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com PROFESSIONAL RESPONSIBILITY McGowen – Fall 2009 3 duties – 1) duty of loyalty 2) duty of confidentiality 3) duty of care 5 rules 1) 2) 3) 4) 5) never create a duty you don’t want to create always be prepared to walk away assume everything you do or say will become publicly known never make a client’s problem your own never do as a lawyer anything you find repugnant as a person
Hierarchy in rules exist: MR 3.3 MR 1.6 MR 8.3 DON’T FORGET ABOUT B&P 6068 (e) – Duty of attorney to maintain confidence at every peril to his self or herself Want to know 5 things and diagram 5 things when he presents you with a problem 1) who are the players? The people that are affected by or may be affected by a choice 2) what info each player has 3) what choices each player may make 4) when each player must chose from these choices 5) payoffs
Downloaded From OutlineDepot.com DUTIES LAWYERS OWE CLIENTS §16 A LAWYER’S DUTIES TO A CLIENT – IN GENERAL
To the extent consent with the lawyer’s other legal duties and subject to the other provisions of this restatement, a lawyer must, in matters within the scope of the representation: (1) proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation; (2) act with reasonable competence and diligence (3) comply with obligations concerning the client’s confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client; and (4) fulfill valid contractual obligations to the client US v 7108 West Grand Rule: Clients are principals, attorney is agent, under law of agency the principal is bound by his chosen agent’s deeds. Holding client responsible for the lawyer’s deeds ensure that both clients and lawyers take care to comply. If the lawyers neglect protected the client from ill consequences, neglect would become all too common. A litigant chooses his counsel at his peril. Counsel’s disregard for his professional responsibilities can lead to extinction of his client’s claims. Holding: Client is bound by lawyer’s action § 52 THE STANDARD OF CARE
(1) For purposes of liability under §48 and 49, a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances
DEFINITION OF “CONFIDENTIAL CLIENT INFORMATION”
Confidential client information consists of information relation to representation of the client, other than information that is generally known. §60 A LAWYER’S DUTY TO SAFEGUARD CONFIDENTIAL CLIENT INFORMATION (1) Except as provided in §61-67, during and after representation of a client: a. The lawyer may not use or disclose confidential client information as defined in §59 if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information b. The lawyer must take steps reasonable in the circumstances to protect confidential client information against impermissible use or disclosure by the lawyer’s associates or agents that may adversely affect a material interest of the client or otherwise than as instructed by the client. (2) Except as stated in §62, a lawyer who uses confidential information of a client for the lawyer’s pecuniary gain other than in the practice of law must account to the client for any profits made. Tante v. Herring Rule: When lawyer uses confidential information to detriment of client, breach of fiduciary duty exists. Holding: - Duty of Care: Elements for an action for legal malpractice consist of: Empoyment of an attorney; failure of attorney to exercise ordinary care; damages proximately caused by that failure. Element
Downloaded From OutlineDepot.com of breach (failure to exercise ordinary care) must be related directly to the duty of the attorney to perform the task for which he was employed Fiduciary Duty: Tante was a fiduciary with regard to the confidential information provided to him by his client and therefore he owed his client the utmost good faith and loyalty. By using information available to him to disadvantage his client, he breached that duty.
DIVISION OF AUTHORITY BETWEEN LAWYER AND CLIENT § 26 A LAWYER’S ACTUAL AUTHORITY
A lawyer’s act is considered to be that of a client in proceedings before a tribunal or in dealings with third persons when: (1) the client has expressly or impliedly authorized the act; (2) authority concerning the act is reserved to the lawyer as stated in §23 or (3) the client ratifies the act.
A LAWYER’S APPARENT AUTHORITY
A lawyer’s act is considered to be that of the client in proceedings before a tribunal or in dealings with a third person if the tribunal or third person reasonably assumes that the lawyer is authorized to do the act on the basis of the client’s (and not the lawyer’s) manifestations of such authorization. §28 A LAWYER’S KNOWLEDGE; NOTIFICATION TO A LAWYER; AND STATEMENTS OF A LAWYER (1) Information imparted to a lawyer during and relating to the representation of a client is attributed to the client for the purpose of determining the client’s rights and liabilities in matters in which the lawyer represents the client, unless those rights or liabilities require proof of the client’s personal knowledge or intentions or the lawyer’s legal duties preclude disclosure of the information to the client. (2) Unless applicable law otherwise provides, a third person may give notification to a client, in a matter in which the client is represented by a lawyer, by giving notification to the client’s lawyer, unless the third person knows of circumstances reasonably indicating that the lawyer’s authority to receive notification has been abrogated (3) A lawyer’s unprivileged statement is admissible in evidence against a client as if it were the client’s statement if either: a. The client authorized the lawyer to make a statement concerning the subject, or b. The statement concerns a matter within the scope of the representation and was made by the lawyer during it.
A LAWYER’S ACT OF ADVICE AS MITIGATING OR AVOIDING A CLIENT’S RESPONSIBILITY (1) When a client’s intent or mental state is in issue, a tribunal may consider otherwise admissible evidence of a lawyer’s advice to the client. (2) In deciding whether to impose a sanction on a person or to relieve a person from a criminal or civil ruling, default or judgment, a tribunal may consider otherwise admissible evidence to prove or disprove that the lawyer who represented the person did so inadequately or contrary to the client’s instructions.
A LAWYER’S LIABILITY TO A THIRD PERSON FOR CONDUCT ON BEHALF OF A CLIENT
you become invariably the agent for that client 3. Client wants you to settle case. you must communicate your lack of authority to third party §23 AUTHORITY RESERVED TO A LAWYER As between client and lawyer. The client’s existence or identity was not disclosed to the third person. (3) A lawyer is subject to liability to a third person for damages for loss proximately caused by the lawyer’s acting without authority from a client under §26 if: a. Client comes to lawyer and says “I want you to act on my behalf. to civil liability as stated in Chapter 4. conveyance. or affirmation on behalf of the client. The contract is between the lawyer and a third person who provides goods or services used by lawyers and who. Authority: Power to alter relationships that principal gives to agent a.com (1) For improper conduct while representing a client. If you are in position where you will be perceived to have power that you do not have. The lawyer purports to make a contract. a lawyer retains authority that may not be overridden by a contract with or an instruction from the client (1) to refuse to perform. counsel. Implied Authority: Implied based on manifestations from client about what he wants you to do a. a lawyer is subject to professional discipline as stated n §5.Downloaded From OutlineDepot. Inherent Authority: Situation where people expect you to have authority. Applies to all lawyers: when you get a client. or affirmation on behalf of the client and the third person reasonably relies on the misrepresentation. unless the lawyer manifests that the lawyer does not warrant that the lawyer is authorized to act or the other party knows that the lawyer is not authorized to act. The lawyer tortiously misrepresents to the third person that the lawyer has authority to make a contract. conveyance. as the lawyer knows or reasonably should know. Apparent Authority: Not based on manifestations from client to you. a lawyer is subject to liability to third persons on contracts the lawyer entered into on behalf of the client if: a. Direct communication b. or assist future or ongoing acts in the representation that the lawyer reasonably believes to be unlawful (2) to make decisions or take actions in the representation that the lawyer reasonably believes to be required by law or an order of a tribunal MR 1. or b. this implies you have authority to call other side and begin settlement negotiations 4. judges will try to find a way to say you have authority in an effort to make things more efficient a. or b. Not true form of agency law b.2(a) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER 4 .” 2. relies on the lawyer’s credit. based on manifestations from client to someone else a. Three Types of Authority: 1. and to prosecution as provided in the criminal law. (2) Unless at the time of contracting the lawyer or third person disclaimed such liability.
as a practical matter when you’re in a proceeding that involves a number of parties the judges will want to and will find a way to hold your client to what you do and say. MR requires lawyers to quickly inform client of all settlement offers Holding: Agreement violated rules but lawyer was not punished because court concluded that disciplining lawyer years after an unrepeated and relatively minor violation of the MR would not serve purpose of attorney disciplinary proceedings. as to a plea to be entered. as required by Rule 1. as defined in Rule 1. MR 1. is required by these rules (2) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished (3) Keep the client reasonably informed about the status of the matter (4) Promptly comply with reasonable requests for information. shall consult with the client as to the means by which they are to be pursued. In Re: Grievance Proceeding Rule: Lawyer responsible for obeying MR and comments accompanying them – cannot contract around the mandatory MR. Holding: Client not bound by lawyer’s agreement because lawyer did not have actual authority or apparent authority. Client does not create apparent authority for his attorney to settle case merely by retaining attorney. A lawyer shall abide by a client’s decision whether to settle a matter.4 COMMUNICATION (a) A lawyer shall: (1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent. Some local rules will require you to have power Type of Authority Authority Implied Authority (still “authority”) Apparent authority Created by Assent of client. In a criminal case. Reputation in context of Apparent Authority Fennell v TLB Rule: In order to create apparent authority. manifested to lawyer Implication from assent of client. Restatement 3rd does away with it.0(e).com (a) Subject to paragraphs (c) and (d). the principal myst manifest to a third party that he consents to have the act done on his behalf by the person purporting to act for him. Lawyer cannot create his own apparent authority. Here the agreement violated the rules but he the lawyers conduct did not. manifested to lawyer Manifestation by client to third party that lawyer has authority Grants power to Alter client’s legal rights and obligations within bounds of client assent Do things necessary to carry out client instruction Alter client’s legal rights and obligations within bounds of 5 . A lawyer may take such action on behalf of the client as impliedly authorized to carry out the representation. and (5) Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. the lawyer shall abide by the client’s decision. after consultation with the lawyer.Downloaded From OutlineDepot. a lawyer shall abide by a client’s decisions concerning the objectives of representation and. whether to waive jury trial and whether the client will testify.4.
