issues in Civil Litigation • The Client-Lawyer Relationship A. Courts regulate the reasonableness of L's fees in 3 ways: • (1) Courts can discipline Ls for charging excessive fees • (2) Courts have the power to reduce the amount of fees charged by Ls if the court ﬁnds the fee to be unreasonable • (3) Court est. (2) Authorize by LAW or Court ORder • Thornburgh Memo.. to investigate federal crimes preempted state ethics rules *SINCE overruled by the McDADE ACT. OTHERWISE the Pr cannot speak to the Ees of a D .. charge.subjecting US Attorneys to the full authority of state courts c. if Pr satisﬁed D did it. C at very beginning of relationship regarding. a Er D's Ee WHO APPROACHED the Pr to speak to them if going to testify against Er.protects whistle-blowers > encourages those that know of wrongdoing to come forward i purpose of no contact rule is to protect the administration of justice via the A-C privilege. BUT as long as Pr is convinced D did it then should prosecute iii. A L SHALL NOT communicate about the subject of the representation w. the NOVELTY & DIFFICULTY of the questions involved.5(a): L SHALL NOT make an agreement for. Cannot break the golden rule > "how would you feel if you were in the D's chair w. etc) .. if apparent to the C. death penalty • OVERALL: V can be afraid... or collect an unreasonable fee or an unreasonable amount for expenses..how will the fee be charged & how will expenses be paid (upfront. C [*Coppock: troubled. etc).also. people who are represented by counsel are authorized by law so long as the contact does not violate the person's constitutional rights ! Case-by-case approach > examine the facts of the case to determine whether the Pr engaged in legitimate investigative techniques ii [NO MORE] the authority of the Justice Dept. reasonable fee > used when the fee will be paid by the D pursuant to statute.3 does not ban contact w.5: Fees. Model Rule 1..ASKs: does another jurisdiction have a CHARGE that better ﬁts the crime? EX: DC Snipers > use state w.. complainant can be angry. later. preferably in writing. & the SKILL requisite to perform the legal service properly. V's reluctance to testify should not matter . that the acceptance of the particular employment will preclude other employment by L • (3) the fee CUSTOMARILY charged in the locality for similar legal services. (1) Consent of Other L b.. In representing a C. AND . [1-8 are FACTORs to determine REASONABLENESS of a fee]: • (1) the TIME & LABOR required.Coppock > WRONG.hard to tell judge why charge friend less] • (7) the EXPERIENCE.. contingency. L may chose to only take ONE aspect mult (2) Basis or Rate of the Fee. (3) Contact w. • (4) the AMOUNT involved & the results obtained. Person Represented by Counsel a.exempting Justice Department Lawyers from the No-Contact Rule on 2 grounds: i investigative activities of federal prosecutors where "authorized by law" within the meaning of the rule • 2 Approaches: ! Pre-indictment investigative contacts w.. a person the L knows to be represented by another L in the matter.goes back to #1. Persons REPRESENTED by COUNSEL • Model Rule 4.. Cannot offer their opinion or personal knowledge OR testify b. EXCEPT when L will charge a regularly represented C on the same basis or rate. Model Rule 1.. UNLESS the L has the consent of the other L OR is AUTHORIZED to do so BY LAW or a court order .
(d): • (c) [CF AGREEMENT Requirements] a fee may be contingent on the outcome of the matter for which the service is rendered.) • (2) a L representing an indigent C may pay court costs & expenses of litigation on behalf of the C b. (1) SCOPE. etc). & . EXCEPT that: • (1) L MAY advance court costs & expenses of litigation. ink) • INCLUDED: copies.. Don't USE. (4) [state] whether such expenses are to be DEDUCTED BEFORE of AFTER the CF is calculated. usually varying depending on the stage at which the matter is concluded a..the same basis or rate..L MAY advance C expenses.. (d) BUT ONLY allow expenses.would be persuaded to not plea bargain or take guilty C c. CYA ii.. with limits a. periodic payments • OK for L's CF to come out of the any lump-sum fee IF SUCH IS AGREED *absence of agreement means L's CF will be paid PRO RATA out of each payment received by C • (4) Expenses i. the repayment of which MAY be contingent on the outcome of the matter.very disfavored > law suits were discouraged & believed advancing encouraged frivolous law suits • modern law: (a) believe L should be able to decide whether to take the risk. the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support.C receives a lump-sum payment coupled w... MR 1. Other Areas CFs are PROHIBITED: • Expert Witness • Defense Contingent Fee in Civil: % based on = P's demanded amount in (-MINUS-) amount the D was required to pay i POLICY: disfavored as against public policy > not per se illegal. (3) [ID whether] litigation & other expenses to be deducted from the recovery.. CF NOT ok to charge when. either by settlement or judgment . or collect: a. etc). (5) clearly notify the C of any expenses for which C will be LIABLE whether or not the C is the PREVAILING PARTY. OR = NO CFs in Divorce proceedings > POLICY: public policy favors marriage.. lawyer (= fee) ii.. Expenses = things charged in the production of a law suit (copies... including the %(s) that SHALL accrue to L in the event of settlement. POLICY: allows access to people who could not afford a L > justiﬁed that L deserves a higher % b/c took a risk he would not recover b. SCOPE: civil only w...a single rate that applies to both L & paralegals a. P's L asks for a demand much higher than expected... % recovered would be MUCH MORE than a REASONABLE AMOUNT. taking into account a variety of factors a.attractive to C b/c of hourly rate less & attrative to L b/c allows L to have work done by Ee who cost the least • (3) CONTINGENCY FEEs: Special Ethical Duties Re i. paper.how will the fee be charged & how will expenses be paid (upfront. nurses in med-mal) • EXCLUDED: overhead (rent. or property settlement in lieu thereof.. L SHALL provide the C w. etc. charge. NOT fees > too many sob stories. need a buffer iii. pending or contemplated litigation. the amount "saved" is not a realistic rep of a reasonable amount to recover ii.Maintains L Protection: no requirement to advance $... such MUST be discussed w. bar on fees & general advances (living expenses for C. (1) any fee in a DOMESTIC RELATIONS matter. dispute the L's fee > if do it at the end. (6) Upon CONCLUSION of a CF matter. woul be wrong to take 1/3 ii Settlement SO BIG. showing how C's remittance to the C & other fees are CALCULATED • (d) [EXCEPTIONs: when CFs not allowed] L SHALL NOT enter into an arrangement for. not in society's best interest to discourage reconciliation b. hourly.L determines the fee at the conclusion of the matter (vs usually in advance). Any changes in the basis or rate of the fee or expenses SHALL also be communicated to C = Obligation on L to reach CLEAR AGREEMENT w. policy.... re L's OBLIGATION to 3P over CLIENTS 17 . ink. if there is a recovery. EXCEPT in a matter in which a CF is prohibited by paragraph (D) or other law.. but disfavored • WHY: the 2 #s (amount demanded & recovered) bears no logical relationship to each other.*Courts PREFER all to be put in WRITING.Based on % of amount recovered.how far taking case (negotiations / trial / appeal) one vs multiple issues > if there are mult aspects (criminal & civil. lighting...ﬂat fees based on the service provided OR based on a % of the transaction value ... General Rule: (a) C is responsible for the expenses (in addition to fees) of the litigation (including those order on C's behalf by L) & (b) L SHALL NOT provide ﬁnancial assistance • EXCEPTION: Advancement of Expenses. & (b) outlook on law suits changed > C can be advanced $ in hopes that those that were wronged will rightfully recover (c) expenses & recovery often very high > most Cs couldn't bring case w/o an advancement.. even if agreed to in the beginning.computed by multiplying the # of hrs worked on the matter by each L or paralegal times the respective hourly rate • (2) Contingent Fees. the C . later. trial or appeal.also. In negotiating. L may chose to only take ONE aspect (2) Basis or Rate of the Fee. but such is not required > GOOD IDEA. Thus. re Structured Settlements. ex: tabbaco settlement • (3) Fixed fees (ordering of a menu).common law. if LATER modiﬁcations are made.. i Suit is a SURE THING: ex: Settlment $100K & L only had to write a letter ot get it. C at very beginning of relationship regarding.Causes BIG ISSUE > determining fee after the trial is concluded might bias both L & C as to what each SHOULD get • C's often. (1) be in a WRITING signed by C (2) state the method by which the fee is to be determined. paper. A CF agreement SHALL. staff. contingency. Methods of Charging Fees: • (1) Hourly Basis.. will have even more disputes • (5) Blended Rate. limitations • Limits: morally. PRO..L's right to receive compensation is contingent on the C's receiving an award.e.. specialists that review cases (i.USED Most: estate planning & real estate matters • (4) Value-Billing. etc) . (2) a CF for representing a D in a CRIMINAL case POLICY: adverse interest.5(c) .. Model Rules 1.8(e): A L SHALL NOT provide ﬁnancial assistance to a C in connection w. a WRITTEN [settlement] STATEMENT stating the outcome of the matter &..
Cs: • MR 1. SHALL promptly render a full accounting regarding such property • (e) [IF INTEREST is DISPUTED] When in the course of rep. . L must hold the funds until the dispute is resolved a. the alternative being a minimum (instead the all or nothing of a reg CF) • (5) Fee Splitting i.JR = each as ﬁnancial & ethical responsibility as the next for the rep.. re Witness Fees • GENERAL RULE: Ls may not pay witnesses fees that are prohibited by law MR 3.8(i): PROHIBITION on L having a proprietary interest in the outcome of the case he is conducting for C EXCEPT for: • (1) a lien authorized by law to secure the L's fee or expenses.. upon request by C or 3P. w. AND a. 2 Types of Witnesses & fee legality: • Fact Witnesses. (2) [Advise of INDEPENDENT COUNSEL in WRITING] L MUST advise the C in writing of the desirability of seeking independent legal advice about the transaction AND the C MUST have a reasonable opportunity to seek such advice c.. can split fees & know nothing more of it > NOT allowing excpetions discriminates against small ﬁrms • Cons: Referral fees encourage unethical practices of solicitation of business (i..8(a): L SHALL NOT enter into a business transaction w.4(b): A L shall NOT. the property SHALL be kept separate by L until the dispute is resolved. possessory.5): the heightened ethical obligation requires greater regulation .5: Fees • (e) Division of a fee btw Ls who are NOT in the same ﬁrm may be made ONLY IF (must have all 3): a.ALLOWED under strict regulations *EX: Security Ks ( & Post-engagment Fee Modiﬁcations i. w. POLICY: heightened ethical obligation b/c of the risks it puts the C in & the L's DUTIES towards the C. L & might be vulnerable to coercion or dependent iii..15(d)-(e): • (d) [OBLIGATION to pay 3P's RIGHTFUL INTEREST] Upon receiving funds or other property in which a C or 3P has an interest. but may be paid expenses & any lost wages b/c of time spent in testifying • Expert Witnesses. (1) [Terms FAIR & REASONABLE] The terms of the transaction MUST be fair & reasonable to the C & must be fully disclosed in a writing that can be reasonably understood by the C b. (3) the total fee is REASONABLE iii. RULE.though. Model Rule 1. L shall promptly notify C or 3P. including the share each L will receive.e. . 2 Types of LIENS recognized: • Retaining Lien: L's right to retain C papers or other C property in the L's possession as security for any unpaid amount owed • Charging Lien: applied against the proceeds of any settlement or judgement for any unpaid fees or expenses due the L b.if 3P interest is DISPUTED..if in big ﬁrm. (2) C AGREES to the arrangement. Presumption of Invalidity: transactions btw A-C is presumptively INVALID.C already under a ﬁduciary relationship w. C. EXCEPT as stated in this rule or otherwise permitted by law or by agreement w.• DUTY: L must promptly deliver to 3P ANY funds of other property they are entitled to receive .EX: security K. Ambulance Chasers. encourage FINDING cases) .. L is in possession of property in which 2 or more persons (one of whom MAY be L) claim interests..cannot be paid a fee for testifying. Security Agreements: K w. (3) [WRITTEN CONSENT] C must give informed consent in writing signed by the C to the essential terms of the transaction including an explanation of whether the L is representing the C in the transaction ii. BUT may not be paid a fee contingent on their testimony or on the outcome of the case .. L shall promptly deliver to C or 3P any funds or other property that the C or 3P is entitled to receive &. MR 1.3 Requirements of Ls who enter into business transactions w. the burden of est transaction's validity on the LAWYER • Resolved AGAINST the L > transaction is INVALID if it runs afoul of ethical rules (duty to make sure C aware of risks) • (7) Liens i.. = (btw Ls) occurs when Ls who are not members of a ﬁrm divide a fee in a matter • EX: referral fee (standard 25% of L's fee) association of attorneys in a case to handle diff aspects of the matter completion of a case by a 2nd L after the ﬁrst L withdrew from representation or after the C discharged the L continuation of compensation to a retired member by the L's former ﬁrm ii.applicable law recognizes that precludes L from surrending funds to the C IF there are VALID CONTRACTUAL ASSIGNMENTS or STATUTORY LIENS of which the L has received notice • EX: Medicare has lien on any med-mal negligence cases to recover $ it paid for prior to the case settling iv..may be paid REASONABLE fees for testifying. L shall promptly distribute all portions or the property as to which the interests are not in dispute • POLICY: other parties than C may have an interest in the $ out of the settlement. POLICY: • PROs: (1) Avoids competency issues > encouages Ls from taking cases knowing nothing about & sending them to someone that does (2) Arbitrary discrimination against sole practitioners & small ﬁrms (Rule only applies to members NOT of a ﬁrm). Model Rule 1. . & the agreement is conﬁrmed in writing.vs Ordinary Fees (subject to MR 1..some argue Cs end up paying excess fees (b/c pay referral fee too) > WRONG. security or other pecuniary interest ADVERSE to a C UNLESS: a. as if the Ls were associated in a partnership b.. AND c. (1) [a] the division is in PROPORTION to the services performed by each L OR [b] (MAJ) each L assumes JOINT RESPONSIBILITY for the rep..referral fees come out of the L's portion • (6) Security for Nonpayment of Fees .. it may be a % of the recovery. . C in which they obtain a security interest or mortgage in the C's property to secure payment of their fees • (2) [CONTINGENT FEEs] for reasonable contingent fees in civil cases 18 .L obtaining an interest in C's property as security for a fee is directly adverse to C's interest post-engagement fee modiﬁcation.offer an inducement to a witness that is prohibited by law a. a C OR knowingly acquire an ownership.
includes.broad authority to make STRATEGIC & TACTICAL decisions in connection w. i Contractual > C&L are free to allocate the authority to make strategic & tactical decisions by K ii Unethical / Illegal > C directs the L to act unethical or illegally iii Immediacy > where tactical decisions require immediate action. unless.for which C will be responsible SHALL BE communicated to C.B. L's only options are: i (1) Cousel..e.2(d) Crime/Fraud: L may be not counsel/assist Cs to engage in conduct that hte L knows to be criminal/fradulent • MR 1..Expert witness needed (*costs discussed w. C or former C unless that person is advised in writing of the desirability of seeking & is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. reasonable requests for info (aka return calls) ii (b) Duty to COUNSEL: L shall explain a matter to the extent reasonably necessary to permit the C to make informed decisions • MR 2.4: L shall consult w. Engagement Agreements • (1) Non-Engagement Letters = letter rejecting a case > after meeting w..L can move to withdraw from the matter if C's instructions make it unreasonably difﬁcult for L to carry out the representation • LAWYER"s ability to BIND CLIENT to 3P a..L may counsel C about the wisdom of the C's decision (MR 2.Afﬁrmative Presumption > if C believed one existed or detrimentally relied believing it existed. must be CLEAR if not accepting case & alert to any SoL otherwise might be subject to legal malpractice i. RULE: L must set a CLEAR & AGREED upon scope of representation w.. L has a duty to COUNSEL C regarding the matters. before or w/ in a reasonable time after communcing the rep. L can advance the expense (1..courts are likely to interpret any ambiguities against the L • Model Rule 1. whether to object at trial. • L may LIMIT the Scope if. LAWYER vs CLIENT Authoirty • Generally > COOPERATIVE Relationship. C prospectively limiting L's liability for malpractice.if re litigation expense C is unwilling to incur. the C is impractical. where consultation w.. then court will likely ﬁnd one did • (2) D acted negligently or in breach of contract a.8(h): L SHALL NOT.underlying case lost b/c of L's negligence (otherwise L's negligence doesn't matter) • (1) DUTY Existed: an A-C relationship existed . UNLESS C is independently rep in making it [= C cannot agree to forgo his right to sue L for negligence UNLESS he has sought independent rep] (2) settle a claim or potential claim for such liability w. economic social & policital) b.P MUST show. an unrep. Evidence: EXPERT testimony re proof of change outcome of the "case w/in a case" • (2) SCOPE of Representation: i. inform C of SoL. EXPRESS. UNLESS the L requires the decision to be made personally by the C • 1.. the rep to advance their C's interests .1: In consulting w..... but L decides how many should be retained) Discovery that should be done Witnesses (besides C) that will be called ot testify Causes of Action included in the complaint Whether & what counsel should object to in a trial • LIMITATIONS: L is bound to follow C's instructions re strategic & tactical decisions.. returned call or sent letter (most use standard letter) • (3) Such acts were the proximate cause of the P's damages > did such acts cause the P to lose the underlying case? • (4) BUT for D's conduct the Ps would have been successful in the prosecution/defense of their previous claim a... C. (1) make an agreement w...L acted w.. potential C. ii Limited Engagement Agreements (i...1) ii (2) Advance Expenses.(1) reasonable & (2) C gives informed consent a.. MR 1. C • MR 1.C sets the overall objectives of rep & L chooses the means for achieving those goals a. refer to a specialized attorney..e. Evidence: EXPERT testimony re the standard handling a typical L would use of such a legal situation • EX: did L research the case. the C at the beginning of the relationship . C..NOT reasonable if it were not sufﬁcient to allow the L to provide advice on which the C could rely • (3) Allocation of AUTHORITY between L & C i.2(c):L MAY limit scope of the rep.sets the overall OBJECTIVE of the representation (civil & criminal) gets to decide if accept settlement/plea or appeal > L must discuss ANYTHING offered w. Elements of a Legal Malpractice Cause of Action: . CLIENT.must be clear.5(b): the SCOPE of the rep. LAWYER. preferably in writing.2(a): L SHALL abide by C's decisions concerning the objectives of represetnation i EXCEPTIONS: • Authorization: C may authorize L to make decisions that the C is entitled to make.. and may not only refer to law but ot other considerations as well (ie moral. C as to the means by which C's objectives are pursued.. Ls): (3) keep the C reasonably informed about the status of the matter (4) promptly comply w.. the C about the means by which C's objectives are to be accomplished (2) give sufﬁcient info to enable the C to give informed consent when required by the rules DUTY to COMMUNICATE/keep INFORMED (*biggest reason C get upset w. if the limitation is REASONABLE under the circumstances & C gives informed consent • EXCEPTIONS: i No LIMITING a Lawyer's LIABILITY (can't K to be negligence) • MR 1..8(e)) iii (3) Withdraw. L has the authoity to make the decision w/o C consultation • DISAGREEMENT: if L believes the C's decisions are "tying his hands" so L cant effectively carry out rep.. limiting # of hours) • TIME Limitations... i. if. and must i (a) DUTY to COUNSULT: L shall (1) consult w. IMPLIED or APPARENT authority C RATIFIES the agent's conduct C is ESTOPPED from denying the agent's authority 19 ... Yes.
. a L SHALL continue representation [in spite of] good cause for terminating the representation = (i) L must obtain COURT PERMISSION.16(a) L MUST withdraw from representation if the following circumstances exist. RULE: L may use methods of communication that have a reasonable expectation of privacy w/o additional securities. EXTREME CASES: • L Misconduct. which the L has a fundamental disagreement.discharged Ls are allowed to recover the reasonable value of their services a. sue D w/o good cause just b/c mad v (5) [C has not PAID his BILL] the C fails substantially to FULFILL an OBLIGATION to L re L's services & has been given reasonable warning that L will w/draw unless the obligation is fulﬁlled vi (6) the rep will result in an unreasonable FINANCIAL BURDEN on the L or has been rendered unreasonably difﬁcult by C. GUIDING PRINCIPLE: L must protect the C's INTEREST. allowing time for employment of other counsel. ...Refrain from using a method of communication or adopt additional precautions (scrambling devises or encryption technology) for particularly sensitive info ii ENGAGEMENT Agreements. (1) ETHICAL DUTY of Conﬁdentiality (MR 1. surrendering papers & property to which C is entitled & refunding any advance payment of fee or expense that has not been earned or incurred. iv (4) the C insists upon taking action that the L considers REPUGNANT or w. 2 TYPES: • MANDATORY: MR1. iii (3) the C has used the L's services to PERPETRATE a CRIME or FRAUD. Reasonable Expectation of Privacy > does NOT impose strict liability on Ls.. the disclosure is impliedly authorized in order to carry ou tthe representation OR the disclosure is permitted by paragraph (b) • STANDARD of Precaution L's must take: i.. L is subject to disciplinary action. so C feels comfortable opening up & being honest. DISCHARGE Rule: Cs have the absolute right to discharge an L..2(a)) b. . . i (1) W/drawal can be accomplished W/O MATERIAL ADVERSE EFFECT on the interests of the C.C has the prerogative to decide whether to settle a case (MR 1.. When ordered to do so by a tribunal. if applicable (ii) Court CAN FORCE L to continue representation. applicable law requiring notice to or permission of a tribual when terminating a rep. ok > NO observations though) • (2) made between privileged persons (attorney & client) • (3) in conﬁdence (*BIG qualiﬁer) = when C has a reasonable expectation what is being communicated will be kept in secret . Prudent Ls may want to take the following additional steps: i Re SENSITIVE INFO.. but interpreted as having a negligence standard . regardless of cause • Compensation: Quantum Meriut Rule.C honesty serves the broader public interests of honoring the law & administering justice • SCOPE: rule of evidence that applies ONLY to the following situations where ALL of the elements exist: i. by taking reasonable steps to protect C's interest when terminating rep • (d) Upon termination of rep. b. etc.e. L MAY retain papers relating to C to the extent permitted by other law. a L SHALL take steps to the extent reasonably practicable to protect a C's interests.• EXCEPTIONS: when L has a known duty to consult C i Settlement. the privilege is waived • (4) for the purpose of obtaining or providing LEGAL ASSISTANCE for the C 20 .. If L acts W/O AUTHORITY... The attorney-client privilege MAY be invoked. when you get money > once get in its VERY difﬁcult to get out • Conﬁdentiality: 3 General Doctrines of Conﬁdentiality A. EVEN though some methods (i.Reinforce claims of conﬁdentiality by containing conﬁdentiality notices in faxes & emails B.i... illegal conduct) ii (a2) if L's physical or mental condition MATERIALLY impairs L's ability to represent the C iii (a3) if C discharges L • PERMISSIVE MR 1.court might ﬁnd that fee forfeiture is appropriate • C bad faith. such as giving reasonable notice to C. i (a1) if representation will result in violate of the Rules of Conduct (conﬂict of interest...TAKE AWAY: be careful when you take a C. email/fax) may have the risk of unauthorized interception • BUT.EX: C wants unreasonable delay.Ls must take reasonable steps to preserve C conﬁdentiality • OK Methods of Communication a..court might allow L to receive the full contractual amount ii. WITHDRAWAL Rule • MR 1..with respect to: • (1) a communication (oral/written. if C or L (SHOULD) KNOW someone is listening to conversation.. a C if..Obtain C consent in their engagement agreements about which various forms of communication will be used & with appropriate warnings to the C iii CONFIDENTIALITY NOTICES.EX: adverse effect on C's interest > attorney day prior to trial beginning ii (2) the C persists in a course of action involving the L's services that the L reasonably believes is CRIMINAL or FRAUDULENT.16(b): L MAY withdraw from rep.if becomes too expensive for C & L can't/wont help vii (7) other good cause for w/drawal exists • EXCEPTIONS to both (a) Mandatory & (b) Permissive W/DRAWs i (c) A L MUST comply w.6) = MR 1. legal liability to C & 3Ps harmed by L's unauthorized action • (4) Termination of the C-L Relationship i.. in spite of good cause for terminating ... OR .16: Declining or Terminating Representation a.e.6(a): L SHALL NOT reveal info relating to the representation of a C UNLESS the C gives informed consent. (2) Attorney-Client Privilege • POLICY: intended to encourage full & frank communication btw A & C.
b/c of the corporate structure. of one or more C will be materially limited by L's responsibilities to another [CURRENT] C.Southern Bell Telephone & Telegraph Co. statements.7: Conﬂict of Interest: Current Clients i. should be able to investigate w/in corporation w/o worrying whether conversations w. free from unnecessary intrusion by opposing parties & that he be able to sift what he considers to be relevant from irrelevant facts. will effect HOW L can represent a current C] ii. consultant.a party may only obtain if EXTRAORDINARY CIRCUMSTANCES JUSTIFY DISCLOSURE . indemnitor.. a certain degree of privacy.. to properly prepare.materially limited > referring to if what KNOWLEDGE L has gotten via those relationships (Cs / 3P / Personal). (A) Documents & Tangible Things > ordinarily. disclaimer or failure to object • via 3P > voluntary conversations w. "WHO" does the privilege apply to in corporation? • Approaches: a.• EXCEPTIONs (= when L can be forced to testify): i. must feel conﬁdent can defend decision in court (& win) • (2) the representation is not prohibited by law. iii the superior made the request of the Ee as part of the corporation's effort to secure legal advice or services. (b) (re Opinion Work Product) Protection Against Disclosure > if the court orders discovery of those materials. Taylor. those materials MAY be discovered if: • (i) they are otherwise discoverabel under Rule 26(b)(1). workers on the ground) • FLAW: in order for L to give advice to "control group". concerning the litigation • EXCEPTIONs: i... L likely will need to conduct interviews..Strictly protected > (Coppock) very hard to get & can't imagine the situation that would justify this type of disclosure.wrongful death of seaman.if can be shows that a party has SUBSTANTIAL NEED for the documents. (2) Subject Matter Test (MAJ (FL) / Restatements. 21 . surety. (1) Waiver. conclusions. iv the content of the communication relates to the legal services being rendered. OR • (2) [Current & Former] there is a signiﬁcant risk that the rep. (1) Crime-Fraud Exception RAISED (ex: claim privileged doc would show tobacco co defrauded public about the risks of smoking) b.. that prohibition extends to all members of the L's ﬁrm A. (3) Work Product Doctrine [*Seminole Case: Hickman v. BUT STANDARDS for discovery vastly different *POLICY: opinion protected more than ordinary > documents w. (2) Crime-Fraud Exception. obtain their substantial equivalent by other means b.. etc. Rule 26(b)(3) of the Federal Rules of Civil Procedure (*most used rule) • Trial Preparation: Materials a. US) b. D took written statements of crew members] • POLICY: proper preparation w/o fear of opposing party being able to have access to NOTEs & mental IMPRESSIONS of case . though maybe not the knowledge (knowledge likely held w. (1) Representation Against CURRENT CLIENTs • MR 1. a former C or a 3rdP or by a personal interest of L . the clear mental impressions of the L should be protected more a. Deason i the communication would not have been made BUT FOR the contemplation of LEGAL SERVICES ii the Ee making the communication did so at the direction of his or her corporate superior. they might NEVER by CREATED (hurting L's rep of the C) • SCOPE: materials prepared in anticipation of litigation i. State) a.privilege is waived IF advise was sought OR used in the furtherance of future criminal conduct • Procedure for determining application (American Tobacco Co. insurer or agent). need to know its contents C.proper preparation demands L work w. correspondence. briefs. ii. For OPINION Work Product. v. For ORDINARY Work Product. A concurrent CONFLICT of INTEREST exists if = • (1) [Current ONLY] the representation of one C will be directly adverse to another [CURRENT] C. (a) [Bar to Conﬂicts of Interest] L SHALL NOT represent C if the representation involves a concurrent conﬂict of interest. ii. lower Ee is privileged or not (Upjohn v. opinions or legal theories of a party's attorney or other rep. & the subject matter of the communication is within the scope of the Ee's duties v the communication is not disseminated beyond those persons who. burden shifts to D to EXPLAIN away (standard: preponderance of the evidence) • Related Privilege: CORPORATE ATTORNEY-CLIENT Privilege & Internal Investigations i. mental impression. 3P are NOT privileged • by raising as an issue in the proceeding ii. (4) Crime-Fraud Exception • Conﬂicts of Interest *if the rules prohibit a L's conduct.b/c more speciﬁc) • 5 Part Test .. (b) [EXCEPTIONS to (a)] In spite of the existence of a concurrent conﬂict of interest under para(a). w/o undue hardship. AND • (ii) (re Ordinary Work Product) the party hows that it has substantial need for the materials to prepare its case & cannot. v. .. it must protect against disclosure of the mental impression.(EXCEPTIONs) BUT subject to Rule 26(b)(4).reasonable = JURY question > if gets to this. L may represent C if: • (1) L reasonably believes that L will be able to provide competent & diligent representation to each affected C. memoranda. (2) Adversarial HEARING held > each party presents evidence & argument • (Burden of Production) Exception Asserting Party must show PRIMA FACIE evidence of the why applies • (Burden of Persuasion) If prima facie case. (1) Control Group = Upper Managment ONLY > the people that have the responsibility for what is going on. prepare legal theories & plan strategy i. (3) Waiver iii.. (1) Work Product Exception (ABOVE) • 2 Types of Work Product > allowed discovery under the exception clause.. a party may NOT discover documents & tangible things that are (SCOPE) prepared in anticipation of litigation OR for trial by or for another party or its representative (including the other party's attorney. which they cannot otherwise obtain w/o UNDUE HARDSHIP b.several ways in which the CLIENT can waive the privilege (aka allows the L to testify on the issue): • agreement. . IF L were forced to hand these docs over to opposing counsel..