Attorney must not stipulate to a matter that would eleminate an essential defense .Attorney must be specifically authorized to settle and compromise a claim .com Inherent agency power (where recognized) Appearance in court proceeding manifestation Alter client’s rights and obligations as needed to enforce result of proceeding Kivol v. the lawyer shall. MR 1. as far as reasonably possible. whether because of minority.Attorney has no apparent authority to bind clien to agreement for arbitration Holding: Client was not bound by lawyer’s agreement to binding arbitration because he did not have apparent authority to do so – arbitration involves “ends” and therefore that decision rests with the client. task of words is to change context Blanton v Womancare Rule: Attorney is not authorized merely by virtue of retention to impair the client’s substantial right or the cause of action itself .) Holding: No actual or apparent authority existed here. mental impairment. Client has right to redress against attorney Note: Efficiency concern – a rule that did not enable an attorney to bind a client to in court action would impeded the efficient and finality of courtroom proceedings and permit stop and go disruption of the court’s calendar. financial or other harm unless action is taken and 6 .2(c) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. Olfe v Gordon MR 1.Attorney is without authority to waive findings so that no appeal can be made.14 CLIENT WITH DIMINISHED CAPACITY (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished.Downloaded From OutlineDepot. Important: Must disclaim authority to bind the client disclaimer of performative utterance. . an attorney has the inherent power to settle a claim when the attorney attends a settlement procedure governed by the ADR rules – protects third party because the principal puts the attorney in a position to trust and should therefore bear the loss. maintain a normal client-lawyer relationship with the client (b) When the lawyer reasonably believes that the client has diminished capacity. or for some other reason. however inherent authority did. Simon Television Rule: In the absence of a communication of lack of authority by the attorney. is at risk of substantial physical. Retention of attorney confers inherent power on attorney to bind the client to in-court proceedings (No apparent authority.
6. maintain a normal client-lawyer relationship with the client and act in the best interests of the client as stated in subsection (2) (2) A lawyer representing a client with diminished capacity as described by Subsection (1) and for whom no guardian or other representative is available to act. conservator or guardian. determined as stated in subsection (2) Arko v. or other cause. even if the client expresses no wishes or gives contrary instructions.com cannot adequately act in the client’s own interest.Downloaded From OutlineDepot.14 – tells you what to do if you have a client you believe their capacity is diminished for some reason. mental disability. the client’s lawyer must treat that person as entitled to act with respect to the client’s interests in the matter. the lawyer shall maintain as far as possible a normal relationship with the client You may take reasonably necessary protective actions It tells you that you can disclose information about the client reasonable necessary to protect the client’s interest.1 MERITORIOUS CLAIMS AND CONTENTIONS 7 . physical illness. with respect to a matter within the scope of the representation. pursue the lawyer’s reasonable view of the client’s objectives or interests as the client would define them if able to make adequately considered decisions on the matter. unless: a. the lawyer may take reasonably necessary protective action. CA doesn’t have anything like that MR 3. People Rule: Decision whether to request jury instructions on lesser offenses is a tactical decision that rests with defense counsel after consultation with the defendant. whether because of minority. including consulting with individuals or entities that have the ability to take action to protect the client and. seeking the appointment of a guardian ad litem. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1. Holding: Decision is for lawyer.6(a) to reveal information about the client. but only to the extent reasonably necessary to protect the client’s interests. (4) A lawyer representing a client with diminished capacity as described in Subsection (1) may seek the appointment of a guardian or take other protective action within the scope of the representation when doing so is practical and will advance the client’s objectives or interests. Client’s conviction reversed. or b. as far as reasonably possible. the lawyer must. The lawyer represents the client in a matter against the interests of that person. USA v Theodore Kaczynksi Holding: Lawyers can use insanity defense over the objection of defendant in criminal case. MR 1. must. When taking protective action pursuant to paragraph (b). the lawyer is impliedly authorized under Rule1. §24 A CLIENT WITH DIMINISHED CAPACITY (1) When a client’s capacity to make adequately considered decisions in connection with the representation is diminished. in appropriate cases. (3) If a client with diminished capacity as described in Subsection (1) has a guardian or other person legally entitled to act for the client. That person instructs the lawyer to act in a matter that the lawyer knows will violate the person’s legal duties toward the client. case remanded to trial court for new trial where jury will receive lesser non-included offense instruction (D still retains trial rights and decisions of what jury instruction to request requires skill.
or offer an inducement to a witness that is prohibited by law (c) Knowingly disobey an obligation under the rules of a tribunal. modification or reversal of existing law. (e) In trial. and 2.com A lawyer shall not bring or defend a proceeding. MR 3. the person is a relative or an employee or other agent of a client. except for an open refusal based on an assertion that no valid obligation exists (d) In pretrial procedure. the culpability of a civil litigant or the guilt or innocence of an accused. or the respondent in a proceeding that could result in incarceration. the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information Unbundling Agreement between lawyer and client where lawyer will provide some (but not all) service necessary to resolve the client’s problem • Authorized by MR 1.2 EXPEDITING LITIGATION A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.6 CONFIDENTIALITY OF INFORMATION 8 . or state a personal opinion as to the justness of a cause. MR 3. make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party. A lawyer for the defendant in a criminal proceeding. practical implications of the agreement (may even need to advise as to matters not handling) • Some unbundling may be impermissible either as a matter of disciplinary rules or tort law • Must perform competently the slice of the representation you undertook (still owe duties to client) o This is a way for clients to afford some legal services where they could not otherwise afford any Way to allocate authority through compartmentalization DUTY OF CONFIDENTIALITY MR 1.Downloaded From OutlineDepot. destroy. assert personal knowledge of facts in issue except when testifying as a witness. unless there is a basis in law and fact for doing so that is not frivolous. (b) Falsify evidence.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not (a) Unlawfully obstruct another party’s access to evidence or unlawfully alter. allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. counsel or assist a witness to testify falsely. what lawyer won’t do.2 IF limitation is reasonable and client gives informed consent Lawyers who limit scope of representation must make sure the client understands: what lawyers will do. or (f) Request a person other than a client to refrain from voluntarily giving relevant information to the other party unless 1. A lawyer shall not counsel or assist another person to do such act. the credibility of a witness. or assert or controvert an issue therein. may nevertheless so defend the proceeding as to require that every element of the case be established. which includes a good faith argument for an extension. or conceal a document or other material having potential evidentiary value.
§63 USING OR DISCLOSING INFORMATION WHEN REQUIRED BY LAW 9 .com (a) a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. other than information that is generally known. The lawyer may not use or disclose confidential client information as defined in §59 if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to make use or disclose such information b. a lawyer who uses confidential information of a client for the lawyer’s pecuniary gain or other than in the practice of law must account to the client for any profits made. the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b) (b) a lawyer may reveal information relating to the representation of a client to the extent the lawyer believes necessary: (1) to prevent reasonably certain death or substantial bodily harm (2) to prevent the client 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 the client has used or is using the lawyer’s services (3) to prevent. or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services (4) to secure legal advice about the lawyer’s compliance with these rules (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.Downloaded From OutlineDepot. §60 A LAWYER’S DUTY TO SAFEGUARD CONFIDENTIAL CLIENT INFORMATION (1) Except as provided in §61-67. §61 USING OR DISCLOSING INFORMATION TO ADVANCE CLIENT’S INTERESTS A lawyer may use or disclose confidential client information when the lawyer reasonably believes that doing so will advance the interests of the client in the representation. or (6) to comply with other law or a court order. §62 USING OR DISCLOSING INFORMATION WITH CLIENT CONSENT A lawyer may use or disclose confidential client information when the client consents after being adequately informed concerning the use or disclosure. mitigate. §59 DEFINITION OF CONFIDENTIAL CLIENT INFORMATION Confidential client information consists of information relating to representation of a client. The lawyer must take steps reasonable in the circumstances to protect confidential client information against impermissible use or disclosure by the lawyer’s associates or agents that may adversely affect a material interest of the client or otherwise than as instructed by the client (2) except as stated in §62. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved. during and after representation of a client: a.
or mitigate the loss. and d. rectify. make a good-faith effort to persuade the client not to act. rectify or mitigate the loss. if feasible. §65 USING OR DISCLOSING INFORMATION IN A COMPENSATION DISPUTE A lawyer may use or disclose confidential client information when and to the extent that the lawyer reasonably believes necessary to permit the lawyer to resolve a dispute with the client concerning compensation or reimbursement that the lawyer reasonably claims the client owes the lawyer. also advise the client of the lawyer’s ability to use or disclose information as provided in this section and the consequences thereof. §67 USING OR DISCLOSING INFORMATION TO PREVENT. 10 . if feasible. The lawyer’s client intends to commit the crime or fraud either personally or through a third person. subject to professional discipline. after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure. The loss has not yet occurred c.Downloaded From OutlineDepot. The lawyer must. (2) If a crime or fraud described in Subsection (1) has already occurred. make a good-faith effort to persuade the client not to act. the lawyer must. OR MITIGATE SUBSTANTIAL FINANCIAL LOSS (1) A lawyer may use or disclose confidential client information when the lawyer reasonably believes that its use or disclosure is necessary to prevent a crime or fraud. if feasible. the lawyer must. The client has employed or is employing the lawyer’s services in the matter in which the crime or fraud is committed. The crime or fraud threatens substantial financial loss b. advise the client to warn the victim or to take other action to prevent the harm and advise the client of the lawyer’s ability to use or disclose information as provided in this section and the consequences thereof. §64 USING OR DISCLOSING INFORMATION IN A LAWYER’S SELF-DEFENSE A lawyer may use or disclose confidential client information when and to the extent that the lawyer reasonably believes necessary to defend the lawyer or the lawyer’s associate or agent against a charge or threatened charge by any person that the lawyer or such associate or agent acted wrongfully in the course of representing a client. §66 USING OR DISCLOSING INFORMATION TO PREVENT DEATH (1) A lawyer may use or disclose confidential client information when the lawyer reasonably believes that its use or disclosure is necessary to prevent certain death or serious bodily harm to a person (2) Before using or disclosing information under this section. solely by reason of such action or inaction. if feasible.com A lawyer may use or disclose confidential client information when required by law. or barred from recovery against a client or third person. RECTIFY. (3) A lawyer who takes action or decides not to take action permitted under this section is not. If the client or another person has already acted. if feasible. a lawyer may use or disclose confidential client information when the lawyer reasonably believes its use or disclosure is necessary to prevent. If the client or another person has already acted. and a. the lawyer must. the lawyer must. advise the client to warn the victim or to take another action to prevent. liable for damages to the lawyer’s client or any third person. (3) Before using or disclosing information under this section.