. C .L cannot carry out the duty of loyalty owed to both Cs if in same matter. BUT only to extent reasonable necessary to prevent the harm .zealous rep on both sides is needed for the adversarial system to work properly.• • • • • (3) [SINGLE vs UNRELATED MATTERS] the rep does not inolve the assertion of a claim by one C against another C represented by L in the same litigation or other proceeding before a tribunal. AND that is likely to result in a substantial injury to the org. and then tell will report out if nothing is done ii.Only if both give INFORMED Consent in WRITING -> L may only undertake rep. relationship exists btw C & the ﬁrm.ex: Publix & Whole Foods) 22 . C's w.L reps org as a WHOLE > not each person employed by it.L may be able to rep both adverse Current Cs in litigation depending on ISSUE of the cases i. AND • (4) each affected C gives informed consent. para(b).NO > L may NOT undertake rep that involves a claim against another current C in the SAME litigation or proceeding before a tribunal. senior ofﬁcers... EXCEPTION: if there is a SIGNIFICANT RISK that L's action in one case will MATERIALLY LIMIT the L's effectiveness in a diff. • (a) General Retainer • (b) Pattern of repeated retainers that suggests a continuous relationship a. that involves a claim that is adverse to another current C in UNRELATED matters if both Cs give informed consent in writing • POLICY: a.. whatever L does for one harms the other b. health beneﬁts & legal counsel > effectively this deems them a SINGLE ENTITY for CONFLICT REASONS (c) Single/Related Matter vs Unrelated Matters.a C L is currently doing work for.. (2) Undermines the Adversarial System. IF Unrelated Matters..7(b)(3)) • POLICY: a. (2) the L reasonably believes that the violation is reasonably certain to result in substantial injury to the Org. times on behalf of diff...if L is employed by an Org.6 permits such disclosure.13: Organization as Client • (a) A L employed or retained by an ORG represents the Org acting through its duly authorized constituents = answers WHO L's current client is > the ENTITY. UNLESS the L reasonably believes that it is not necessary in the best interest of the Org. AND ii inequitable results will follow if the corporate separateness is respected c.Likely best to ﬁrst report up. that is clearly a violation of the law.6 = REPORT IT OUT . L MUST report it to higher ups in the Org (& can go up the chain of command until reach the very top) • (c) EXCEPT as provided in Para(d). Ee or other person associated w. Same reasons for disallowing rep in a single matter apply BUT. thus don't take direction from just anyone • (b) if a L for an Org. or a refusal to act. BUT ONLY if and to the extent the L reasonably believes necessary to prevent substantial injury to the Org. (c)(1)-(2) = Trumps 1.(1) warnings to higher-ups are not headed + (2) L reasonable believes a substantial injury to Org is reasonably certain = L MAY reveal info to outside authorities required. as a whole . do NOT have to have a current case w. they ANSWER & take DIRECTION only from duly appointed people in the Org . the L SHALL refer the matter to higher authority in the Org. ALL subsidiaries. IF.. intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the Org.. knows that an ofﬁcer. Legal Positions = conﬂicts when L takes a position on behalf of one C that is adverse to the interest of another • GENERALLY: ok. is engaged in action. as determined by applicable law = REPORT IT UP .when an ongoing prof. MR 1. (1) Duty of Loyalty. the Org.. then the L SHALL proceed as is reasonably necessary in the best interest of the org. competing interest. tribunals at diff... a. (2) Alter Ego Test = the L of one entity is considered to have C-L relationships with any entites consider to be its alter egos • Alter Ego = i there is such a unity of interest that the serparate personalities of the corporations no longer exist.. (1) Per Se Rule = L who represents a member of a corporate group will be treated as having an C-L relationship w. case. insists upon or fails to address in a timely & appropriate manner an action.. then L may NOT proceed w/o the informed consent of both Cs ii. EVEN if the Cs consent (MR 1. conﬁrmed in writing (a) Current Client = i. travel dept. TYPES... (1) Current Case. (3) Facts-&-Circumstances Test: the court must examine all the fact & circumstances to determine whether the entites in question are so closely related as to amount to one C • Discotrade Ltd v. to the highest authority that can act on behalf of the Org. or a violation of law that reasonably might be imputed to the org.. to do so.IF. (1) despite the L's efforts in accordance w. IF Single / Related Matters. afﬁliates or other members of the group b. computer network. such that C reasonably expects the ﬁrm is its L.13(a)) i. then the L may reveal info relating to the representation whether or not Rule 1.. AND b.Whose the C. if warranted by the circumstances.. Levin: current C b/c pattern of repeated retainers + L did work for C both BEOFRE & AFTER ﬁling of adverse complaint (b) ENTITY Representation = L employed by an entity represents IT rather than any of its members or constituents (MR 1.... Competing Economic Interests (taking 2 Cs w.additional conﬂicts that adversity to current Cs i.if L aware anybody in the org is going to commit an illegal act that will substantially/materially harm the org. the highest authority that can act on behalf of the Org. including...L may take inconsistent legal positions in diff.. Wyeth-Ayerst Intrnl (2002): 2 corp share same board of directors. email. president. OR ii... OTHER Corporations: SINGLE vs MULTIPLE Corporations for Conﬂict Reasons .. cannot be done if the same L is representing both Cs ii. AND • (2) adverse representation in unrelated matters does not undermine the integrity of an adversarial presentation (d) Positional Conﬂicts of Interest. (2) Continuous Relationship. ﬁrm in order to be a "current client" • IBM v..when do sub-sidiaries corporations qualify as having a C-L relationship with the same law ﬁrm? • 3 Approaches: a.mere fact that an adverse precedent may result does not create a conﬂict of interest a.. both are mitigated by the separate matters & informed consent to the point that the risk is allowed : • (1) Impact on the duty of loyalty is decreased b/c different matters.
ONLY have to show the two are substantially related. Ethical BUT in limited use > mere fact that C gave consent is not conclusive to consent holding up • Factors considered in whether consent will hold up in court: i Speciﬁcity > in using a prospective waiver. exceptions *FL.9(a): L MAY undertake representation against a FORMER C. then the rest of the 23 ﬁrm cannot take the case either. business practices or key personnel does NOT qualify to create a substantial relationship (MR 1. unrelated litigation) • (e) CONSENT i.. • (d) [EXCEPTION to (c)] the L's ﬁrm is not disqualiﬁed if.. i both the affected C & the prospective C have given informed consent.9.10 issue • (a) [GENERAL RULE] While Ls are associated in a ﬁrm. (2) Representation Against FORMER CLIENTs • MR 1. C seeking services > right to Counsel of CHOICE C against whom L undertakes rep > duty of future LOYALTY of counsel b. even w/o the CONSENT. POLICY: Rep against a former C is permissible.. if." . in turn substantially increasing legal fees b/c Ls would be forced to take into account future lost opportunity • (4) Agency Law > L's are agents for their C..Former Cs & Imputation..9 Cmt 3) • (3) Potential Former Clients.L precluded from attacking work product L prepared for former C • (2) "Playbook Info" > L's knowledge of a C's litigation strategy. approaches to negotiation. LIMITED Duty of Loyalty. Substantially Relationship Test (MR 1. OR (ii) if there otherwise is a substantial risk that conﬁdential factual info as would normally have been obtained in the prior representation would [STANDARD] materially advance the C's position in the subsequent matter • To satisfy the test. MR 1... WHY. only those situations where it would be impossible for a L to comply with the duty of loyalty to both C are not allowed are barred ii. L would owe former Cs a LIFETIME duty of LOYALTY... NOT allowing such would place unreasonable limitations on the opportunities of both C & L • why can't ALL conﬂicts be subject to consent? a.. them • (2) Deterrent of Small Claims > a Per Se prohibition on rep. related.as long as there is no ordinary conﬂict of interest (unrelated matters.if NOT sub..analogizing lawyers to agents > this used to show that this is not the only time in life that this concept ii...If there is a 1. w. AND the personally disqualiﬁed L is screened from any participation in the matter AND the prospective C is promptly given written notice about the matter C. and NOT on any duty of loyalty (for reasons discussed above) a. the principal . presumption that public policy favors Cs choosing who rep. if applicable a. Related ISSUES: • (1) No Duty of Loyalty > fundamental justiﬁcation of the substantial relationship test is protection of the former C's right to conﬁdentiality.18: Duties to Prospective Clients • (b) L who is unengaged MAY NOT use or reveal conﬁdential info gained in consultation • (c) L who conducted the consultation PERSONALLY invokes the former C disqualiﬁcation rule. the extent & subject of what was conﬁdential must be exposed. conﬁrmed in writing. L can undertake representation w/o ANY discussion w/ former C • Irrebuttable PRESUMPTION = legal presumption that sensitive materials WERE disclosed by the former C AND that such materials WILL be used by the L against the former C for the current C.9. POLICY: when C should / should not be able to consent to a conﬂict is based on a balance of C interests • why should L EVER be able to UNDERTAKE such representation? a. MR 1.7 (CoI current) or 1. a C sufﬁcient to invoke the former C disqualiﬁcation rule? a. if the matters are not substantially related b/c: • (1) C's Right to Chose Counsel > a duty of ABSOLUTE loyalty to all former Cs would substantially limt the ability of other Cs to select counsel of their choice.must be assumed to uphold the spirit of the rule > otherwise.. UNLESS . it being narrowly tailored is crucial to showing C understood the material risks (as opposed to General & Open-Ended) ii Experience of C > if C is an experienced user of legal services & is informed of the risk that a conﬂict may arise iii Independent Legal Counsel > if C has own legal counsel that is advising in re to giving consent B.7 or 1. OR (ii) if are substantially related. BUT the agent is not prevented from competing w. OR ii the L took reasonable steps to avoid being exposed to more conﬁdential info than was necessary to determine whether to represent the prospective C..same until 1.must ensure to fully explain all possible conﬂicts & risks • Prospective Waivers = waivers obtain at the time of engagement agreeing to give consent to FUTURE conﬂicts a. under agency law...9 issue. after termination of employment an agent may not use conﬁdential info against the principal. Allowing L such promotes the interests of BOTH clients. none of them SHALL knowingly represent a C when any one of them practicing along would be prohibited from doing so by Rules 1. do NOT have to show harm .• GENERALLY: ok. against former C would deter Ls from taking on rep in relatively small matters • (3) Increase of Legal Fees > Unless limitations est.. (2) the passage of time has made the info gained in the prior representation stale iii..9 Cmt 3) = (i) if the 2 matters involve the SAME transaction or legal dispute. (3) Imputation: L's disqualiﬁcation = Firm's disqualiﬁcation • GENERAL RULE i.9 (CoI former). then there is a 1.. the former C gives INFORMED CONSENT. then "except as provdied elsewhere in these rules OR. defeating the purpose of a duty of conﬁdentiality • EXCEPTION: a. conﬁrmed in WRITING i.is a preliminary consultation w. (1) if info in question has become generally known OR b.. (i) if the current & former matters are NOT SUBSTANTIALLY RELATED (no consent from either C needed).Imputation Rule = if new L at ﬁrm is disqualﬁed b/c of 1. Effective Consent: Fundamental Issue: does the C reasonably understand the material risks that the waiver entails? • Informed..10: Imputation of Conﬂicts of Interest: General Rule .