Here lawyer violated the rule because he made reference to information learned from the client. applies only in situations where rules of evidence apply. subject to professional discipline.Downloaded From OutlineDepot.6(a). Holding: Rule prohibiting lawyer from representing later client whose interests are directly adverse to former client in same/substantially related matter do not prohibit lawyer from engaging in pro se activities that are adverse to client. Duty of confidentiality does not actually exist as such but lawyers treat it as though it does 1) it is not the attorney-client privilege. O’Hagan – tampering with client funds Disclosure of Client Info for Personal Benefit . 1. controlled by client MR 1.6 – flag this in your rules – says a lawyer shall not reveal information relating to the client unless they have given informed consent or permitted by (b) B&P 6068 (e) – Duty of attorney to maintain confidence at every peril to his self or herself Duty of Confidentiality Distinguished from Attorney Client Privilege Brennan’s v Brennan’s Use of Client info for Personal Benefit Welch v E&T . or barred from recovery against a client or third person. the duty of confidentiality restrains what otherwise would be voluntary disclosures and the privilege is asserted to lawyers can’t be compelled to say things the client doesn’t want them to say.1(a). D was to refrain from acquiring a pecuniary interest involving collection work for these trust funds unless they first notified and obtained informed consent of P.com (4) A lawyer who takes action or decides not to take action permitted under this section is not. Disclosure of Client Info NOT for Personal Benefit In Re Pressly 11 . liable for damages to the lawyer’s client or any third person. 4. Duty to protect confidential information continues even after formal relationship ends Holding: Due to the pre-existing attorney-client relationship during which D obtained confidential information about P’s business. it is a rule of evidence that allows you to refuse to offer testimony. . scope of privilege is communications between attorney and client.breach of fiduciary duty Rule: Attorney may not at any time use against his former client knowledge or information acquired by virtue of the previous relationship.9(c) Woods Rule: Lawyer may use information from a former client if that information has becomes generally known.MR 1. it is a duty you owe by virtue of being a lawyer at all times and all places 2) you may not use or disclose information that is not generally known which you learn in the course and scope of representing a client 3) 2 prohibitions: USE and DISCLOSURE 4) Attorney-client privilege is not a duty. solely by reason of such action or inaction. that was not generally known. to oppose client. significantly narrower 5) Generally speaking.
com Rule: Lawyer may not disclose client confidences without current client’s consent.Lawyer shall not reveal information relating to the representation of a client unless authorized by client or necessary to carry out representation . even to opposing counsel . illegal.MR 4. Holding: Attorney client relationship existed at time P gave consent to Ds and Ds owed at least fiduciary duty not to misrepresent to P that his conversations with them were confidential.13(f)-(g) o You represent the entity and not its members Perez v. Comment 10 12 . Duty to inform clients of material facts .6. or fraudulent act in furtherance of which the lawyer’s services had been used. Holding: Firm may disclose existence of husband’s illegitimate child to wife (but does not have to) Real lesson – don’t get in this situation .MR 1.Use or disclosure authorized by implication can present tricky problems.Lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision regarding the representations . When in doubt. the safer course is to get explicit client consent to the action you wish to take. K&C . Attorney fiduciary responsibilities may arise even during preliminary consultations regarding the attorney’s possible retention if the attorney enters into discussion of the client’s legal problems with a view toward undertaking representation.don’t make typos .get the all over waiver signed up front .deal with the fact that mistakes happen Entity Representation and Entity Constituents . Confidentiality with Multiple Clients AvB Rule: Duty of Confidentiality v.Negligent disclosure of information is still disclosure Holding: Lawyer deserves to be publicly reprimanded because he knew he was violating disciplinary rule even if he did not do so with knowledge of all possible consequences.1 says you can’t lie to opposing counsel . Franklin . His actions caused client distress and could have hurt litigation. Disclosure Authorized by Implication .EXCEPTION: A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to rectify the consequences of a client’s criminal.It is the Lawyers job to clarify to entity members that he represents the entity itself and not them Rule: Confidential information received during the course of any fiduciary relationship may not be used or disclosed to the detriment of the one from whom the information is obtained. EXCEPTIONS TO CONFIDENTIALITY RULE – when it is ok to breach MR 1.Downloaded From OutlineDepot.§61 as long as following with §21(3) and §20 Adams v.
of course. Lawyer Self-Defense . where a proceeding has been commenced. It’s a may. Thompson Rule: Guiding rule for purposes of exception for preventing criminal acts is objective reasonableness in light of the surrounding circumstances. 13 .To show the bad guy a misaddressed envelope is to breach the duty of confidentiality .give the address and dump it on your partner that represents the bad guy . he ends up figuring it out.So what do you do? .Bad guy wants to know where the guy lived who was a witness from a lawyer.call the cops and say I think they’re going to go kill x will you go protect x o don’t have to disclose your client is going to commit a crime. The right to defend also applies. criminal. The lawyer’s right to respond arises when an assertion of such complicity has been made. Such a charge can arise in a civil. he did nothing wrong in not calling the cops . so that the defense may be established by responding directly to a third party who has made such an assertion. to prevent reasonably certain death or substantial bodily harm McClure v. goes and kills a guy . there’s no discipline for not calling the cops. and circumstances depend on information supplied by D Holding: Mecca made the disclosure reasonably believing it was necessary to prevent the client from committing a criminal act (death) – Mecca therefore did not violate the duty of confidentiality in a manner that rendered his assistance as counsel constitutionally ineffective In Re Goebel .MR 1. the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity.Lawyer does not have to wait until proceeding to use exception o As soon as accused he may defend himself by violating confidentiality .Downloaded From OutlineDepot.com Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client. The same is true with respect to a claim involving the conduct or representation of a former client.6(b)(1) o Allows but does not require disclosure.6 (CMT 10) First Federal Savings v Oppenheim .Even though he kills the client’s husband. a person claiming to have been defrauded by the lawyer and client acting together. for example. disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person. another question we don’t know is what is in the binder – Privilege is a shield not a sword.MR 1.The issue in this case is not whether it adequately triggers the self defense exception but what it means to use the exception . cannot be made into a sword mechanism of selective disclosure Physical and Economic Harm . shows a missed address envelope.Not known to bad guy is not the same as not generally known .DISCLOSE ONLY AS MUCH INFO AS YOU NEED TO PROVE INNOCENCE Meyerhofer is the mother of all Self-Defense cases – not a great case for the exception because the original disclosure wasn’t made to an allegation so it doesn’t fit the elements for the exception.
§71 ATTORNEY-CLIENT PRIVILEGE – “IN CONFIDENCE” A communication is in confidence within the meaning of §68 if. other people who act on behalf on the entity) is o Beaching a duty to the entity or breaking the law in a way attributable to the entity. and agents of the lawyer who facilitate the representation.13©(2) ATTORNEY-CLIENT PRIVILEGE §68 ATTORNEY-CLIENT PRIVILEGE Except as otherwise provided in this Restatement. directors. and (2) whom the client or prospective client consults for the purpose of obtaining legal assistance §77 DURATION OF PRIVILEGE 14 . undertakes to convey information to another privileged person and any document or other record revealing such an expression. an attorney-client privilege may be invoked as provided in §86 with respect to: (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client §69 ATTORNEY-CLIENT PRIVILEGE – “COMMUNICATION” A communication within the meaning of §68 is any expression through which a privileged person. and o The conduct is related to your representation. and o Threatens substantial harm to the entity. then o You MUST act in the best interest of the entity and not the constituent .MR 1.If you know a constituent (officers. the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person as defined in §70 or another person with whom communications are protected under a similar privilege. the client’s lawyer. at the time and in the circumstances of the communication. §72 ATTORNEY-CLIENT PRIVILEGE – LEGAL ASSISTANCE AS THE OBJECT OF A PRIVLEGED COMMUNICATION A communication is made for the purpose of obtaining or providing legal assistance within the meaning of §68 if it is made to or to assist a person (1) who is a lawyer or who the client or prospective client reasonably believes to be a lawyer.13(c)(2) .Downloaded From OutlineDepot. §70 ATTORNEY-CLIENT PRIVILEGE – “PRIVILEGED PERSONS” Privileged persons within the meaning of §68 are the client (including a prospective client). as defined in §70. agents of either who facilitate communications between them.This means you should report it to the higher up official of the entity and if they don’t do anything then you can reveal confidences of constitutents under MR 1.com Protecting an Entity Client .
partnership. sole proprietorship.com Unless waived (§78-80) or subject to exception (§81-85).Downloaded From OutlineDepot. or other for-profit or not-for-profit organization. claimed and b. Has authorized the lawyer or agent to waive it. a personal representative of an incompetent or deceased client. and (4) is disclosed only to a. and b. Notwithstanding failure to invoke the privilege as specified in Subsections (1)(a) and (1)(b). other agents of the organization who reasonably need to know of the communication in order to act for the organization. either personally or through counsel or another authorized agent b. the attorney-client privilege may be invoked as provided in §86 at any time during or after termination of the relationship between client or prospective client and lawyer. without the presence of strangers c. the tribunal has discretion to invoke the privilege (2) A person invoking a privilege must ordinarily object contemporaneously to an attempt to disclose the communication and. c. demonstrate each element of the privilege under §68. an agent of the lawyer. trust. not waived by the client §73 THE PRIVILEGE FOR AN ORGAINIZATIONAL CLIENT When a client is a corporation. A client. or an agent of a client from whom a privileged communication is sought must invoke the privilege when doing so appears reasonably appropriate. §86 INVOKING THE PRIVILEGE AND ITS EXCEPTIONS (1) When an attempt is made to introduce in evidence or obtain discovery of a communication privileged under §68: a. unless the client i. A lawyer. unincorporated association. is a member of the bar of a court. or a person succeeding to the interest of a client may invoke or waive the privilege. legal services or iii. estate. or ii. the attorney-client privilege extends to a communication that: (1) otherwise qualifies as privileged under §68-72 (2) is between an agent of the organization and a privileged person as defined in §70 (3) concerns a legal matter of interest to the organization. if the objection is contested. Traditional elements of attorney client privilege: 1) the asserted holder of the privilege is or sought to become a client 2) the person to whom the communication was made a. and b. by his client b. if the assertion is contested. in connection with this communication is acting as a lawyer 3) the communication relates to a fact of which the attorney was informed a. or his or her subordinate. privileged persons as defined in §70. and d. assistance in some legal proceeding. not for the purpose of committing a crime or tort 4) the privilege has been a. demonstrate each element of the waiver or exception. an opinion of law or ii. for the purpose of securing primarily either i. 15 . (3) A person invoking a waiver of or exception to the privilege (§78-85) must assert it and. Has waived the privilege.
if warranted by the circumstances. and that is likely to result in substantial injury to the organization.7. then the lawyer shall proceed as reasonably necessary in the best interest of the organization. employee or other person associated with the organization is engaged in action. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions take pursuant to Paragraphs (b) or (c). officers. (f) In dealing with an organization’s directors.13(a) – when you are retained by an entity you represent the entity itself. If the organization’s consent to the dual representation is required by Rule 1. but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization (d) Paragraph (c) shall not apply with respect to information relating to a lawyer’s representation by an organization to investigate an alleged violation of law. subject to the provisions of Rule 1.7. the privilege is not to whom you are speaking but to the entity 1. a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. employees. Insofar as privilege is concerned. then the lawyer may reveal information relating to the representation whether or not Rule 1. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so. that is clearly a violation of law. or by the shareholders.com Attorney-Client privilege in connection with entity clients 2 rules – MR 1. (g) A lawyer representing an organization may also represent any of its directors. the consent shall be given by an appropriate official of the organization other than the individual who is represented. officers. directors. you don’t represent the employers. the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action. to the highest authority that can act on behalf of the organization as determined by applicable law. members. or to defend the organization or an officer. (b) If a lawyer for an organization knows that an officer. pays you and has the power to fire you is NOT your client. you don’t represent the directors. employees.6 permits such disclosure. or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs.13(f) In dealing with officers. constituents. The entity is. The person that hires you. (c) Except as provided in paragraph d 1) despite the lawyer’s efforts in accordance with paragraph (b).13 ORGANIZATION AS CLIENT (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. 16 . or a refusal to act. shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal. the lawyer shall refer the matter to higher authority in the organization. employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. you don’t represent the officers.Downloaded From OutlineDepot. shareholders or other constituents. a lawyer shall explain the identity of the client to them so they are aware MR 1. shareholders or other constituents. including. intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization. and 2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. members.
When filing a form for receiving cash payment in excess of 10k attorney did not put payors name and claimed he didn’t have to because of ACP . the topic is not off limits just because the lawyers played a role. A fact is one thing and a communication concerning a fact is an entirely different thing. Privilege encompasses only those confidential communications necessary to obtaining legal advice Holding: Lefcourt had no reasonable basis for failing to provide information required by IRS statute – incrimination rationale not a valid reason to invoke APC In Confidence . Between an Attorney and a Client US v. Because discussions occurred in the presence of third party (wife). there is a substantial relationship between the current and former representations. and presence of accountant was necessary to permit effective consultation between lawyer and client where purpose was to obtain lawyer’s (not accountant’s) legal advice Relating to Legal Advice Neuder v.The primary purpose of the communication must be to obtain legal assistance or advice and that must predominate other aspects of the communication.com Communications. IF what is sought is not legal advice but only accounting service . Wife was non-client. or if the advice sought is the accountant’s rather than the lawyer’s. LK Rule: What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.The privilege does not extend to facts communicated. interests are materially adverse. no further Holding: Since questions about the adequacy of a search do not entail legal advice. Entities and Privilege Techni-Plex .§79 Minnesota v TDR Rule: APC does not apply to confidences given in the presence of third parties Holding: Rhodes was the sole client. no privilege exists.Downloaded From OutlineDepot. such as business advice Feldberg Rule: Privilege extends to the extent it facilitates the candor necessary to obtain legal advice. stating this was a fact and not a communication.So a client may have to disclose facts told to an attorney but not the discussion about those facts Lefcourt v. Rule: Client identification and fee information are not privileged. Holding: Accountant could claim APC because accounting concepts are foreign to lawyers. NOT Facts UpJohn . the APC has been waived.Holding: Disqualification upheld: New Tekni Plex is a “former client” of M&L.Court did not agree.. USA . Battelle Lab . . o New Tekni-Plex is without authority to assert the attorney-client privilege to preclude M&L from revealing to Tang the contents of the communications conveyed by old 17 .
VS. individual must show . of obtaining assistance to engage in a crime or fraud aiding a third person to do so. if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. When the lawyer knows or reasonably know that the unrepresented person misunderstands the lawyer’s role in the matter. later accomplished. - In re Grand Jury Subpoena Rule: Joint defense agreement does not increase the # of parties whose consent is needed to waive the APC. of obtaining assistance to engage in a crime or fraud or to aid a third person to do so or uses the materials for such a purpose Does not include a client confession after they’ve committed a crime and come to you for representation 18 .they approached lawyer to seek advice . and . Rule: Where efforts made to run the pre-existing business entity and manage its affairs. though individual issues related to corporate ones can be privileged MR 4. Crime/Fraud exception §82 CLIENT CRIME OR FRAUD The privilege does not apply to a communication occurring when a client (a) consults a lawyer for the purpose.3 DEALING WITH UNREPRESENTED PERSON In dealing on behalf of a client with a person who is not represented by counsel. other than the advice to secure legal counsel. the lawyer shall make reasonable efforts to correct the misunderstanding.Such communications were confidential.Lawyer communicated with them in their personal capacity . successor management stands in the shoes of prior management and controls the attorney-client privilege with respect to matters concerning the company’s operations. later accomplished.Individual claims of privilege fail because the oral joint defense agreement that they rely on cannot defeat OldCo’s express waiver of privilege. despite the existence of an indivicual APC relationship between him and the corporations counsel. uses the lawyer’s advice or other services to engage in or assist in crime or fraud §93 CLIENT CRIME OR FRAUD Work-product immunity does not apply to materials prepared when a client consults a lawyer for the purpose. it merely prevents disclosure of communication made in the course of preparing a joint defense by the third party to whom it was made.Did not concern corporate issues. .They made it clear they sought advice in their personal capacity . The lawyer shall not give legal advice to an unrepresented person. . a lawyer shall not state or imply that the lawyer is disinterested. The mere transfer of assets with no attempt to continue the pre-existing operation generally does not transfer the attorney client privilege.Downloaded From OutlineDepot. Manager’s interest must yield to the shareholder’s interest in disclosure of the privileged materials.A corporation may unilaterally waive the APC with respect to any communications made by a corporate officer in his corporate capacity. Holding: APC extends only to those communications that involved Roe and Moe’s individual rights and responsibilities arising out of their actions as officer of the corporation. 5 factor test.com Tekni-Plex concerning the merger transaction—New Tekni Plex also does not control M&L’s files relating to its prior representation of old Tekni-Plex during the acquisition. or (b) regardless of the client’s purpose at the time of consultation.
another person reasonably relies on the disclaimer to that person’s detriment. or other authorized agent of the client: (1) agrees to waive the privilege (2) disclaims protection of the privilege and a. When you get out there is no joint client relationship and there are no communications subject to the joint client relationship exception Eureka . . JOINT CLIENTS §75 THE PRIVILEGE OF CO-CLIENTS (1) If two or more persons are jointly represented by the same lawyer in a matter.Clients are insured and insurer and they disagreed . they were discoverable in an action between the joint clients.” does not apply to matter known at the time of communication not to be in the common interest of the attorney’s two clients. DISCLAIMER.com In Re Sealed Case Rule: 2 requirements for waiver of crime/fraud privilege: . you should get out of the conflict. a communication described in Subsection (1) is not privileged as between the co-clients in a subsequent adverse proceeding between them.(2) Client must have carried out the crime/fraud Holding: Attorney client privilege not waived because it cannot be assumed that VP was acting on behalf of company when he decided to act illegally.Downloaded From OutlineDepot.” WAIVER §78 AGREEMENT.The court ruled that the policy behind the co-client privilege.(1) Client must have made or received privileged information with the intent to further an unlawful act.Insurer wanted access to documents claiming that because those communications were generated during the attorney’s joint representation of the parties on the claim against the insured. Cannot reasonably infer from the meeting that the company was consulting its general counsel with the intention of committing a crim. a communication of either co-client that otherwise qualifies as privileged under §68-72 and relates to matters of common interest is privileged as against third persons. maybe you can keep one of them or just walk out of the whole thing. §79 SUBSEQUENT DISCLOSURE 19 . . fails to object properly to an attempt by another person to give or exact testimony or other evidence of a privileged communication. unless it has been waived by the client who made the communication. or b. reasons of judicial administration require that the client not be permitted to revoke the disclaimer (3) in a proceeding before a tribunal. the client’s lawyer. “to encourage openness and cooperation between joint clients. (2) Unless the co-clients have agreed otherwise. OR FAILURE TO OBJECT The attorney-client privilege is waived if the client. and any coclient may invoke the privilege. IF a conflict develops between joint clients.