• (ii) WRITTEN NOTICE is promptly given to any affected former C to enabel the former C to ascertain compliance w. AND b.. the ﬁrm actually received material conﬁdential info regarding the former C 24 . . his strong feelings do not impute to the rest of the ﬁrm from taking the case b." a.. (1) MOVED Lawyer • re FORMER Cs . respect to the matter...same until 1..Imputation Rule = if new L at ﬁrm is disqualﬁed b/c of 1. & no other Rule.9(a or b) & arises out of the disqualiﬁed L's association w. interests materially adverse to those of a C represented by the formerly associated L & not currently represented by the ﬁrm. may not apply) ! (2) Screeding measures instituted in TIMELY FASION ! (3) DQ'd L should receive NO PORTION of the FEE relating to the matter ! (4) Written notice given to the affected C • Re Former PROSPECTIVE Cs. EXCEPTIONs: L's old ﬁrm CANNOT rep previously imputed C. w. . then "except as provdied elsewhere in these rules OR. such as: . L can personally undertake representation against former prospective C ii. CONs. but instead personally disqualiﬁed L is kept from involvement in the matter *RECENT CHANGE: 2009 review rule allowed in MR • Steps to take: ! (1) Appropriate measures to prevent disclosure of conﬁdential info BY disqualiﬁed L. these Rules & w.a state that review MAY be available before a tribunal.7 • (d) The disqualiﬁcation of Ls associated in a ﬁrm w.an agreement by the ﬁrm to respond promptly to any written inquiries or objections by former C about the screening procedures.9 (CoI former).. a ﬁrm.strict application of imputation principle would result in double disqualiﬁcation (= ﬁrms disqualiﬁed from all OWN former Cs & all new L's former Cs) > an unsound public policy decision & highly DISFAVORED • THUS. L goes his baggage > any of L's PREVIOUSLY imputed disqualiﬁcation's on the ﬁrm are LIFTED. (2) would unfairly restrict the mobility of Ls between ﬁrms & unnecessarily limit C free choice of counsel • Imputation By Situations & Solutions. these Rules.(1) the current matter is substantially related to the prior representaiton AND (2) Some L still remaining w. UNLESS = w.. disqualiﬁes him from a case. (1) [Personal Belief] the prohibition is based upon a personal interest of the disqualiﬁed L & does not present a signiﬁcant risk of materially limiting the representation of the C by the remaining Ls in the ﬁrm.Ls have access to ﬁrm ﬁles & mutual ﬁnancial interests > thus assumed any conﬁdential info one member of the ﬁrm has is accessible to other members of the ﬁrm ii. which SHALL include: . former or current government Ls is governed by Rule 1. once the L leaves a.9. L must be screened from participation b.a statement of the ﬁrm's & of the screened L's compliance w. (3) Re OLD FIRM & Moved C • MR 1. exceptions *FL. the ﬁrm is not prohibited from thereafter representing a person w. (2) MOVED NON-LAWYER Ee • (MR) Screening appropriate to prevent disqualiﬁcation of a ﬁrm when it hires a nonlawyer iii.9.6 & 1.MR authorize broaders use of screening when a moved L obtained conﬁdential info a. the screening procedures are provided to the former C by the screened L & by a partner of the ﬁrm.re L's handling of is disqualiﬁed from handling a matter involving an OLD FIRM C a..L/staff working on matter should be informed & aware not to communicate w. EXCEPTIONS: even if L is disqualiﬁed under 1. .conﬁrm situation in writing .. UNLESS ... AND . (2) any L remaining in the ﬁrm has info protected by Rules 1. then the rest of the ﬁrm cannot take the case either.7 (CoI current) or 1. (1) risk of misuse of conﬁdential info is small b/c Ls of large ﬁrms generally are not directly privy to all conﬁdential info b. Pros. (2) [Screening] the prohibition if based upon MR 1..10(b): Old Firm NOT disqualﬁﬁed from handling a matter against a former C when the matter was handled by a departed L a.Disqualiﬁcation governed by MR 1. L's new ﬁrm may take the case if. AND • (iii) certiﬁcations of compliance w.Absolute Disqualiﬁcation of ﬁrm OR Screening i Absolute Disqualiﬁcation • CONs: (1) Based on unreasonable assumption that the moved L would violate his ethical obligation to maintain conﬁdences (2) Unfairly penalizes Cs of the new ﬁrm who are deprived of counsel of their choice (3) Unfairly penalizes L seeking to change employment b/c new ﬁrms may be unwilling to risk disqualifying (4) Screening deemed appropriate in other situations ii Screening = the new ﬁrm is not disqualiﬁed. at reasonable intervals upon the former C's written request & upon termination of the screening procedures • (b) [L's OLD FIRM] When a L has terminated an association w.9.7 or 1. the provisions of this Rule. i..11 • POLICY: imputation balances same police interest of disqualiﬁcation due to current/former Cs > right of C to choose counsel & duty of loyalty i.9(b) .. (1) the matter is the same or substantially related to that in which the formerly associated L represented the C. OR = when a L's strong feelings (political/personal belief).DQ'd L should acknowledge her obligation not to disclose conﬁdential info...a description of the screening procedures employed. Results • If NOT disqualiﬁed > L & ﬁrm can continue work on the case • If L PERSONALLY disqualiﬁed > debatable re the new ﬁrms choices.7 or 1.physical / oral / mental separation > make sure all Ls know to keep clear of each other • Scope of Information: anything speciﬁc to the C & learned FROM the C (if learned from diff source. affected L w. If info signiﬁcantly harmful. if. . a prior ﬁrm & • (i) the disqualiﬁed L is timely screened from any participation in the matter & is apportioned no part of the fee therefrom.. If into NOT signﬁciantly harmful...9(c) that is material to the matter • (c) [WAIVER by C] A disqualiﬁcation prescribed by this rules may be waived by the affected C under the conditions stated in Rule 1.(a) [GENERAL RULE] While Ls are associated in a ﬁrm.. none of them SHALL knowingly represent a C when any one of them practicing along would be prohibited from doing so by Rules 1. permit SCREENING > but only in the context of former Cs of laterally hired Ls from other private law ofﬁces a. UNLESS.
pro in crim cases. (1) INsureD . but some how must come to an agreement (c) ALL must be disclosed in WRITING (including how much each got). rather than as a piece meal • (4) honor C's right to choice their counsel > presumption that both Cs should have the right to choose their counsel ii..an ACTUAL Conﬂict of Interest exists.7 (a)(2) & (b): Conﬂicts of Interest btw Current Clients i. Cons: • (1) during progess of the case a conﬂict may arise. (5) Multiple Representation: Plaintiffs in Tort Cases • GOVERNING RULE: MR 1.in order to accept. provided that both co-parties consent to the rep after the L fully discloses the advantages & risks involved ii. necessary = L is not disqualiﬁed from serving as an advocate if the L's testimony would be cumulative w. forcing L to withdrawl from representing both > causes longer case • (2) aggregate settlement a. [JURY Question] • (2) the rep is not prohibited by law. NOT PERMITTED • if engaged. SIGNED by both Cs • (3) impact of the A-C privilege > no A-C privlege exist btw joint Cs as to communications made by either C to the L should a dispute develop btw the joint Cs . but some how it continues to work • Triangular Relationship: Insured (INd) ..INsureR: • DUTIES: (Contractual Relationship) 25 . • if not engaged yet. . unless a conﬂict of interest presents itself E. UNLESS each C gives informed consent. cost advantage is pretty certain • (3) expediting of the case > dealing w..UNLESS. & the advantages & risks involved • If DECIDING whether to represent Co-Parties in Tort Litigation. & actually better for L (can get multiple recoveries in one) • (2) expense sharing > could be signiﬁcant... a former C or a 3rdP or by a personal interest of L ii.justiﬁcation for it: i...9 (= conﬂicts in interest) .. IF. i. (1) Calls into question CREDIBILITY of the Witness > may confuse jury whether L is speaking as advocate or witness (neutral fact source) -> rule prevents prejudice to the interests of the tribunal & opposing party • reﬂects (a) of the rule > C cannot consent away CONFLICT b/c proctecting tribunal's interest are put above harm to the C ii. substantial hardship = broader interpretation than in the past by balancing various factors iii. L's disclosure SHALL include the existence & nature of all the claims or pleas involved & of the participation of each person in the settlement .. (a)(2) L SHALL NOT represent C if the rep involves a concurrent conﬂict of interest.. • (2) the testimony related to the nature & value of legal services rendered in the case.7 or 1. the ﬁrm actually received material conﬁdential info regarding the former C D.aggregate settlement = a lump settlement. usually stipulated as true).multiple representation is.multiple rep is PERMITTED.. opposing sides & insurance co can be simplied if only one attorney on the plaintiff's side .(1) the current matter is substantially related to the prior representaiton AND (2) Some L still remaining w. peril. the A-C privilege.communications made while 3P is present not privileged if 3P ever decides to get separate L F. but predominately refers to the extent & involvedness of CURRENT case at hand ii. AND • (4) each affected C gives informed consent. MR 1.requires balancing factors.7: Lawyer as Witness i. IF.. (6) Insurance Defense Practice *unique area of law fraught w. conﬁrmed in writing *VERY Important in Multiple Representations > must make sure C are aware of the possible effects on loyalty. UNLESS there is a conﬂict of interest w.most insurance companies would like to settle it at one time. L MUST.concurrent conﬂict of interest = if there is a signiﬁcant risk that the rep of one or more C will be materially limited by L's responsibilities to another C.. (b) [EXCEPTIONs] In spite of the existence of a concurrent conﬂict of interest under para(a).. (4) Advocate ! WITNESS in same trial • MR 3. (b) get both C's agreement on HOW to SPLIT (no indication WHO sets the #. L must WITHDRAWAL from representing both Cs a..serving as both advocate & witness may create a conﬂict of interest btw L & C • reﬂects (b) of the rule > C may consent where this is applicable b/c deals with SELF-HARM • USE: where L is likely to be a necessary witness i. a former/current C • POLICY: very controversial rule re whether it should be implemented or not ..so price same for Cs either way.. (b) L1 MAY act as an advocate in a trial in which another L in L1's ﬁrm is likely to be called as a witness UNLESS precluded from doing so by Rule 1. that of other witnesses ii.. (a) A L shall NOT act as advocate at a trial in which the L is likely to be a necessary witness UNLESS: • (1) the testimony related to an uncontested issue (= no further evidence is needed to est. • (3) the rep does not inolve the assertion of a claim by one C against another C represented by L in the same litigation or other proceeding before a tribunal. L can only precede to can represent one of the parties • POLICY re taking multiple representations i.. OR • (3) disqualiﬁcation of the L would work substantial hardship of the C ... (a) get both C's approval to ACCEPT..Defense Counsel i.8(g): [AGGREGATE Settlements] L who represents 2 or more Cs SHALL NOT participate in making an aggregate settlement of the claims of or against the Cs.. but in tort cases contingency fees are most likely charged . (2) Avoiding Harm to C..Insurer (INr) . in a writing signed by the C.Relief to (a) = 2nd L in ﬁrm can rep ﬁrm's C if 1st L has to testify.. or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas. Pros: • (1) reduction of legal fees > NOT really. conﬁdentiality. L may represent C if: • (1) L reasonably believes that L will be able to provide competent & diligent rep to each affected C.only a POSSIBLE Conﬂict of Interest exists.substantial hardship. no imputation of disqualiﬁcation.
. (a) [NORMAL Relationship] When C's capcity to make adequately considered decisions in connection w. w.6 = 1.NOT allowed. rep. (7) Diminished Capacity • vs Criminal i. as far as reasonably possible. C = DUTY to Maintain NORMAL RELATIONSHIP. C-L relationship.such a sensitive issue. same as others) w..conﬂict may develop btw the IND & INR. (ix) Subrogation: policies typically provide that the INR is "subrogated" to the rights of the IND = if INR makes payments out to the IND for a damage. (viii) Multiple Insureds: when insurance co may have multiple insureds in a single matter • the insureds may have conﬂicting interests if their degrees of fault or amount of coverage differ i. treating both the INeD & the INeR as Cs i WHY Modify. mental impairment or for some other reason. regard to handling cases & requires DC to provide info to independent auditors for their review • ISSUE: (1) may interfere w. (b) [WHEN can get HELP] When L reasonably believes that C has diminished capcity. maintain a normal C-L relationship w. do not apply > no discussion of risks. IND to INR: give right to control the defense.usually regards competency to stand trial or insanity . illegal • colluding = circumstance under which people concede liability or conspire to get more $ from the rightfully owed from INR . guidelines for defense counsel w. C w.. AND = DUTY of L to always in the in interest of their CLIENT. INR automatically gets IND's rights to sue the 3P to recover costs .. dementia) NO Constitutional requirement or deferral of the trial until a party is competent to stand trial • usual solution: guardian ad litem. the INeR being treated as a 3P payee i PRO: DC's ethical obligations are much clearer & fall in line with set standards ii CON: Ignores the fact that INeR-INeD relationship is based on a CONTRACT iii MR 1.Insured (IND) • Duty to Defend > while INeR picks the counsel.. whether b/c of minoirty. IFf the IND also has claims against the 3P that are not covered by the policy ii. civil. IRs have begun est. a normal relationship (i.14: Client w. no withdrawal ii Conﬁdential Statements by INeD UNAWARE to INeR • if evidence INeD is engaged in FRAUD or COLLUSION. • (2) there is no interference w. (iii) Settlement: standard liability policy allows INR to settle the case over the objections of the IND .Insurer (INeR) • CONTROVERSIAL > blurs who should be able to call the shots in the case & who the duty of loyalty is owed to iii.. so aware if open to liability for the difference c. (3) Defense Counsel (DC) . (ii) Excess Claims: when P seeks damages that exceed the policy limits. criminal. would defeat the purpose of by allowing the punishment to not effect those its intended for] b. including ability to accept/reject any settlement & select counsel • Main Conﬂicting Issues: a.. (i) Coverage disputes: when there is something that INR does not want to cover • when INR almost always will NOT cover: i contractual limitations ii intentional torts iii punitive damages. individuals or entites that have the ability to take action to protect C &. (1) C has diminished capacity + (2) such capacity puts the C at risk of SUBSTANTIAL HARM + (3) C cannot act in own interest . no informed consent.. (v) Uninsured or underinsured motorist claims: some policies cover IND if other driver doesn't have or has too little insurance • Issue: INR can end up defending both sides f.. to look out for their own interests • Modiﬁed Two-Client Model: DC treat as multiple representation (w. who does not have a right to view the conﬁdential info e.. (2) Defense Counsel (DC) . conservator or guardian . a coverage defense. there is most certainly an A-C relationship w. [*WHY > matter of public policy.many of the principles of mult... a rep is diminished. the court may appoint a guardian ad litem to protect its interests • GENERAL RULE: MR 1.a. DC should continue rep w/o revealing the INeD's conﬁdeces to the INeR iii CONS: blurs the ethics obligations of the DC • One-Client Model: DC represents only the INeD.8(f)[3P PAYERS]: A L SHALL NOT accept compensation for rep a C from one other than the C UNLESS: *indicates preference for 1C model > requires L-C relationship take precedent no matter who pays • (1) C gives informed consent. the A-C privilege > L must write down in bill all doing for C & provide to audit group.. the insurance company will: • (a) duty to defend: defend any suit against the insured w/in the coverage of the policy regardless of the merit of the suit.many domestic cases (custody of minor children.. abuse & neglect cases.e. as close as possible. SOLUTIONS: • Best SOLUTION: Retain Independent Counsel . including consulting w. BUT make a settlement offer that is w/in the policy limits • notice should be given to the IND that an excess claim is being asked or offered. INR to IND: the standard liability policy agrees for a premium. (vi) Counterclaims g.if L REASONABLE BELIEVES. WHY: INeR repeat customers for DCs & pay the bill / INeD are there only once & do not pay the bill b.if a party is incompetent. is at risk of substantial physical. ability of DC to provide a competent defense to IND (directs DC how to do job or how to limit it) (2) bill audits interfere w. (b) if one wants to settle & the other doesn't d. a C of diminished capacity ii. (vii) Fraud or collusion by the IND. ﬁnancial or other harm unless action is taken & cannot adequately act in C's own interest. Diminished Capacity i. L MAY take reasonably necessary protective action.L must maintain. DC should w/draw & possibly disclose info to INeR • if evidence that est.happens a lot to INR > people tend to unload when believing an insurance co is paying . seeking the appointment of a 26 guardian ad litem. AND • (b) pay any judgment against the insured up to the applicable policy limit b. the insured • Main ISSUE: DCs protect the interests of the INeR over the INeD a. cannot mention an insurance co is involved in trial or automatic mistrial > would skew the jury h..Constitutional REQUIREMENT D be competent to stand trial ii.other issues: (a) Bad Faith to Settle (INR doesn't really try to settle when could). L's independence of professional judgement or w..INeD NEEDs to retain independant counsel. L SHALL. not the PAYER • (3) info relating to rep of a C is protected as required by Rule 1. (iv) Litigation guidelines & audits: to control litigation costs. slight modiﬁcation). in appropriate cases.6 trumps PAYER's interest > payer cannot interject themselves in C-L relationship G.