Mitsubishi Motors . say I got this document and it looks like it was privileged. or other authorized agent of the client voluntarily discloses the communication in a non-privileged communication. A lawyer’s assistance was ineffective.§§78-80 .(2) Balancing approach to render decision .Rule: Attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged. (2) The attorney-client privilege is waived for a recorded communication if a witness: a. you stop reading it.If disclosure amounts to a waiver then the party receiving the information may study and use the info without penalty . is this a screw up or did you decide to waive or what? Usually they will have a messenger waiting to retrieve it. then the lawyer who receives it may be disqualified from further involvement in the case if he studied the info Zerlene v. or b. If you think it was wrongly withheld you are then supposed to move to compel it to production and fight the privilege out waiver focuses on the holder of privilege. Once it becomes apparent that it is privileged. which is client client may waive expressly or by implication o express may be verbal or by conduct lawyer is client’s agent o acts of lawyer bind client o but not all of them note three different approaches (n. you call the person that sent it to you. . there is only one way to deal with it.(3) Focus on Intent No Matter what Approach is used the final determination of whether an assertion of the APC will be upheld in an inadvertent disclosure context depends upon whether the client either expressly or impliedly waived the privilege.(1) Strict responsibility – Client’s (and lawyer by agency theory) intent is irrelevant .MR 4. 20 . and the tribunal finds that the disclosure is required in the interests of justice Inadvertent Disclosure . Court will apply the reasonableness standard – what would reasonably competent counsel do.If disclosure does not amount to a waiver. negligent. Employs the communication to aid the witness while testifying.com The attorney-client privilege is waived if the client.4(b) State Compensation Insurance Fund v WPS If you get a document from an opposing party that looks like a privilege. you look at the document only long enough to ascertain to have reason to think its privileged. counsel must immediately notify opposing counsel and try to resolve the situation. 154) Burden on complaining lawyer to show inadvertence - 3 Approaches to Inadvertent Disclosure Problem . or otherwise wrongful.Downloaded From OutlineDepot. The client acted upon the advice of a lawyer or that the advice was otherwise relevant to the legal significance of the client’s conduct. Employed the communication in preparing to testify. or b. the client’s lawyer. §80 PUTTING ASSISTANCE OR A COMMUNICATION IN ISSUE (1) The attorney-client privilege is waived for any relevant communication if the client asserts as to a material issue in a proceeding that: a.
would have concluded the materials were privileged (Disqualification risk) Holding: Opposing counsel violated rule when he took advatage of inadvertently disclosed information.Disclosure of a privileged communication within the scope of some other privilege is not a waiver o Ex: Spousal privilege Common Interest Exception to Waiver = Prisoner’s Dillemma . (2) Unless the clients have agreed otherwise. unless it has been waived by the client who made the communication. a communication of any such client that otherwise qualifies as privileged under §68-72 that relates to the matter is privileged as against third persons.2 or more parties want to cooperate but are unwilling/unable to be represented as joint clients by a lawyer INTEREST EXCEPTION §76 THE PRIVILEGE IN COMMON-INTEREST ARRANGEMENTS (1) If two or more clients with a common interest in a litigated or nonlitigated matter are represented by separate lawyers and they agree to exchange information concerning the matter.Downloaded From OutlineDepot.com knowing the circumstances of litigation.Partial waiver permits a client who has disclosed a portion of the privileged communications to continue asserting the privilege as to the remaining portions of communications Disclosure Within Another Privileged Relationship . then acted unethically in making use of it DQ approapriate - Deliberate Disclosure Von Bulow – Book about Trial/Case Rule: The client’s offer of his own or the attorney’s testimony as to a specific communication to the attorney is a waiver as to all other communications to the attorney on the same matter Holding: Extra-judicial disclosure of attorney-client communication does not waive the privilege as to undisclosed portions of the communication. Waiver occurred here to particular matters discussed in the book. a communication described in subsection (1) is not privileged as between clients described in subsection (1) in a subsequent adverse proceeding between them Common Interest Exception – An agreement among parties with a common legal interest to keep confidential communications among them with respect to that interest Exception is not a privilege.Selective waiver permits the client who has disclosed privileged communications to one party to continue asserting the privilege against other parties . there are a series of steps that have to occur: 1) the communication has to be privileged in the first place a. don’t let clients talk to other clients 21 . no common interest privilege For this to have any affect. but this waiver cannot be broadened to waiver of discussions that were not published Selective and Partial Waiver . Any such client may invoke the privilege.
Documents must fit either work product or attorney-client privilege Holding: JDA does not protect documents from disclosure. Sup Court Rule: Evidence code does not allow creation of new privileges. . Therefore it falls outside the arena of discover and the documents do not need to be produced.Each JDA submitted must explicitly state that it does not create an attorney-client relationship. The court must first conclude the information contained in the documents is protected from disclosure by attorney-client privilege or work product. Taylor Rule: General policy against invading lawyer’s privacy is so well recognized that burden rests on the one who would invade privacy to justify production. attorney uses judgment to select 2. Lawyer/Client may contract to create this additional duty. and must explicitly allow withdrawal upon notice Holding: Attorney who has client in JDA does NOT owe duty of loyalty to all defendants in JDA. prevent Crime-fraud. self-defense. through subpoena or court order Holding: This is an attempt without necessity to secure written statements prepared by adverse counsel in the course of legal duty. The Basic Doctrine • Sources of information attorney has acquired from factual investigations including inquiries. not settled. client 1 talks to lawyer 1 who talks to lawyer 2 who talks to client 2 c. Oxy v. but an exception that there was no waiver occurred there USA v. Opinion Work Product Upjohn 22 . self-defense death/GBI Hickman v. can lawyer 1 talk to client 2? We don’t know. Then court must determine whether disclosures are reasonably necessary to accomplish purpose for which the parties consulted attorneys. other work representation done on behalf of client in preparation for litigation CONTROLLED Client Lawyer BY EXCEPTIONS Crime-fraud. WORK PRODUCT DOCTRINE A.com b. with provisions conditionally waiving confidentiality. and witness selection have work-product like quality o Ex: 400 witnesses available to interview.Downloaded From OutlineDepot. Stepney Rule: DQ is proper where a party seeking DQ can show that an attorney for another defendant actually obtained relevant confidential information through a joint defense agreement. that selection is protected by work-product doctrine Selection on front end is work product Selection of certain types of documents to examine also work product • Distinguish: underlying facts on document attorney reviews not protected o Work product does protect what comes out on the other side after attorney reviews those documents Attorney-Client Privilege Work-Product Doctrine PROTECTS Confidential communications relating to Mental impressions of counsel. Ordinary v. one case in 3rd circuit says that it is not within the scope of the exception Normally would be a waiver when L1 talks to L2. interviews.
com Rule: Where relevant and non-privileged facts remain hidden in attorney’s file and where production of those facts is essential to the preparation of one’s case.Downloaded From OutlineDepot. Competent representation requires the legal knowledge. and analyses concerning litigation REQUIREMENTS OF AND RELATING TO THE DUTY OF CARE MR 1. while retaining the authority to protect against disclosure of the mental impressions. discovery may be properly had. and (5) Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. as defined in Rule 1. conclusions. Court can order production for which litigant makes adequate showing and focus its attention of whether the document or any potion of it should be disclosed. MR 1. thoroughness and preparation reasonably necessary for the representation.4 COMMUNICATION (a) A lawyer shall: (1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent.2(c) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent MR 1.0(e) is required by these rules (2) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished (3) Keep the client reasonably informed about the status of the matter (4) Promptly comply with reasonable requests for information. skill.3 DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client MR 1. opinions. Holding: A far stronger showing of necessity and unavailability by other means would be necessary to compel disclosure Prepared in Anticipation of Litigation Requirement US v.1 COMPETENCE A lawyer shall provide competent representation to a client. Production may also be justified where witnesses are no longer available or can only be reached with difficulty. §16 A LAWYER’S DUTIES TO A CLIENT – IN GENERAL 23 . strategies. analyzing the outcome of that litigation does not lose protection because it was prepared to assist with a business decision Holding: Document at issue does not need to be disclosed. Aldman Rule: Where a document is created because of the prospect of litigation. Court shall protect against disclosure of mental impressions. or legal theories of an attorney or other representative.
unless the lawyer has a defense within the meaning of §54. unless the lawyer has a defense within the meaning of §54. Does not give rise to an implied cause of action for professional negligence or breach of fiduciary duty b. §50 DUTY OF CARE TO A CLIENT For purposes of liability under §48. if the lawyer fails to exercise care within the meaning of §52 and if that failure is a legal cause of injury within the meaning of §53. (2) Proof of a violation of a rule or statute regulating the conduct of lawyers: a. a lawyer must. a lawyer is civilly liable for professional negligence to a person to whom the lawyer owes a duty of care within the meaning of §50 or §51. and c. §49 BREACH OF FIDUCIARY DUTY – GENERALLY In addition to the other possible bases of civil liability described in §48. May be considered by a trier of fact as an aid in understanding and applying the standard of subsection (1) or §49 to the extent that (i) the rule or statute was 24 . in matters within the scope of the representation: (5) proceed in a manner reasonably calculated to advance a client’s lawful objectives. a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances. (6) act with reasonable competence and diligence (7) comply with obligations concerning the client’s confidences and property. 55. 50 and 56. as defined by the client after consultation. deal honestly with the client.Downloaded From OutlineDepot. Does not preclude other proof concerning the duty of care in subsection (1) or the fiduciary duty. §52 THE STANDARD OF CARE (1) For purposes of liability under §48 and 49. and (8) fulfill valid contractual obligations to the client §20 LAWYER’S DUTY TO INFORM AND CONSULT WITH A CLIENT (1) a lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by a lawyer under §21-23 (2) a lawyer must promptly comply with a client’s reasonable requests for information (3) a lawyer must notify a client of decisions to be made by the client under §21-23 and must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation §48 PROFESSIONAL NEGLIGENCE – ELEMENTS AND DEFENSES GENERALLY In addition to the other possible bases of civil liability described in §49. a lawyer owes a client the duty to exercise care within the meaning of §52 in pursuing the client’s lawful objectives in matters covered by the representation. a lawyer is civilly liable to a client of the lawyer breaches a fiduciary duty to the client set forth in §16(3) and if that failure is a legal cause of injury within the meaning of §53. and 56. avoid impermissible conflicting interests.com To the extent consent with the lawyer’s other legal duties and subject to the other provisions of this restatement. and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client.
48-49. Competent representation requires the legal knowledge. A lawyer is not liable under §48 or 49 for any action or inaction the lawyer reasonably believed to be required by law. and preparation reasonably necessary for the representation 25 . or b.4 .2©. §55 CIVIL REMEDIES OF A CLIENT OTHER THAN MALPRACTICE (1) A lawyer is subject to liability to a client for injury caused by breach of contract in the circumstances and to the extent provided by contract law. as determined under generally applicable principles of causation and damages §54 DEFENSES.MR 1.1-1. and (ii) the settlement was not fair and reasonable to the client or former client (4) For purposes of professional discipline. thoroughness. 20.com designed for the protection of persons in the position of the claimant and (ii) proof of the content and construction of such a rule or statute is relevant to the claimants claim. Settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate for connection therewith. injunctive. a lawyer is subject to liability to a client or nonclient when a nonlawyer would be in similar circumstances Civil Malpractice . 50-56 Beverly Hills v. (2) A client is entitled to restitutionary.3-1. The client or former client was subjected to improper pressure by the lawyer in reaching the settlement or b.Downloaded From OutlineDepot. a lawyer may not: a. §56 LIABILITY TO A CLIENT OR NONCLIENT UNDER GENERAL LAW Except as provided in §57 and in addition to liability under §48-55. skill. or declaratory remedies against a lawyer in the circumstances and to the extent provided by generally applicable law governing such remedies. (i) the client or former client was not independently represented in negotiating the settlement. PROSPECTIVE LIABILITY WAIVER. SETTLEMENT WITH A CLIENT (1) Except as otherwise provided in this section. §53 CAUSATION AND DAMAGES A lawyer is liable under §48 or 49 only if the lawyer’s breach of a duty of care or breach of fiduciary duty was a legal cause of injury. 1. (2) An agreement prospectively limiting a lawyer’s liability to a client for malpractice is unenforceable (3) The client or former client may rescind an agreement settling a claim by the client or former client against the person’s lawyer if: a. SSRK – Junior lawyers Rule: A lawyer shall provide competent representation to a client. Make an agreement prospectively limiting the lawyer’s liability to a client for malpractice.§§16. including a professional rule. liability under §48 and 49 is subject to the defenses available under generally applicable principles of law governing respectively actions for professional negligence and breach of fiduciary duty.
Lawyer must fess up to client if he makes mistake. in litigation that’s relatively straight forward. pick up phone. and call client.Causation in both litigation and transactional work requires both but for and proximate cause.4: Actual loss or damage resulting from professional negligence By accepting employment. Must blow whistle on himself. in the malpractice trial you put on the duty evidence and the breach evidence and you put on the causation case with a minitrail where you try the underlying matter within the malpractice suit Limitations and Tolling . When an injury occurs o 2. When a lawyer continues to represent a client Until the client suffers applicable harm as a consequence of the attorney’s negligence.com Holding: Junior lawyers are liable for malpractice if their passivity departs from the applicable standard of care Nichols v Keller Rule: Liability can exist when an attorney failed to provide advice. and diligence in the performance of the tasks he/she undertakes Holding: A lawyer who signs an application fro adjudication of a workers’ compensation claim and a lawyer who accepts a referral to prosecute the claim owe the claimant a duty of care to advise available remedies. including third-party actions (TORT) Causation and Damages Viner v. many years later May continue even after a client has replaced the attorney with another 26 . requires demonstrate but for wrongful act your client would have come out better.2: Breach of that duty . the longer the limitations period is tolled. skill. Varies from state to state CA: 1 year after P discovers (or would have discovered) the facts constituting the wrongful act/ omission.Limitations period for claims against lawyers – very short (1 year) o TOLLED during period while lawyer continues to represent client o Tactic: lawyer has duty to keep client informed under duty of care. the client cannot establish a cause of action for malpractice • Period is tolled from when lawyer commits act to when P sustains actual injury o Speculative injuries are those which do not yet exist • Continuous representation tolls the limitations period even if the client is aware of the act or omission at issue o Representation may be deemed continuous where a hiatus separates a completion of transaction on behalf of a client and resumption of legal activities after a problem arises. Sweet No such thing as breach of cause of action for breach of disciplinary rule .Downloaded From OutlineDepot. OR 4 years from the date of the wrongful act/omission.1: Duty of professional to use skill as other members of profession exercise .3: Causal connection between negligent conduct and resulting injury . attorney impliedly agrees to use ordinary judgment. whichever occurs first • 2 questions: o 1. not only when requested but also when failed to volunteer opinions when necessary to further the client’s objectives Elements of cause of action for PROFESSIONAL NEGLIGENCE . trial in a trial. MAY NOT double down! Longer lawyer continues to represent his client in an effort to fix his mistake. care.
Downloaded From OutlineDepot. manner of proof. availability of punitive damages How to establish claim: • Burden of proof: transactions voidable by client unless lawyer can demonstrate they are fair (differs from normal cases where P bears BOP) • Manner of proof: P must establish reasonable standard of care in relevant practice field and geographic area o Expert testimony used if standard not obvious to lay juror • Availability of punitive damages: o Malpractice: NO o Breach of fiduciary duty: YES Disloyal conduct= true fiduciary claim Fee discouragement – under the restatement you can be forced to give back to your client fees they’ve paid you on the ground that you have breached a serious duty to the client.com Failure to withdraw from representation will not. toll limitations period where facts otherwise indicate the representation has ended Representation ends when client has or reasonably should have no expectation that the attorney will provide further legal services • If attorney remains silent. it can be a remedy even if the client has not suffered any injury • Lawyer engaging in a clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer’s compensation for the matter o Relevant considerations: Gravity and timing of the violation Willfulness 27 . may be inferred from circumstances o Representation by one attorney does not toll claims that may exist with unaffiliated attorney When lawyer leaves firm and takes client. firm loses all ability to mitigate damage to the client Duty of loyalty would demand disclosure to inform client when he has legal malpractice action against you • Attorney who realizes she made mistake must immediately notify client of the mistake as well as the client’s right to obtain new counsel and sue the attorney for negligence • Attorney may not settle with client until attorney has informed client and has withdrawn from case Even core fiduciary duty claims are subject to the limitations period for malpractice Client may have3 claims: breach of K. malpractice. by itself. breach of fiduciary duty • Client will often plead same facts on each claim and seek same relief on each claim o Duty of care Malpractice claim o Duty of loyalty Breach of fiduciary duty claim Distinction may affect burden of proof. restatement § 37.
anytime you see one that bad. Nagelberg Rule: Actual Innocence Rule: A criminal defendant who files a malpractice claim against her criminal defense attorney must plead and prove that she was exonerated of the criminal conviction Holding: Overcharge for attorney’s fees not barred by actual innocence rule.Downloaded From OutlineDepot. you have a potential remedy of vacating your conviction and getting a new trial so we don’t need to give you a malpractice remedy . Strickland v Washington – ineffective assistance of counsel Question – what is effective counsel and how do we know if it was effective? Was the conduct outside of the wide range of reasonableness? If the conduct is not outside the wide range of reasonableness. you lose. lawyer cannot be held liable for malpractive for failing to get P acquitted if P of not actually innocent of crime accused. this comes up 28 . just look at the judgment call. counsel is effective If it is outside the wide range then you ask to see if the defendant can show prejudice – is there a “reasonable probability” that but for counsel’s unprofessional errors the result would have been different 2 conceptions of what trials are supposed to do – fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceedings (Fair Fight). standard principles of agency law hold that the lawyer must account to the client for the profits earned from the relevant conduct Breach of duty does NOT have to be intentional to warrant disgorgement Criminal Malpractice – different from civil . the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trail cannot be relied on as having produced a just result (Right Person) If you’ve done a full investigation.Actual innocence rule – if your counsel is ineffective. so excessive fee is one you can maintain even if you had been acquitted o Things like fees are not barred by actual innocence rule. However. unlikely to be held incompetent.The plaintiffs are not complaining the lawyer did a bad job but charged too much. if you’ve done a partial investigation and made a decision off of that then they’ll look more into it A decision in and of itself can be the basis of a Strickland reversal.com • • • • Effect on the value of the lawyer’s work for the client Any other threatened harm to the client Adequacy of other remedies Malpractice damages can be greater or smaller than the forfeited fees o Conduct constituting malpractice is not always the same as conduct warranting fee forfeiture Ex: lawyer’s negligent research is malpractice but would not warrant fee forfeiture Disgorgement less closely associated with loyalty violations o Jurisdictions disagree with whether client seeking disgorgement must show they were harmed by the breach of duty Think of disgorgement in relation to the facts of particular cases o In cases where lawyer deliberately advances self-interest either at the client’s expense or using the client’s information. things like malpractice are W&W v.
as stated in §15. and b. guardian. executor. a lawyer owes a duty to use care within the meaning of §52 in each of the following circumstances: (1) to a prospective client. too remote from the lawyer to be entitled to protection (3) to a nonclient when and to the extent that: a. under applicable tort law. (2) to a nonclient when and to the extent that: a. the lawyer’s client is a trustee. the lawyer knows that a client intends as one of the primary objectives of the representation that the lawyer’s services benefit the nonclient b. and the nonclient so relies. the lawyer knows that appropriate action by the lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach of a 29 . and c.Downloaded From OutlineDepot. or fiduciary acting primarily to perform similar functions for the nonclient b. the lawyer or (with the lawyer’s acquiescence) the lawyer’s client invites the nonclient to rely on the lawyer’s opinion or provision of other legal services. the nonclient is not. such a duty would not significantly impair the lawyer’s performance of obligations to the client. the absence of such a duty would make enforcement of those obligations to the client unlikely (4) to a non client when and to the extent that: a.com LIABILITY TO NON-CLIENTS §51 DUTY OF CARE TO CERTAIN NONCLIENTS For purposes of liability under §48.