L is impliedly authorized under Rule 1.. When taking protective action pursuant to para(b).C still is entitled to exercise personal liberty to the maximum extent possible *BIG CON of appointing a guardian ad litem > such deprives the C of a substantial degree of personal liberty b. unless there is a basis in law & fact for doing so that is not frivolous.6(a) to reveal info about C. many states model anti-frivolous state of this rule (FL 57.105) • 4 Speciﬁc Obligations of Lawyers: a. but ALL recommendations affecting the Ward should be left to the guardian a. ﬁnancial or other harm unless action is taken & cannot adequately act in C's own interest..GFA (objective standard). seeking the appointment of a guardian ad litem. [NO Frivolous Claims Rule] L SHALL not bring or defend a proceeding.. answers.. (2) L reps the Guardian ad Litem in Court. which includes a good faith argument for an extension.(1) Dif. or needlessly increase the cost of litigation 27 . • (1) = DUTY not to engage in frivolous legal proceedings . (c) Info relating to the rep of a C w.. the more meritorious claims & defenses will prevail & NOT those represented by Ls who stray beyond the bounds of law A.if L REASONABLE BELIEVES. L must communication info to C & assist C in making deicisions a. the C's interest (can't be to force settlement) ... must give a REASON that is (i) Legitimate & (ii) consistent w. Bringing ACTIONs • (1) Frivolous Claims *the concept of frivolous applies to all things in legal proceedings > causes.. is at risk of substantial physical. L MAY take reasonably necessary protective action. complaints.the least restriction on C's autonomy AND will adequately protect C in rep • Seek appointment of a general guardian for the C's property or a Guardian ad Litem • Consult w.forcing to settle. such as to harass. must take one that balances..Risk of substnatial harm to the C b/c of inability to make decisions regarding his representation • Attorney's DUTY (MR 1. BUT C is also not fully competent to make decisions for himself • POLICY: a. the interests of the C = if L needs delay.(b) [WHEN can get HELP] When L reasonably believes that C has diminished capcity. [EXCEPTION] L for the D in a criminal proceeding.. (1) C has diminished capacity + (2) such capacity puts the C at risk of SUBSTANTIAL HARM + (3) C cannot act in own interest = L MAY get help to protect C. PROs.14(b)) • Using a reconsideration person to permit clariﬁcaiton or improvement of circumstances • Limitations on Zealous Representation . value of claim for death vs injury) ii. CON. his role is no longer a legal capacity BUT to determine what is in the best interest of the ward & to report those ﬁndings to the court ii.ex.C cannot respond to L's questions or help w.. an impaired C to the maximum extent possible . including consulting w.1 Cmt 2 gives guidance • Frivolous ! (1) if claim reﬂ ects facts that have not been fully developed or L expects to develop more during discovery (2) if L believes the action will ultimately LOSE > only must believe making a GFA iii. or the respondent in a proceeding that could result in incarceration.expediting litigation might not always be in the interest of L's C (why delay. cause unnecessary delay. the guardian's recommendations • Ward L's Role: advocate position of Ward. motions..14(b) trumps 1.asks whether a reasonable L would agree a legitimate argument can be made • (2) = EXCEPTION: criminal defense proceedings > reﬂects the D's constitutional right to a presumption of innocence . EVEN IF disagrees w.i.6.. STANDARD: Objective > to the best of the L's knowledge. degrees of impairment > from mild to incapacitating.if a court appoints a L to serve as a guardian. (4) Attorney for C W/O Guardian ad Litem • Most Difﬁcult Position = L is not authorized to make recommendations on the C's behalf. Federal Rule 11 of Civil Procedure • POLICY: meant to eliminate the "empty-head pure-heart" justiﬁcation for a frivolous argument a. Diminished Capacity in Domestic Cases i. but only to the extent reasonably necessary to protect C's interests = 1. many can still participate in decisions affectiong their lives (2) Normative. or assert or controvert an issue therein. L's Options: if take action. bulk of litigation re frivolous law suits developed from this > provides a MONETARY SANCTIONS for V to frivolous proceedings b. BUT only to the extent necessary to get C help • 4 Potential (Court Appointed) Roles of a L in re to C w.6 info .. info & belief.14(a)): L should maintain a normal C-L relationship w. Causes of ACTIONs & MOTIONs • GENERAL RULE: MR 3. HOWEVER.DC can force the state to jump through EVERY hoop to prove their case against the DEFENDANT.frivolous = argument either (i) has a basis in LAW and FACT or (2) L is able to make a GOOD FAITH ARGUMENT .. (3) Attorney for the WARD. L might have to circumvent Guardian to protect the interests of the ward iii.. modiﬁcation or reversal of existing law... WHY: Pr must overcome the 100% presumption of innocence b..... it. his defense iii. individuals or entites that have the ability to take action to protect C &.2: Expediting Litigation = L SHALL make reasonable efforts to expedite litigation consistent w.POLICY: there are societal interests in placing limitations on how far L can take his zealousness in representing C (1) tribunal EFFICIENCY & RESPECTABILITY > served best by removing time-wasting & costly-to-police high jinks at their source (2) ensuring process IS & IS PERCEIVED to be EVEN-HANDED & fair > a fair system is more likely to ensure litigations w.e. of substantial harm.no exact deﬁnition but 3. (1) Guardian ad Litem. etc i.. in appropriate cases.1: Meritorious Claims & Contentions a. Deﬁnition of FRIVOLOUS.if a court appoints both a guardian & a L for the guardian.6. diminished capacity is protected by MR 1. conservator or guardian . formed after an inquiry reasonable under the circumstances • (1) Doc not being presented for any improper purpose. if there is misconduct by Guardian. so the court can deicde btw the guardian's recommendation & the Ward's desires iv. this clariﬁes the L's responsibilities • L acting in a legal capacity as Guardian's L..if the ward strongly disagrees w. but is LIMITED to only the extent necessary to protect C including revealing MR1.. family members (1. may nevertheless so defend the proceeding as to require that every element of the case be established. DELAYs • MR 3. Attorney for the Guardian & a Guardian ad Litem • court may appoint 3 representatives > Likely WHY.
1] • (3) The FACTUAL CONTENTIONS have evidentiary support or.Divorce. the gov • re Corporate Entity's Ee (where the Corporation is represented): i 3 Approaches to look at the Scope of the No Contact Rule (Rep People) re Corporate Ees • (1) BROAD: Blanket Preclusion. In dealing on behalf of a C w.. the interests of the C • 3 Obligations of L = (1) L cannot misrepresent or mislead a person re their position (MUST reveal have a dog in the ﬁght) (2) L cannot give legal advice to person EXCEPT to seek independent counsel (3) if person MISUNDERSTANDS the L's role. USE: • re Investigation Contacts.closes off too many necessary aves of informal discovery of info. other than senior mgmt can bind the corporation • (3) MEDIUM: Alter Ego Test = control group + Ee involved in the situation that CAUSED this litigation. another L's CLIENT EXCEPTIONS: communications authorized by LAW (ex: court order) OR C's attorney applies only to L's. cause unnecessary delay. 2 passengers iii... not his C. then L can ask them to please refrain 28 ... modifying or reversing existing law or for est. costs too big a deterrent -> much more cost effective to allow informal interviews ﬁrst & decide if need to depose ! suggested followed by Model Rules under MR 4.. (1) the person is a relative or an Ee or other agent of a C. even if do not have NOW but believe will AFTER DISCOVERY] • (4) The denials of factual contentions are warranted on the evidence or.... SCOPE: use of above rules in investigating a C's case • Pre-Suit Investigation: P's Counsel may engage in investigation prior to ﬁling suit so long as they do not have ACTUAL KNOWLEDGE that the person is actually represented by counsel AT THAT TIME . L SHALL NOT give legal advice to an unrepresented person.... Rule re Unrepresented Persons • MR 4. POLICY: a L's ethical duties towards persons represented by legal counsel (no-contact) &/or those NOT represented by counsel..re a Ls contact w. slowing down process • (2) NARROW: Control Group.. a C. When the L knows or reasonably should know that the unrepresented person misunderstands the L's role in the matter.L can ONLY not speak to senior management . Unrepresented Person a. transactional) • re Governmental Ee: people have a constitutional right to communicate w. a L SHALL NOT communicate about the subject of the rep.. the L SHALL make reasonable efforts to correct the misunderstanding. Car accident w... if L knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conﬂict w.L can depose ANYONE post-sanctions beginning.WHY. 3P. if speciﬁcally so identiﬁed.2: Communication w...informal interviews of pertinent people to C's case a. w.(1) Doc not being presented for any improper purpose. [No Contact Rule] In rep.BUT L can speak to those Ee that were only witnesses to the incident ! policy.bar on communication / if NOT represented. can run counter-intuitive to L's legal obligation to investigate the facts of a case before ﬁling suit to determine the action's merit b..con. .... Non-Cs. involved in a suit if REPRESENTED.3: Dealing w.. allows courts to be speciﬁc about what did wrong so can be avoided in the future • (4) Sanctions discretionary w.2 COMMENT 7 ! COPPOCK. a L SHALL NOT state or imply that the L is disinterested..pro.allows the opposing L to be responsible in making a case & ﬁnding the truth.purpose is to DETER.. the court • (5) The rule requires speciﬁcity in court order imposing sanctions • (2) Communication w. • (1) 21 Day Notice to Correct Any Violation > rule sanctions can't be imposed until party has been served a notice to ﬁx issue • (2) Sanctions must be IMPUTED to ﬁrm as well (unless exceptional circumstances) > L's ﬁrm should take responsibility • (3) De-emphasized the monetary awards & authorized court-issued sanctions (non-monetary) to deter misconduct . if speciﬁcally so identiﬁed.L can speak to NONE of the entity's Ee . Rule re Represented Persons • POLICY: Protects the integrity of the A-C relationship from interference by a L representing another person in the matter • MR 4. strict limits i. during.allowed to communicate w. are reasonably based on belief or a lack of info b. people... a person who is NOT represented by counsel. other than the advice to secure counsel. L MUST make reasonable efforts to correct misunderstanding • EX of Use. the government. NOT Cs > 2 Cs could get together & speak emergency ii.(1) represented person INITIATES or CONSENTs to the communication (2) ALL legal stages (prior.. or needlessly increase the cost of litigation • (2) LEGAL CONTENTIONs are warranted by existing law or by a nonfrivolous argument for extending... UNLESS the L has the consent of the other L or is authorized to do so by law or a court order • = Bar on L contact w. new law [*same as MR 3.. a person the L KNOWs to be represented by another L in the matter. but best just to avoid • re Silencing OWN Ee i MR 3..clear rule / con. AND = if C has some kind of association w.4: Fairness to Opposing Party & Counsel: • (f) [L SHALL NOT] request a person other than a C to refrain from voluntarily giving relevant info to another party ! UNLESS.AVOID current Ee > can speak in some circumstances. opposing counsel if done on behalf of a C who is exercising a constitutional right to communicate w. Person Represented by Counsel a.too limited > overlooks the fact that corporate Ee. such as to harass. not raise $. thus governmental Ee may be required to communicate w. will likely have evidentiary support after a reasonable opportunity for further investigation or discovery [= must have a factual basis to support the #2..investigation can be undertaken before suit ﬁled.. *1993 Amendments: BIG changes. while protecting the entity too • why not just use deposition?. EVEN though it is EXPECTED Er/Ee may obtain counsel at a future time • Mid-Case: applies even if.