and the publication has some relation to the proceeding (2) A lawyer representing a client in a civil proceeding or procuring the institution of criminal proceedings by a client is not liable to a non-client for wrongful use of civil proceedings or for malicious prosecution if the lawyer has probable cause for acting. such a duty would not significantly impair the performance of the lawyer’s obligations to the client. is not liable to a nonclient for interference with contract or with prospective contractual relations or with a legal relationship.Downloaded From OutlineDepot. a lawyer is subject to liability to a client or nonclient when a nonlawyer would be in similar circumstances §57 NONCLIENT CLAIMS – CERTAIN DEFENSES AND EXCEPTIONS TO LIABILITY (1) in addition to other absolute or conditional privileges. to enter or dissolve a legal relationship. §58 VICARIOUS LIABILITY (1) a law firm is subject to civil liability for injury legally caused to a person by any wrongful act or omission of any principal or employee of the firm who was acting in the ordinary course of the firm’s business or with actual or apparent authority (2) Each of the principals of a law firm organized as a general partnership without limited liability is liable jointly and severally with the firm (3) A principal of the law firm organized other than as a general partnership without limited liability as authorized by law is vicariously liable for the acts of another principal or employee of the firm to the extent provided by law. §56 LIABILITY TO A CLIENT OR NONCLIENT UNDER GENERAL LAW Except as provided in §57 and in addition to liability under §48-55. went to lawyer and lawyer signed up husband as client and said you have a malpractice claim. the publication occurs in communications preliminary to a reasonably anticipated proceeding before a tribunal or in the institution or during the course and as a part of such a proceeding b. later on another lawyer said that they might have a loss of consortium claim.Court held the lawyer was not allowed to keep the loss of consortium claim to himself even if he did not want to act on it he must inform the client and clients wife 30 .com fiduciary duty owed by the client to the nonclient. the nonclient is not reasonably able to protect its rights. the lawyer participates as counsel in that proceeding. or to enter or not enter a contractual relation. hospital went too slow with helping him.§51 Meighan v Shore – he had heart attack. and d. and c. the matter is published to a person who may be involved in the proceeding. where (i) the breach is a crime or fraud or (ii) the lawyer has assisted or is assisting the breach c. Duties To Parties Related to Client . a lawyer is absolutely privileged to publish matter concerning a nonclient if: a. . or if the lawyer acts primarily to help the client obtain a proper adjudication of the client’s claim in that proceeding (3) A lawyer who advises or assists a client to make or break a contract. if the lawyer acts to advance the client’s objectives without using wrongful means.
executors client owes fiduciary duty to third party (office of the trustee) you do not represent the person. there you were doing a partial job for them Triangular Duty Relationships: Arises when your representation of a client is related to your client’s relations with some third party in a way that recognizing a duty running from you to the third party advances the purpose of your representation. etc. Client’s status as one who acts on behalf of and for the benefit of a third party a. Ex: opinion letter opinion letter unambiguously creates duties because lawyer inviting reliance 2. Ex: client retains a lawyer to draft a will leaving assets to third party 3. he assumes a relationship with the guardian and ward. (Tactic: document it and get out. May arise regardless if client intends lawyer to act for third party where third party cannot protect own rights c. Ex: Miley Cyrus Billy Ray has control of her accounts. Based on client’s intention—lawyer owes duty to third party when lawyer knows that the client intends the lawyer’s services to benefit the third party.Downloaded From OutlineDepot. If her lawyer sees Billy Ray taking Miley’s $$ he had a duty to tell her dad to stop committing crime. imposition of duty would not impair lawyer’s obligation to client. Issues with how far courts will go with expansion Some courts hold trustee under no duty to disclose privileged communications relating to trust administration to beneficiaries Court argued that attorney only represented trustee and NOT beneficiaries 31 . Ex: clients who act as trustees. Some jurisdictions have pass through that says if you see the trustee looting or doing something bad. it must inform beneficiaries if conflict of interest arises. he would have gotten too so should have recommended that for him as your client Foreseeability here about as easy as it is on proximate cause Different here from Nichols and Keller is here you were doing a full job for someone. guardians. you represent the function b.com Determination of Whether Lawyer will be held Liable is done under these Policy Factors: 1) the extent to which the transaction was intended to affect the 3rd party 2) Foreseeability of harm to 3rd party 3) Certainty that 3rd party suffered injury 4) Closeness of connection between respondent’s conduct and injury 5) Policy of preventing future harm 6) Whether recognition of liability under the circumstances would impose an undue burden on the profession Turns on privity Also think about the fact that it’s a community property state so whatever money she got. 3 types: 1.) • Lawyer owes duty to and may be sued by third party in all of the above cases • Notion of fraud very important o “When attorney undertakes to represent the guardian of an incompetent. you have obligation to stop them because your duty passes through to beneficiaries d.” owes both fiduciary duty o Hypo: if layer represents trustee and bank. do not want to be in situation of someone stealing $ from beneficiaries. Lawyer invites a third party to rely on the lawyer a. and absence of duty would make it unlikely the third party could enforce the lawyer’s obligations to the client a.
give them reason to rely upon you by something such as an opinion letter.do not rely on things family members tell you without double checking them. You may as a lawyer create a duty to a 3rd party thru invitation. Holding: URS owed opposing counsel a duty of care to abstain from misrepresentation and deceit. then hangs himself.§§56. the successor trustee controls the privilege regarding communications between counsel and the predecessor trustee in his capacity as trustee Duty to beneficiary cannot be assumed in situation in which the interests of the fiduciary and beneficiary are adverse If beneficiary loses assets due to lawyer’s mistake lawyer is liable VS. client retains letter for purpose of conferring benefit on 3rd party Status cases is where the status creates a duty (guardian. I wrote letter that says I did search when I did not. you may have duty to that 3rd party now Cicone v URS Rule: Duty is owed by attorney not to defraud another. unless disclosure is prohibited. Negligence in reliance upon a misrepresentation is not a defense where the misrepresentation was intentionally made to induce reliance upon it. you will be liable for family member’s misrepresentation o Hypo: Brother in law lies. Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. Knowingly make a false statement of material fact or law to the nonclient.1 . even if the attorney is negotiating at arm’s length. Make a false statement of material fact or law to a third party. Misrepresentation . you invite someone to rely on you. the way to vindicate their reliance interest is giving them a cause of action against you Clients intention is like third party benefit. minor. a lawyer shall not knowingly: 1.MR 4. Make other statements prohibited by law.1: Truthfulness in Statements to Others In the course of representing a client. OR 2. if lawyer modifies trust to benefit trustee. Shrock Rule: A lawyer may not be held jointly liable with a client for the client’s breach fiduciary duty unless the third party shows that the lawyer was acting outside the scope of the attorney-client relationship 32 . 2.Downloaded From OutlineDepot. Fail to make a disclosure of information required by law. now I can be sued for $3 million that he owed even though he told me I didn’t need to search. guardian. A promise made without any intention to perform constitutes actionable fraud. 98 Model Rule §4. he is not liable for beneficiaries that may incidentally lose assets Family relationship no defense to misconduct. Attorney must not engage in deceit.com • Duties run to successor fiduciary of trust—when one trustee replaces another. and must take pains to avoid negligent misrepresentation Secondary Liability Aiding and Abetting – sometimes you just help people commit unlawful acts Reynolds v. OR 3. elderly) by virtue of representing a client with respect to their duties to the 3rd party. Restatement § 98: Statements to a Non-client A lawyer communicating on behalf of a client with a nonclient may not: 1.
meaning or application of the law.6. US v. evaluation.Downloaded From OutlineDepot.3 EVALUATION FOR USE BY THIRD PERSONS (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely. the lawyer shall not provide the evaluation unless the client gives informed consent. a lawyer may provide to a nonclient the results of the lawyer’s investigation and analysis of facts of the lawyer’s professional evaluation or opinion on the matter. in conduct that the lawyer knows is criminal or fraudulent. you are an aider and abettor . one is subject to liability if he: (a) does a tortuous act in concert with the other or pursuant to a common design with him. or assist a client. (c) Except as disclosure is authorized in connection with a report of an evaluation. or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself. the lawyer must first obtain the client’s consent after the client is adequately informed concerning the important possible effects on the client’s interests.3 ways persons acting in concerts may be held accountable for each other’s tortuous conduct: .com Holding: No evidence existed to show the lawyer acted outside scope of laywer-client relationship. If a reasonable man who knew what a lawyer knew would 33 . information relating to the evaluation is otherwise protected by Rule 1. (2) When providing the information. or opinion under Subsection (1) is reasonably likely to affect the client’s interests materially and adversely. (3) In providing the information. but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity. evaluation or opinion under Subsection (1). separately considered. As default matter restatement thinks if you help someone commit a tortuous act. scope. or gives substantial assistance to the other in accomplishing a tortuous result and his (c) own conduct. the lawyer must exercise care with respect to the nonclient to the extent stated in §51(2) and not make false statements prohibited under §98. Sarantos – helps with criminal cases Rule: Lawyers cannot escape criminal liability on a plea of ignorance when they have shut hteir eyes to what was plainly to be seen. constitutes a breach of duty to the third person MR 2. §95 AN EVALUATION UNDERTAKEN FOR A THIRD PERSON (1) In the furtherance of the objectives of a client in a representation.2(d) SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (d) A lawyer shall not counsel a client to engage. MR 1.For harm resulting to a third party from the tortuous conduct of another.
Downloaded From OutlineDepot.com have inquired further and discovered illegal activity, then the lawyer is an aider and abettor. Deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires Holding: Lawyer found to have deliberately avoided acquiring unpleasant knowledge. In re matter of Scionti RULE - Lawyer may counsel a client to make a good faith effort to determine the validity, scope, meaning, and application of law and may refuse to comply with an obligation imposed by law on a good faith belief that no valid obligation exists, however belief must have merit and be reasonable under circumstances.
ASSUMING DUTIES MR 1.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent (2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship, and (3) Information relating to representation of a client is protected as required by Rule 1.6 (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilt or nolo contendere pleas, unless each client gives informed consent,
Downloaded From OutlineDepot.com in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement A lawyer shall not (1) Make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement, or (2) Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting or the client except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer’s fee or expenses, and (2) contract with a client for a reasonable contingent fee in a civil case A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced Whole lawyers are associated in a firm, a prohibition in the forgoing paragraphs (a) through (a) that applies to any one of them shall apply to all of them
FORMATION FO A CLIENT-LAWYER RELATIONSHIP
A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person and either a. the lawyer manifests to the person consent to do so, or b. the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services, or (2) a tribunal with power to do so appoints the lawyer to provide the services
A LAWYER’S DUTIES TO A PROSPECTIVE CLIENT (1) When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, a lawyer must: a. Not subsequently use or disclose confidential information learned in the consultation, except to the extent permitted with respect to confidential information of a client or former client as stated in §61-67, b. Protect the person’s property in the lawyer’s custody as stated in §44-46 and c. Use reasonable care to the extent the lawyer provides the person legal services (2) A lawyer subject to Subsection (1) may not represent a client whose interests are materially adverse to those of a former prospective client in the same or a substantially related matter when the lawyer or another lawyer whose disqualification is imputed to the lawyer under §123 and 124 has received from the prospective client confidential information that could be significantly harmful to the prospective client in the matter, except that such a representation is permissible if: a. (i) any personally prohibited lawyer take reasonable steps to avoid exposure to confidential information other than information appropriate to determine whether to represent the prospective client and (ii) such lawyer is screened as stated in §124(2)(b) and (c), or b. Both the affected client and the prospective client give informed consent to the representation under the limitations and conditions provided in §122.