effectively he would be using the C as a vehicle to do what he cannot do iii....4(a): In rep a C. a L SHALL NOT.. .4: Fairness to Opposing Party & Counsel • A L SHALL NOT: a..! (2) L reasonably believes that the person's interests will NOT be adversely affected by refraining from giving such info • re Former Ee: consent from former employment's L is NOT required. high-conﬂict cases • GENERALLY 2 Catagories: a..use methods obtaining evidence that violate the legal rights of such a person ii.use methods obtaining evidence that violate the legal rights of such a person ii MR 4. direct or participate in it in any way. Discovery Abuse = behavior motivated by goals other than the exchange of info fairly related to the issues in dispute .e.4(a): In rep a C. (c) knowingly disobey an obligation under the rules of a tribunal..e... GENERAL RULE re: MR 3. trustworthiness or ﬁtness as a L in other respects.. about the LEGALITY of taping activity. if C asks.3: Deal w. (d) engage in conduct that is prejudicial to the administration of justice. (2) W/holding info from the propounding party to which that party is entitled 29 . Document Production) • Depositions ii.(a) covers (b)-(f) > the rest are not permitted under the RPC.patients waived conﬁdentiality by bringing the lawsuit & thereby putting his physical condition in issue • (3) Secret Tape Recording i... OK if.make sure Ee is aware of L's purpose. WHY. the court • (3) Advise own C of his right to convey a settlement offer DIRECTLY to the opposing party • re Expert Witnesses: PROHIBITED w/o opposing counsel's consent . counsel or assist a witness to testify falsely.. if ruled IMPROPER. make a frivolous discovery request or fail to make reasonably diligent effort to comply w.. a L SHALL NOT. the credibility of a witness. (e) [re L's SPEECH in trial .speciﬁc limitations under discovery rules prohibits informally interviewing an opposing party's expert w/o consent from opposing counsel • re Treating Physicians: jurisdictions are divided evenly on whether DC may informally interview an Injured Party's treating physician a.4: Misconduct • It is professional misconduct for a L to: a. etc. deceit or misrepresentation. (1) Propounding unnecessarily broad discovery requests. MR 8.. d. (end of civil case) the culpability of a civil litigant or (end of crim case) the guilty or innocence of an accused.ex: modiﬁcation of doc b.may only ask for what you NEED & only what you need > avoid wasting time e. which (a) says cannot vioalte b. (1) NOT use methods of obtaining evidence that violate the legal rights of the org (2) follow rules re UNREPRESENTED parties.re asking 3P to refrain from speaking iii. who L represents & NOT give advice i MR 4. allude to any matter.. if rule PROPER. . or do so through the acts of another.. UNREPRESENTED Parties • re Settlement Offers: L's may NOT directly communicate settlement offers to the opposing party. > trafﬁc crimes] c. trying to stall) .high-stakes. destroy or conceal a document or other material having potential evidentiary value. c. juries may ONLY based ﬁnding on admissible evidence  state a personal opinion as to the justness of a cause. fraud. ALTERNATIVE OPTIONS if believe counsel has not communicated settlment offer to C: • (1) Serve an "Offer of Judgment". d. OR f.happens often in opening statements. L advising C re Secret Recording • L may advise C.questions sent by opposing party. crime that does NOT reﬂect badly in honesty. knowingly assist or induce another to do so. OR . 3 Discovery Tools Use: • Interrogatories. if authorized by rules of civil procedure • (2) File a copy of the settlement offer w. even if L believes Opposing Counsel has not conveyed the settlement offer made a. . (c) engage in conduct involving dishonesty. OR [ex: L telling C he knows a judge well & not to worry] f.. while some require on one party • MR 4.courts emphasize the physican-patient privilege b. A L SHALL NOT counsel or assist another person to do any such act = no OBSTRUCT or DESTROY evidence > unethical & illegal... a legally proper discovery request by an opposing party .opening statement signiﬁcant > if when jury then. (f) knowingly assist a judge or judicial ofﬁcer in conduct that is a violation of applicable rules of judicial conduct or other law • (4) Discovery: i.states differ on when a recording is lawful > some require both parties consent.LAWFUL recording for legitimate purposes w/o the consent of the other person does . (a) unlawfully obstruct another party's access to evidence or unlawfully alter. or offer an inducement to a witness that is prohibited by law.re L or L's agent only > does not re L's advice to a C .if illegal for L to secretly record.  that the L does not reasonably believe is relevant or that will not be supported by admissible evidence.. (d) [re Discovery] in pretrial procedure.L always knows things the jury does not. but most frequent occurrence.. (b) falsify evidence. likely win the case. e.. (a) violate or attempt to violate the RPC. to which a party must answer in a sworn statement (can be used to impeach) • Requests to Produce (i. [*ex.. thus VITAL not to misstate then  assert personal knowledge of facts in issue EXCEPT when testifying as a witness. (b) commit a criminal act that reﬂects adversely on the L's honesty.3 Limitations:] in trial. AND b. (e) state or imply an ability to inﬂuence improperly a gov agency or ofﬁcial or to achieve results by means that violate the RPC or other law.rare. (f) SEE ABOVE . if L believes evidence will be admitted but isn't > results in MISTRIAL .. BUT LEGAL for C > L need not discourage the recording but he also may not assist.re unethical discovery = overly burdensome & unreasonable discovery requests or delays (i.. EXCEPT for an open refusal based on an assertion that no valid obligation exists. BUT L still must.
1: Truthfulness in Statements to Others = In the course of rep a C a L SHALL NOT knowingly: • (a) make a false statement of material fact or law to a 3P. allowing the P to argue & jury to infer that D is hiding something • re Depositions Discovery Abuse a. but bad idea > very costly for L acting badly (has to pay to re-set up) • (3) Counsel SHALL not make objections or statements which might suggest an answer to a DE -> anything other than "objection to form" might give an answer to the question..6 trumps 4. (7) response to spoliation (= tampering or concealing relevant evidence) • (a) adverse inference instruction = court shifts the burden to offending party to DISPROVE what the "spoiled" record should have shown (EX: doctored medical records. NOT anyone else including DE's lawyer • (2) Objections need not & shall not be made during the course of depositions i EXCEPTION: (main) privileged info OR to any irregularity about the deposition itself • objection of relevance . DE & Counsel may NOT discuss doc privately beforehand c. Techniques for Dealing w.. Discovery Abuse • FORMAL RESPONSES i Motion for Sanctions > issues. L properly MAY..provides little guidance on what is/is not proper. this one is off b. (6) dismissal of the action (extreme cases) g.MUST give doc...(1) overt statements AND (2) material omissions (2) LIMITED Duty to DISCLOSE. if so.. OR • (b) fail to disclose a material fact to a 3P when disclosure is necessary to avoid assisting a criminal or fraudulent act by a C. (8) jury instructions indicating the NON-BIAS nature of the non-producing party • EX: absence of a requested doc can be brought into evidence.... (1) ﬁnes against the offending L b. (2) permission for the opposing party to engage in liberal cross-examination of witnesses on issues related to the abuse c. 2 Catagories of Ethical Issues: • HONESTY a. *can stop depo & go to judge to get ruling. EXCEPT 1. Coaching.hard to prove a negative • (b) tort liability h. UNLESS disclosure is prohibited by Rule 1. must be careful • (5) Counsel & their W-Clients SHALL NOT engage in private. Alternative Dispute Resolution • (1) Negotiation i..1 . a W is kept from knowing what other Ws WILL testify to. in order to prevent it from swaying their testimony (= the sequester rule) • coppock things it feels a little funny > rest are good guidance... (4) exclusion of evidence > court may KEEP D/P from allowing in certain evidence if do not produce at time of discovery e. what • (7) Any violation of (5) may be put on the record • (8) DR must give Witness' counsel all documents that are shown to the W during the deposition .spoiler must show the V was NOT given negligent care) *BIG..hostile cross = what opposing L might ask to negate W's testimony. EXCEPT for the purpose of deciding whether to assert a privilege • (6) Any violation of (5) is a proper subject for inquiry by DR to ascertain whether there was any coaching &. discovery d.. • (1) invite the witness to provide truthful testimony favorable to the L's C (can suggest things he is looking for) • (2) discuss W's role & effective courtroom demeanor • (3) discuss W's recollection & probable testimony • (4) discussing the applicability of law to events in issue (ex: law recognizes V's activity level before & after an accident) • (5) review the factual context into which the W's observations or opinions will ﬁt • (6) review docs or other physical evidence that may be introduced • (7) discuss probable lines of hostile cross-examination that the W should be prepared to meet .. Guidelines for Conducting Depositions (Hall v. if person going to be a butt.zero effect > noted in record & then forced to ask. tell W that the cross is going to come after you • (8) suggest choice of words that might be employed to make the W's meaning more clear • (9) L MAY NOT ASSIT THE WITNESS TO TESTIFY FALSELY AS TO A MATERIAL FACT • (10) reveal to W other testimony or evidence that WILL be presented & asking W to reconsider their recollection or recounting of events in the light of that evidence ! QUESTIONABLE ETHICAL..illegally swaying or attempting to have a witness testify in a way they would not have on their own • Proper Witness Preparation i MR. them will not help ii Use of Bar Association's Committees to deal w.. MR 4. discovery spats (ii) courts usually unwilling to impose harsh sanctions on L except in extreme cases ii Court Issued Order Deﬁning the Scope of Discovery OR Appoint Special Masters to oversee Discovery & resolve disputes • INFORMAL RESPONSES i Mutual Agreement of Counsel** .• Courts SANCTIONS: a. (3) striking afﬁrmative defenses > court prevention of D's ability to use some afﬁrmative defenses if do not comply w.6 2 DUTIES: (1) Duty NOT to engage in MISREPRESENTATION re material facts 30 .includes both. Discovery Disputes iii Responding in Kind > very uneffective & forces L to engage in misconduct iv Use discovery abuse against opposing party > unreasonable responses may be used in cross to undermine credibility B. BUT Ls generally have substantial leeway in preparing a witness to testify as long as L does NOT attempt to have a witness testify falsely ii Restatements: in preparaing the witness..coppock. but do not have to talk about it. remonstrating w.normally. (5) disqualiﬁcation of counsel who engaged in discovery abuse f.ineffective. off-the-record conferences during depositions or during breaks or recesses.(i) difﬁcult to obtain judicial time & judges likely impatient w. Clifton Precision) • (1) Deposee (DE) should ask all QUESTIONS of Deposer (DR).
per se ban on settlements including agreement L will NOT sue opposing party again in the future • BUT. but a misstatement of ability could be extortion .4 > proibits a L from using means that have no substantial purpose other than to embarrass. (b) L SHALL NOT give anything of value to a person for recommending the L's services EXCEPT that a L MAY = no bird dog fees > can't pay money or give anything of value for referrals EXCEPT for the following. then likely a proper threat of criminal prosecution that L should be allowed to use to protect C's legitimate interests • (2) Ban on Restrictions of RIGHT to PRACTICE. more narrower restrictions may be allowed: D could probably..1 .strong presumption in favor of C's right to freely choose their counsel a.. delay or burden a 3P .MR 4. Model Rules: 7.(b) fail to disclose a material fact to a 3P when disclosure is necessary to avoid assisting a criminal or fraudulent act by a C. the process is what ensures us all parties get a fair trial ii. recorded or electronic communication. since no standard to judge a fair outcome by. Delivery of Legal Services • (1) Advertising & Solicitation i.1 > prohibits an advocate from asserting frivolous claims • (2) If NOT covered by the rules.such behavior is covered by other rules if INCORRECT . a L MAY advertise services through written.. 31 ..MR 3.can NOT prevent L from taking future cases concerning the same subject matter policy. (a) [OK Methods of Advertising] Subject to the requirements of 7. re Duty to DISCLOSE.7.afﬁrmative false statement about the MATERIAL facts. • (4) about procedural aspects of the case • (5) insurance coverage ii Proper Misrepresentations. EXCEPT 1.1 & 7..BUT. • (2) existence or contents of a document.6 trumps 4. unrepresented party > disclose material info in negotiation • (4) Good Faith & Fair Dealing. BUT important not to misrep anything during negotiations b/c the price to your reputation later is TOO great.1 Cmt 2 suggests L may make misreps about a party's intentions re settlement acceptability ! **Coppock > may be ethically acceptable.. by prohibiting L from lying / cheating / stealing. • (1) no objective standard for fairness to use to determine if an agreement was fair • (2) component of fairness in other rules > rules already impose a substantial obligation of fairness...MR 4.6 2 DUTIES: (1) Duty NOT to engage in MISREPRESENTATION re material facts . i require P's counsel to agree not to disclose the terms of the settlement ii require P's counsel to turn over any discovery material produced during litigation C.L has a duty to disclose the mistake to the other party • (3) Fiduciary Duty to the Opposing Party.2: re Advertising (= communicating directly to the public at large) a....4(b) > L's conduct violates if amounts to extortion or compounds a crime *could threaten to ﬁle criminal charge IF have founded ability to. fairness rule not needed • (3) inconsistent w... • (1) testimony of a witness..neither counsel has a ﬁduciary duty towards the opposing side > inconsistent w. A qualiﬁed L referral service is a L referral service that has been approved by an appropriate regulatory authority.. including public media b.(1) overt statements AND (2) material omissions (2) LIMITED Duty to DISCLOSE.1 i Possible REMEDY if Misrepresent or don't Disclose > court may VACATE the settlement b. qualifying.3.. • (1) [Pay for Ad] pay the reasonable costs of advertisements or communications permitted by this Rule... that later learned was false when made OR has since become false • (2) Fundamental Mistake re Contents of a Writing. WHY. MR 5.includes both. Limitations on Negotiation Tactics: • (1) IMPROPER THREATs a.EX: where C has died. ways to be as effective w/o misrepresenting • False Demands = contention requested in negotiations not b/c P truly wants the demand but b/c this false demand can be used as a bargaining chip to improve the overall settlement c. Threats of Criminal Prosecution > MRs do not directly ban such threats when improper b/c believe: • (1) it's REDUNDANT...1: re ALL communication > prohibits false & misleading in communication.. being a zealous advocate . • (3) the effect of provisions of an agreement. including strength of their case or favorable interpretations of the law • Settlement Authority > MR 4..RARE.. mistakes re AMOUNT of insurance coverage & recantation of testimony by a signiﬁcant witness • FAIRNESS: NO duty or general obligation of fairness in negotiations a.MR 8...6: Restrictions on Right to Practice: • (b) L SHALL NOT participate in offering or making an agreement in which a restriction on the L's right to practice is part of the settlement of a C controversy .1 > duty on L to be truthful .necessary disclosure to correct mistakes by the other party about basic aspects of the transaction .additional duty to disclose MISTAKE of fundamental information • (1) Corrective Disclosure = correcting a rep L made.5 regulate the communication & advertising of legal services • MR 7. regardless of form = L can't lie in advertising • MR 7. • L's OPINIONS. the adversarial system > the system judges fairness by the PROCESS & not the outcome ... UNLESS disclosure is prohibited by Rule 1.. • (2) [Pay for 1-800-Ask-Gary Charges] pay the usual charges of a legal services plan or a not-for-proﬁt or qualiﬁed L referral service. but can exist w. re MISREPRESENTATIONs • Improper vs Proper Misrepresentations i Improper.
. intimidation.17. (2) Such a ban only applies to L ADERVERTISING. UNLESS the recipient of the communication is a person speciﬁed in paragraphs (a)(1) & (a)(2) = (re Direct Mail) any advertising must be crystal clear of what it is d. a prepaid or group legal service plan operated by an organization not owned or directed by the L that uses in-person OR telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan • MR 7. UNLESS the person contacted: = if for MONETARY GAINS. (c) Any communication made pursuant to this rule SHALL include the name & ofﬁce address of at least one lawyer or law ﬁrm responsible for its content • MR 7. Prospective Clients re Solicitation (= communication directed to speciﬁc people) . 1. OR • (2) the solicitation involves coercion. recorded or electronic communication from a L soliciting professional employment from a prospective C known to be in need of legal services in a particular matter SHALL include the works "Advertising Material" on the outside envelope. the L b.EXCEPT of another L / family / close person or prior professional relationship w. & at the beginning & ending of any recorded or electronic communication. ban on aggressive in-person / real time solicitation tactics . • Central Hudson Test: gov may freely regulate commercial speech that concerns unlawful activity or is misleading . (c) Every written. (b) L SHALL NOT solicit professional employment from a prospective C by written. AZ State Bar: 2 Ls advertised their "legal clinic" where they offered legal services at modest fees to low income • HOLDING: Commercial speech serves a social interest (letting public know whats available) & should not be banned i Ls may advertise. undue inﬂuence > THUS state can use greater restrictions to regulate b. Florida Bar v. deceptive or misleading advertising • (2) in-person solicitation • (3) warnings or supplementations might be required to prevent consumers from being misled • (4) reasonable "time.i.. (d) [Legal Service Plans OK] In spite of the prohibitions in para(a).• (3) [Purchase Law Firm] pay for a law practice in accordance w. OR • (2) has a family. CPAs are not trained in the art of persuasion > a L's job is to persuad ii A CPA's typical is far less susceptible to manipulation than the young accident victim in Ohralik iii However. Evolving: States may NOT ban L advertising. Soliciation are not here > L is NOT present. a state interest a. is an evil • Fact it might be hard to regulate is unpersuasive justiﬁcation for prohibiting free speech • DIRECT MAIL Advertising > some regulation ok if justiﬁed w. thus possibility of overreaching not present • Does not "stir up litigation" b/c cannot endorse the proposition that a lawsuit.e. Edenﬁeld approach might be used for Ls if Ls ONLY solicited sophisticated C rather than those like in Ohralike iii. Start: Ban on Commercial advertising or solicitation as being unprofessional b. why. Zauderer: is targeted advertising similar to in person solicitation? NO. not all commercial • Edenﬁeld v. place & manner" restrictions (to keep professional .3: Direct Contact w. recorded or electronic communication or by inperson. if: = EVEN if ok to contact under (a).. the it MAY only be regulated if the following 3 satisﬁed: i Gov MUST assert a substantial interest in support of its regulation ii Gov must demonstrate that the restriction ADVANCES the state interest iii Regulation must be NARROWLY TAILORED to achieve the state interest • HERE: 30 wait time on direct mail communication to wrongful death & person injury cases SATISFIES ABOVE ***NOT ON TEST > re constitutional law 32 . if any.2 Types: (a) & (b) re soliciation involing person contact / (c) re direct mail solicitation a. Went for It: is time moritorium on direct mail advertising constitutional? YES.. AND ii (ii) the C is informed to the existence & nature of the agreement c. • Same concerns w.. (a) L SHALL NOT by in-person. L • (1) is a L. if i (i) the reciprocal referral agreement is not exclusive. AND • (4) [Reciprocal Referral Agreement] refer Cs to another L or a NonL professional pursuant to an agreement not otherwise prohibited under these Rules that provdies for the other person to refer C or customers to the L. b/c CONDUCT + SPEECH • Conduct could involve fraud. L MAY participate w. duress or harassment c.if neither of those (which direct mail ad is not). close personal. telephone or real-time electronic contact even when not otherwise prohibited by para(a). Ohio Bar: (Seminol case) should In person soliciation be treated the same as advertising? i In-person Solicitation vs Advertising: IP Solicitation diff. or prior professional relationship w. (1) States MAY adopt per se bans on in-person commercial solicitation • Ohralik v. but they may regulate it Bates v. Fane: Does Ohralik apply to CPAs? NO.. cannot if (1) & (2) applies • (1) the prospective C has made known to the L a desire not to be solicited by the L. L differ from CPAs b/c: i Unlike L. as such. • (1) false. BUT there are limitations that the State may regulate. live telephone or real-time electronic contact solicit professional employment from a prospective C when a signiﬁcant motice for the L's doing so is the L's pecuniary gain.5: Firm Names & Letterheads ii.. Further Application & Development of Constitutional Principles • TARGETED Advertising > should be regulated as regular advertising a. Basic Constitutional Priciples • Governing Lawyer ADVERTISING a.4: Communication of Fields of Practice & Specialization • MR 7. delayed mail) • (5) advertising concerning illegal transactions could be prohibited • (6) electronic broadcast media warrants special consideration • Governing IN-PERSON SOLICITATION a.
.. (b): 2 General Rules: re Ls NOT admitted to practice in a jurisdiction • (1) Shall NOT: est..History: NonL have not always been prohibited from practicing law > developed in 1930s (great depression) for job security i. Pro Bono: means of delivery legal services in civil cases to indigents • MR 6. AND • (b) [Possible Additional Hrs] provide any additional services through: i delivery of legal services at no fee or substantially reduced fee to individuals.any REAL-TIME communication (i. [Pro Bono Hrs] Every L has a professional responsibility to provide legal services to those unable to pay. OR charitable. POLICY: does broad restirctions on the unauthorized practice of law serve the public interest? • Pro Reg = PROTECTION of the public > legal services are complex • Con Reg = not all legal services are THAT complex & low income individuals need for legal services is VASTLY unmet a. ii delivery of legal services at a substantially reduced fee to person of limited means. legal advice & negotiation. the legal system or the legal profession b. mandating is just too strong a. thus NonLs would be allowed to provide legal services in transactional or administrative matters but could not hold themselves out as Ls • (2) Deﬁne Broadly > practice of law includes appearances before court & admin bodies. L should voluntarily contribute ﬁnancial support to org that provide legal services to persons of limited means = in addition to the 50 hrs. civic.individual person. governmental & educational organizations in matters that are designed primarily to address the needs of persons of limited means.• INTERNET Marketing: generally. chat rooms) is subject to solicitation laws c. In fulﬁlling this responsibility.1 b.. (a) [INDIRECT Prohibition] L SHALL NOT practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. or its afﬁliates • (2) to provide legal services in the jurisdiction when permitted by federal law or by other law of the jurisdiction • (3) Delivery of Legal Services to Indigents in Civil Cases i. religious... OR iii participation in activities for improving the law. preparation of documents.Controversial: aspirational requirement is an oxymoron (debated below) • (a) [MAJ of Hours] provide a substantial majority of the (50) hrs of legal services w/o fee or expectation of fee to: i persons of limited means OR [= people who CAN'T afford it. community. governmental & educational org.crosses the line when person starts to COUNSEL or does it REPEATEDLY > hard line to decipher i EX: A shows B a form needed to ﬁle a motion > NOT counsel. a proceeding in which the L reasonably anticipates to be admitted pro hac vice • (3) in connection w. community. an ofﬁce or have systematic & continuous presence in the jurisdiction for the practice of law • (2) Shall NOT: hold out to the public or rep. an ADR proceeding for which the jurisdiction does not require pro hac vice admission • (4) arise out of or are reasonably related ot the L's practice in a jurisdiction in which the L is admitted to practice d. **COPPOCK: there are times to go after people (if threat to public) & there are times not too (helping another out) • No Threat.. OR assist another in doing so > indirectly prohibits the unauthorized practice of law b. PRO.Coppock. A telling B what to put on the form IS counsel ii. L SHOULD aspire to render at least (50) hours of pro bono publico legal services per year. religious. re Solicitation: MR 7. rules governing advertising & solicitation apply to internet communications a. 4 Approaches to to REGULATING: • (1) Deﬁne Narrowly > practice of law includes only appearances before courts of record. a L who is admitted in the jurisdiction • (2) in connection w. BIG ISSUE: web accessibility to L's webpage & other advertising from OUTSIDE the jurisdiction in which L practices • Unauthorized practice of law & rules from jurisdiction advertising in MAY APPLY • FIX: L SHOULD indicate the geographical limitations on their practice to avoid misleading • (2) Restrictions on the Unauthorized Practice of Law . re Advertising • MR 7.. subject to the restrictions of MR 7. (d) EXCEPTIONs to (b) > 2 Situations in which a L not admitted in the jurisdiction may have an ofﬁce or continuous presence • (1) typical in-house counsel who provides legal services ot an org. • ISSUE: Mandatory Pro Bono Services > should pro bono by mandated? .1: Voluntary Pro Bono Publico Service a. BUT develop a list of speiﬁc exceptions • (3) Case-by-Case Basis > allow deﬁnitions & exceptions to the unauthorized practice doctrine to develope as they come up • (4) Procedure to petition the Supreme Court > can get allowance to do unauthorized practice in ADVANCE by the court by showing that the beneﬁts to the public from the exception are likely to exceed the costs iii.3(a)..2(a): L may advertise their services through electronic communications. Ways to ENFORCE: • (1) Courts > hold that they have the inherent power to determine who is admitted to practice law • (2) State Law > maj of legislatures have enacted statutes making the unauthorized practice of law a crime • (3) MR 5..most Ls feel a strong sense of duty to give. (c) 4 Exceptions: Allows Ls out-of-jurisdiction to provide services on a temporary basis • (1) in association w.1 & 7.3 i = law ﬁrm web pages & other internet communications must not be FALSE or MISLEADING in violation of MR 7. [Donations] In addition. not likely to do it again • Threat. not just those who don't WANT to afford] ii [Non-Proﬁts/Legal Aid Org] charitable. where the payment of standard legal fees would signiﬁcantly deplete the org's economic resources or would be otherwise inappropriate. BUT it should still be voluntary.. civil liberties or public rights. purposes.5(a): Unauthorized Practice of Law & Multi-jurisdictional Practice of Law a. that the L is admitted to practice in the jurisdiction c.e. helping someone > not a threat. in matters in furtherance of their org. groups or organizations seeking to secure or protect civil rights. civic. Ls SHOULD VOLUNTARILY contribute MONEY to indigent legal service org. L SHOULD: . • (1) HUGE Unmet Need > vastly unmet legal need for services for low income households 33 .
Payer can't call shots] L SHALL NOT permit a person who recommends. OR ii [Knows & Fails to Fix] is a partner. • (3) [Retirement Plan for Firm Ees] L or law ﬁrm may include nonL Ee in a compensation or retirement plan. • (1) Societal need that ONLY L are baring • (2) STRONGEST: Involuntary Servitude > if mandatory.e.2: Governs the Duties of SUBORDINATE LAWYERS = if CLEAR violation. IF LAW services offered] L SHALL NOT form a partnership w.. Ethical Issues in Ofﬁce Practices • Special Ethical Problems of LAW FIRMS A. the Matter] L may share court-awarded legal fees w. = if L DIES. (B) Organizational Form • Model Rule 5. comparable managerial authority or a supervising L who KNOWs of misconduct by the other L or nonL & fails to take corrective action when the consequences of misconduct could be avoided or mitigated • MR 5.1(a) & 5. CON. re Laywers-Clients: Banned. possible conﬂict of interest > L should consider if representing a person in a relationship w.7(a)(2) that would materially impair his ability to represent C? • **MRs does not speak to other inter-ofﬁce romantic relationships. a nonproﬁt org that emplyed. except if existed prior to the C-L relationship • MR 1. his descendants • (2) [Selling a Firm] L who purchases the practice of a deceased disabled or disappeared L may.. have to provide services to ALL that need access to it b. a NonL EXCEPT THAT: • (1) an agreement by a L w.. (a) [Can't SHARE Legal Fees w.must follow (a) / if AMBIGUOUS if violation. or associate may provide for the payment of $. Model Rules re Other L & NonLs • 3 Supervisory Principles (MR 5. to the L's estate or to one or more speciﬁed persons. is a conﬂict of interest under MR 1. • (2) [NonL can't DIRECT Law Firm] NonL is a corporate director or ofﬁcer thereof or occupies the position of similar responsibility in any form of association other than a corporation. pursuant to the provisions of Rule 1.. of the estate of a L may hold the stock or interest of the L for a reasonable time during administration. rules.3(c): L is subject to discpline for the conduct of another L or NonL if the L i [If Orders/Ratiﬁes Conduct] orders the L or NonL to engage in conduct that vioaltes the MRs or w. NonL] A L or law ﬁrm SHALL NOT share legal fees w. this is a taking w/o compensation (unconstitutional) IV. (2) Duty of Direct Supervisory Responsibilities (= MUST have supervisor in place that makes reasonable efforts to supervise) • MR 5. EXCEPT that a ﬁduciary rep. even though the plan is based in whole or in part on the proﬁt-sharing arrangement.8(j): L SHALL NOT have sexual relations w. (1) Duty to Put Measures in Place • MR 5.Rule forces L to prevent putting themselves in a spot where a NonL is telling them legally what should do i. knowledge ratiﬁes such conduct. a C UNLESS a consensual sexual relationship existed btw them when the C-L relationship commenced a. associates & NonL employed or retained by the ﬁrm conforms to the MRs • WHY: insulates the ﬁrm & management. (b) Exception to (a): SL often lack the judment & experience of senior Ls. thus SL may rely on a senior Ls reasonable resolution of an arguable question of professional duty ii. the L's ﬁrm. OR 34 .4: a NonLAWYER cannot direct a LAWYER at how to do his job (reﬂected in (d)(3)) .3) a.L must be able to keep independent professional judgment . by showing the court efforts were made to prevent violations b. BUT ALL RULES STILL APPLY (i. (a) Personal Reponsibility: SL is personally responsible for comply w... AND • (4) [Nonproﬁt Related w.3(b): L having direct supervisory responsibility over another L or NonL has a duty to use reasonable efforts to ensure that the conduct of the other L or NonL conforms to the MRs c. employs.may follow (b) a. (A) Regulation WITHIN Firms • (1) Duty to Supervise ALL (Senior Ls / Subordinate Ls / NonLs / Independent Consultants) i.3) • (2) Regulation of SEXUAL RELATIONSHIPs i. (d) L SHALL NOT practice w. re INDEPENDENT CONTRACTORs • General Rule: Agent of the L > L CANNOT have them do things that the L himself could not do EX: speak w. (c) [If PAYER ! C.1 & 5. can share any interest in fees YET to COME IN w. EVEN IF the acting at direct of senior L b.3(a):Partners in a ﬁrm have a DUTY to make reasonable efforts to ensure that the ﬁrm has in place measures giving reasonable assurance that the conduct of other partners. retained or recommended employment of the L in the matter ii. or in the form of a professional corporation or association authorized to practice law for a proﬁt if: • (1)[NonL can't own STOCK in Law Firm] NonL owns any interest therein. those represented by counsel OR unrepresented (violates MR 4. a NonL if any of the activities of the partnership consist of the practice of law iii.1(b) & 5. over a reasonable period of time after the L's death. pay to the estate or other representative of that L the agreed-upon purchase price. can't share privileged info)** B. L w. or pays the L to render legal services for another to direct or regulate the L's professional judgement in rendering such legal services iv.• (2) Lack of Counsel undermines the legitimacy of the legal system > system works best if advocates equal • (3) STRONGEST: Ls have closed the system to where ONLY Ls can practice in it > if want it exclusive. (3) WHEN a L is subject to discipline for ANOTHER Ls or NonLs ethics violatin • MR 5.1(c) & 5..4: Professional Independence of a Lawyer Heart of 5. partner.17. (b) [Ban on L-NonL Partnerships.
MR 1.(2) [NonL can't DIRECT Law Firm] NonL is a corporate director or ofﬁcer thereof or occupies the position of similar responsibility in any form of association other than a corporation. BUT in legal ﬁeld the C's right to choose counsel honored over all • MR 5.belong to the ﬁrm. (1) Speaking to UNREPRESENTED persons .lender more sophisticated w. likely L could not represent one party against another . easy to break down & should be paid • fees. (1) NOTIFYING Cs > to what extent may departing Ls notify ﬁrm Cs of departure? • RULE: Obligation & Right of L to notify Cs .ﬁrm deserves some fee for the price of their name iii.source of constant tension when L leaves a ﬁrm > people get greedy • (1) Litigation OR • (2) Resolve (best way > work through it) a. OR other similar type of agreement that restricts the right of a L to practice after termination of the relationship.. (2) SPLITTING FEEs > for Cs who decide to employ departing Ls. how are fees received allocated btw the departed L & the old ﬁrm? . (2) Letter from L on his own • WHAT L can ethically put in the notiﬁcation: i scope: notice should be limited to current Cs ii context: departing L should not ask the C to end its relationship w. shareholders. employment.... L SHALL NOT participate in offering or making: • (a) [Covenants Not to Compete] a partnership. • costs.7 not clear on if necessary to get informed consent for married couples • Con.EX: instituting foreclosure actions in the future • ISSUE (2): MR 5."both must recognize that Cs do not 'belong' to either of them > CLIENTS get to choose • Options on HOW to notify: joint letter from ﬁrm & L (if can agree) OR L on his own a. but its the policy this right rests on iv departing L must not disparage the former ﬁrm > can't trash ﬁrm that L is leaving ii..... deceit or misrepresentation • 3 Signiﬁcant Issues: i. OK > Ls may property advise Cs about TI availability even if get commission or have ownership interest.. No EXPLICIT rule requiring Ls to be candid & fair w. BUT an obligation is IMPLICIT in the MR 8. SINGLE vs MULTIPLE Representation • If single client. married couples) • re Married Couples a. INFORMED CONSENT. AS LONG AS L fully discloses such relationship & gets consent by the C • ISSUE (4): MUST check what the paralegals do > supervise everything they do B..must comply w. (C) Departing LAWYERS • IMPLICITY Fiduciary Duty to Former Firm i.e. TITLE INSURANCE Co > Ls are frequently agents for TIs (commission) or have ownership interest i.gets harder b/c based on what the L "earned" i if billing by the hour > easy to divide by how many hours worked on when L was at each ﬁrm ii if contingency fee > harder b/c time worked on the case is not tracked • factor to consider..6: Restrictions on Right to Practice a. Estate Planning • Main Issues i... operating. likely to be the BUYER (why. (3) Covenants NOT to COMPETE > per se ban • POLICY: generally not favored in ANY ﬁeld. how to divide. and if refuse then know discord is present (conﬂict of interest) 35 . L MAY draft documents to be executed by SELLER & give opinion of a document's meaning/legal obligations • Later Disputes: L could handle matter on behalf of that same C against any of the other parties • If multiple client. OR • (b) an agreement in which a restriction on the L's right to practice is part of the settlement of a C controversy • SPECIALIZED AREAs of Ofﬁce Practice A. EXCEPT an agreement concerning beneﬁts upon retirement.getting it could be a litmus test for if the is something wrong btw the couple *COPPOCK endorses: just get it > doesn't hurt anything.4(c)'s prohibition of dishonesty.. Real Estate Practice • MAIN ISSUE: Attorney's fail to CLARIFY whose their C i.. (2) Later Disputes > could be potentially adverse interests.possible rep BUYER / SELLER / LENDER / TITLE Co a. MR 4.. fraud... (1) Multiple Representation (i. in-house counsel) a..4(c) Use of the lender's forms is NOT IMPROPER > usually just a condition to the loan • ISSUE (3): Financial relationship w.. but if can't agree b. (1) MR 1.3 > make clear WHO rep & advise to get independant counsel • BUT.shouldn't assume there's an issue where one does not visually exist • Pro.7 applies: allows L to rep multiple Cs in a BUSINESS TRANSACTION under some circumstance b. OR • (3) NonL has the right to direct or control the professional judgment of a L C..L reps only one party in the transaction.WHY: Fundamental right of C's to choose their counsel supports the right & obligation of the L / former ﬁrm to notify Cs . their parners or Er. (1) BEST: Joint Letter from Firm & L. the ﬁrm but the notice could state the departing L's availability to provide services iii notice must make clear that the C has the ultimate right to decide who will handle the C's matter • *most often missed & under emphasized > NEEDS to be put in.
. equipment.L CAN do so if he (or L's relatives) are the relative of C .Pro. parent. AND those sponsored by or on behalf of educational religious. he SHALL NOT use it for any person unrelated to his duties • 3.8C doesn't apply b/c L not receiving a gift • RULE: Drafting L may serve as FIDUCIARY (= executor of a will) a. or the administration of justice. Judicial CANON 3: A Judge shall conduct the Judge's personal & extrajudicial activities to minimize the risk of conﬂict w. Fraternal or Civil Organizations & Activities i. For purposes of this paragraph.activity does not have to be to the extent of a disqualiﬁer to be an issue • (D) engage in conduct that would appear to a reasonable person to be coercive. charitable. UNLESS one of the exceptions of MR 1. (3) Drafting L as FIDUCIARY *MR criticized for NOT providing guidance > MR 1. or civic org... Chartiable. staff. A judge may engage in extrajudical activites. integrity. ethical obligations exist > L should explain the following to C before accepting: • (1) COUNSEL: L must counsel C about the advantages.6: Afﬂiation w. CONFIDENTIALITY of Statements: . v. whom the L or the C maintains a close. B. except as prohibited by law or this Code.. grandchild. (B) [Incidental Attendance OK] A judge SHALL NOT use the beneﬁts or facilities of an org if the judge knows or should know that the org practices invidious discrimination on one or more of the bases ID in (A). acquired in a judicial capacity for any purpose unrelated to the judge's judicial duties . (A) Subject to the requirements of R3.. of justice.6 applies (such as using L's services to induce a fraud or crime) iii TAKE AWAY: Hard decision to make. and if refuse then know discord is present (conﬂict of interest) b.1. BUT issues may arise re the reasonableness of the fee (MR 1. . a judge MAY participate in activities sponsored by org. A judge's attendance at an event in a facility of an org that the judge is not permitted to join is NOT a violation of this Rule when the judge's attendance is an isolated event that could not reasonably be perceived as an endorsement of the org's practices • 3..getting it could be a litmus test for if the is something wrong btw the couple *COPPOCK endorses: just get it > doesn't hurt anything. national origin. (NJ 1999): estate planning & husband's illegitimate child i ISSUE: may a law ﬁrm disclose conﬁdential info of one co-client to another co-client • Conﬂict btw 2 fundamental obligations of Ls: ! MR 1. (A) A judge SHALL NOT hold membership in any org. or other resources. htat practice invidious discrimination on the basis of race.8(c): A L SHALL NOT solicit any substantial gift from a C. stationery.EX: country club that has a race based membership ii. but judges are not limited to the list . B > (1) info was not learned from the client in conﬁdence & (2) the husband tried to defraud the wife & (3) there was a signed waiver stating that conﬁdential info might be passed ii BIGGEST deciding factor here: FRAUD. including a testamentary gift. sex.1: Extrajudicial Activies In General i. including but not limited to the36 following activities: = Judge MAY participate in legal system or non-proﬁt org as long as don't violate 3. or governmental entities concerned w. so to help keep them integrated in their communities B. familiar relationship = Per Se BAN on L preparing documents for C giving L (or L's relatives) anything of SUBSTANTIAL value a. child. fraternal..1 (1)-(6): enumerate types of activities judge may do. the law. OR = must be VERY careful not to say anything that sounds as if they are throwing their weight around EX: judge raising $ for non-proﬁt > can do it.What are L's ethical obligations if L receives conﬁdential info from one spouse that is material to the other spouse's estate plan? • A. religion. or unless such additional use is permitted by law • 3. However.5(a)). the legal system. the legal system. the proper performance of the judge's judicial duties.4(b): Duty to Inform Cs of MATERIAL FACTS ii HOLDING: Duty of CONFIDENTIALITY takes precedence. . related persons include a spouse.IMPUTES to L's ﬁrm iii. ethnicity or sexual orientation . or impartiality . lots of L / broad spectrum investing / NRA • (C) partcipate in activities that would appear to a reasonable person to undermine the judge's independence. or the admin.politics / close relationships w. Regligious.father using ﬁrm to defraud the wife ii.6(a): Duty of Conﬁdentiality vs MR 1.7: Particiation in Educational. V. grandparent or other relative or individual w. • (B) participate in activities that will lead in frequent disqualiﬁcation of the judge.nonpublic info = anything the judge learns via his job that isn't public.5: Use of Nonpublic Information i.EXCEPTION: C's Relatives. Discriminatory Organizations i. when engaging in extrajudicial activites a judge SHALL NOT: • (A) participate in activities that will interfere w. (2) Gifts & BEQUESTS by C to Lawyer • MR 1. or prepare on behalf of a C an instrument giving the L or a person related to the L any substantial gift UNLESS L or other recipient of the gift is related to the C. gender.types of activities speaking to. POLICY: the regulations try to strike a balancing act btw keeping judges measured so to maintain the perception of being unbiased AND not keeping them isolated from the community. the obligations of judicial ofﬁce • 3.. then the L must obtain the C's informed consent in writing • (3) FEEs: L may possible receive compensation for serving as ﬁduciary & hire his ﬁrm to provide legal services. EXCEPT for incidental use for activities that concern the law. = a judge SHALL NOT intentionally disclose or use nonpublic info. not conduct for proﬁt. BUT must be measured in how • (E) [Ofﬁce NOT for Personal Use] make use of court premises. However. disadvantages & alt to the L serving as ﬁduciary • (2) CONFLICT of INTEREST: IF L's rep materially limited by the interest of other Cs/3P/L himself. but obtaining a WAIVER of CONFLICT in the beginning might help avoid • vs Florida case > held Duty of CONFIDENTIALITY takes precedence over the duty to communicate all relevant info to a client i DIFFERENCE from A v. Lawyers in Public Service: JUDICIAL ETHICS • (A) Limitations on EXTRA-JUDICIAL ACTIVITIES A.
attorney in fact. promises. the impartial performance of the adjudicative duties of judicial ofﬁce = Prohibits Judges from stating prior to a case coming before them.EX when happens: supreme court judicial nomination proceedings ii. (2) . OR = statement by judge that gives a clear indication of a BIAS > ﬁle a motion of recusal • (13) in connection w. (C) = Gifts / Invitations Judges MAY accept. integrity or impartiality of the judiciary • 4. loans. or one under its appellate jurisdiction iii. integrity or impartiality 3. a. A judge may act pro se & may. if acceptance is prohibited by law OR would appear to a reasonable person to undermine the judge's independence integrity or impartiality ii. a judge or judicial candidate SHALL NOT: • (1) act as a leader in. the law. trustee.1. or by Rules 4. cases. or hold an ofﬁce in. (B) A judge or judicial candidate SHALL take reasonable measures to ensure that other persons do not undertake. w/o compensation. • (11) knowingly.(9): prohibit all kinds of political activity > campaigning. fraternal. or the admin. or governmental entities concerned w. any activities prohibited under paragraph (A) 37 .2. give legal advice to & draft or review documents for a member of the judge's family. charitable.8: Appointments to Fiduciary Positions i. fundraise. how they might rule in the future . = a judge may accept reasonable compensation for extrajudicial activites permitted by this Code or other law UNLESS such acceptance would appear to a reasonable person to undermine the judge's independence. but is prohibited from servicing as the family member's L in any forum 3. but in no event later than [one yr] after becoming a judge = if ﬁduciary WHEN become a Judge.13: Acceptance & Reporting of Gifts. or issues that are likely to come before the court. this Rule as soon as reasonably practicable. • (10) use court staff. Judicial Canon 4 = A judge or candidate for judicial ofﬁce SHALL NOT engage in political or campaign activity that is inconsistent w. the proper performance of judicial duties = Judge CAN'T be a ﬁduciary. Bequests. a judge MAY participate in activities sponsored by org. or person of a member of the judge's family. or ward becomes involved in adversary proceedings in the court on which the judge serves. or commitments that are inconsistent w. administrator. make any false or misleading statements • (12) make any statement that would reasonable be expected to affect the outcome or impair the fairness of a matter pending or impending in any court. reckless disregard for the truth. speeches. AND those sponsored by or on behalf of educational religious.10: Practice of Law i. EXCEPT for the estate. (A) EXCEPT as permitted by law. beneﬁts. Loans. = a judge SHALL not practice law. & then only if such service will not interfere w. (C) A judge acting in a ﬁduciary capacity SHALL be subject to the same restrictions on engaged in ﬁnancial activities that apply to a judge personally. political dinners.1 (1)-(6): enumerate types of activities judge may do.• • • • (A) Subject to the requirements of R3.3.4. make pledges. or Other Things of Value i. Beneﬁtrs. the legal system. or other personal rep.1: Political & Campaign Activities of Judges & Judicial Candidates in General *applies to both general political activity & those that are running for ofﬁce i. iv. EXCEPT for family which (B) & (C) further restrict ii. facilities or other court resources in a campaign for judicial ofﬁce. but must report if do • (B) Judges & Political Activity A. on behalf of the judge a judicial candidate. controversies. (A) [Ban on judge accepting gifts] a judge SHALL NOT accept any gifts. such as executor. must get out of being ﬁduciary ASAP (no later than 1 yr) 3. endorse. (D) if a person who is serving in a ﬁduciary position becomes a judge. including but not limited to the following activities: = Judge MAY participate in legal system or non-proﬁt org as long as don't violate 3. (A) A judge SHALL NOT accept appointment to serve in a ﬁduciary position. or w. not conduct for proﬁt. or other things of value. guardian. but judges are not limited to the list 3. the independence. he or she MUST comply w. & 4. etc. trust. (B) A judge SHALL NOT serve in a ﬁduciary position if the judge as ﬁduciary will likely be engaged in proceedings that would ordinarily come before the judge. (B) = EXCEPTIONs from (A) re small things or equally offered things judges can accept iii. a political organization. or civic org. of justice. or if the estate. bequests. trust. 4.12: Compensation for Extrajudicial Activities i.
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