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Think of duties in the same way you think of the bundle of rights in property, you can assume one of them or all of them but you don’t necessarily have to assume all to assume one Duty of confidentiality: Begins when L accepts confidential information from C DUTY OF CONFIDENTIALITY Confidences received from prospective clients who don’t hire you: o Must keep information received during client “beauty shopping” confidential o Risk is that this may disqualify you from future work - Checklist: (i) Does lawyer owe client duty; (ii) Can lawyer be DQ’d from representing adverse client?; (iii) If lawyer does anything to hurt client, can they be sued civilly? RULE FOR CONFLICTS: When you have confidential information from client, you may not be adverse to former client on matter substantially related to representation, and may not be adverse to current client at all Bridge Products v. Quantum Chemical - Can you be disqualified because of confidences from non-clients? Yes. Internet Communications Barton v. USDC Rule: Client’s communication is confidential to lawyer if made in course of relationship. IT is not required that lawyer agree to represent client at time communication is made, extends to preliminary consultation necessary as policy because potential clients must be able to tell lawyers their private business without fear of disclosure Holding: Communications made in questionnaire are confidential and cannot be accessed by others Confidences from Parties Related to Clients Westinghouse v. Kerr-McGee Rule: o (1) Law Firm cannot represent two clients with conflicting interests, violation of duties o (2) There is no basis for creating separate disqualification rules for large firms even though the burden of complying with ethical considerations will naturally fall more heavily upon their shoulders Holding: The fact that 2 contrary undertakings by law firm occurred contemporaneously with each involving substantial stakes and substantially related to the other outbalances the client’s interest in continuing with the chosen attorney DUTY OF CARE Togstad - Lawyer tells her that he said he didn’t think they had a legal case but would talk about it with his partner, he says that he told her that there was nothing in her facts that his firm was interested in undertaking Duty of care: Begins when L renders advice to C
Lawyers cannot advance clients cash.MR. 1 and only one way to take a case and 1 and only one way to get rid of a case and 1 and only one way to leave a firm - 1) you get a call from a prospective client asking for your services. Limitations on ability to form duties or refuse to form duties 37 . but in some jurisdictions they can direct clients to third party who fund litigation through cash advances o Though misleading because typically the advances do not have to be repaid unless the P borrower receives money from the case. to see which lawyer will give them the most money Oklahoma Bar Association v.2 – You can advertise but cannot pay for testimonials . he can refuse without duty attaching.3 .MR 7.1 – No Lying . that is wrong.3 – No for-profit solicitation Communication is a generalized expression that outs your services and makes people want to hire you Solicitation is inside of that Basic rule is neither of those can be misleading Public interest lawyers get a lot of leeway on solicitation/advertisement Solicitation more closely regulated than advertising Written materials get more leeway than verbal pitches Advancing Clients Money .com Rule: When an attorney is consulted about whether he will take a case. the explicit prohibition against such conduct is constitutional and the lawyer is subject to discipline. initial impulse is to try to reel them in. hang up the phone or ask them to wait in the waiting room check your conflicts data base to see if there are any conflicts with those you obligations too now you can either accept the client or decline the client 2) 3) Advertising and Solicitation – 7. Get a number where you can reach them in 2-3 minutes. duty of care attaches to advice the attorney gives.MR 7.1-7. Alternative Funding Mechanisms (Civil Only) . when he renders legal opinion.MR 1. Smolen Rule: Lawyer can only loan money to client to cover litigation and court costs Holding: Because of potential ethical problems that could arise from a lawyer advancing clients money for living expenses. 7. First thing you do before you give advice or before you find out any confidential information you ask who are the adverse parties (ALL of them).Downloaded From OutlineDepot. However.8(e) o You may not provide financial assistance to a client before their trial (give them an interest free loan) – basically outlaws auctions by clients.
Rule: Attorney or law office holding itself our as open to the public may not reject a potential client solely on the basis of his gender or some other protected class. shall withdraw from the representation of a client if (1) the representation will result in violation of the rules of professional conduct or other law (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. (d) Upon termination of representation. 38 .16 says that a lawyer shall not represent a client or shall withdraw if the representation will result in violation of model rules or other law Law practice includes everything and in the management of a law practice you shall not unlawfully permit unlawful discrimination in hiring. . surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.com MR 1.16(a) DECLINING OR TERMINATING REPRESENTATION (a) Except as stated in paragraph (c). a lawyer shall not represent a client or. allowing time for employment of other counsel. a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent (3) the client has used the lawyer’s services to perpetuate a crime or fraud (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client or (7) other good cause for withdrawal exists (c) a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.16 (b)-(d) DECLINING OR TERMINATING REPRESENTATION (b) Except as stated in paragraph (c). promoting. where representation has commenced. When ordered to do so by a tribunal. The lawyer may retain papers relating to the client to the extent permitted by other law. a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest.Complainant may establish a prima facie case of discrimination by showing: o (1) He is a member of a protected class o (2) Denied access to/ use of o (3) A place of public accommodation TERMINATING DUTIES MR 1. discharging or accepting or turning away representation of client Stropnicky v. 1. a lawyer shall continue representation notwithstanding good cause for terminating the representation. such as giving reasonable notice to the client. or (3) the lawyer is discharged.Downloaded From OutlineDepot. Nathanson .
(d) the lawyer dies or becomes physically or mentally incapable of providing representation. where representation has commenced. (3) A lawyer’s apparent authority to act for a client with respect to another person ends when the other person knows or should know of facts from which it can be reasonably inferred that the lawyer lacks actual authority. a lawyer may not represent a client or.Downloaded From OutlineDepot. The representation has been rendered unreasonably difficult by the client or the irreparable breakdown of the client-lawyer relationship i. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client or c. (c) the lawyer withdraws. The representation will result in the lawyer’s violating rules of professional conduct or other law b. is disbarred or suspended from practicing law. a lawyer’s actual authority to represent a client ends when (a) the client discharges the lawyer (b) the client dies or. §32 DISCHARGE BY A CLIENT AND WITHDRAWAL BY A LAWYER (1) Subject so Subsection (5). in the case of a corporation or similar organization. (2) Subject to Subsection (1) and §33.com §31 TERMINATION OF A LAWYER’S AUTHORITY (1) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation and with an order of a tribunal requiring the representation to continue. The lawyer reasonably believes the client has used or threatens to use the lawyer’s services to perpetrate a crime or fraud f. The client discharges the lawyer (3) Subject to subsections (4) and (5). including knowledge of any event described in Subsection (2). or in breach of the client’s fiduciary duty e. or (e) the representation ends as provided by contract or because the lawyer has completed the contemplated services. loses its capacity to function as such. must withdraw from the representation of a client if: a. or is ordered by a tribunal to cease representing a client. The client fails to fulfill a substantial financial or other obligation to the lawyer regarding the lawyer’s services and the lawyer has given the client reasonable warning that the lawyer will withdraw unless the client fulfills the obligation h. fraudulent. The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal. The lawyer reasonably believes withdrawal is required in the circumstances stated in subsection (2) c. Withdrawal can be accomplished without material adverse effect on the interests of the client b. The client gives informed consent d. (2) Subject to Subsection (5). Other good cause for withdrawal exists 39 . a lawyer may withdraw from representing a client if: a. a client may discharge a lawyer at any time. The client insists on taking action that the lawyer considers repugnant or imprudent g.
and d. Fact of termination would not end the malpractice inquiry. a lawyer may not withdraw if the harm that withdrawal would cause significantly exceeds the harm to the lawyer or others in not withdrawing (5) Notwithstanding Subsections (1)-(4).Because if you don’t then you continue to owe duties and loyalty and you extend the time which you could be sued for malpractice . to those who might otherwise be misled. .Sometimes if you’re in front of a tribunal you cannot get out unless the tribunal lets you out Fact you’re going to lose money on a case is not a cause for a withdrawal and it would prejudice your clients because they wouldn’t be able to get any other lawyers and you’ve got a contingent fee 40 . One of the two of you has to declare it over .Your responsibility to make clear to your client when you end representation in some sort of tangible form (letter or e-mail) .Unless client thinks the relationship is at an end. Observe obligations to a former client such as those dealing with client confidences. that the lawyer lacks authority to act for the client c.Downloaded From OutlineDepot. conflicts in interest. questions would still remain about lawyers’ handling of termination NOTES . Take reasonable steps to convey to the former client any material communication the lawyer receives relating to the matter involved in the representation. surrendering papers and property to which the client is entitled. its not.com (4) In the case of permissive withdrawal under subsections (3)(f)-(i). client property and documents (§44-46). (2) Following termination of representation. a lawyer must take steps to the extent reasonably practicable to protect the client’s interests. and fee collection (§41) b. such as giving notice to the client of the termination.Rule: Withdrawing attorney must give a client clear and unambiguous notice of the attorney’s intent to withdraw from representation. Take no action on behalf of a former client without new authorization and give reasonable notice. and refunding any advance payment of fee the lawyer has not earned.It extends the period of time she counts as a client for conflict of interest period and the time she can sue you for malpractice . Take no unfair advantage of a former client by abusing knowledge or trust acquired by means of the representation Hermine Hanlin v. a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation and with a valid order of a tribunal requiring the representation to continue. Mitchelson . §33 A LAWYER’S DUTIES WHEN A REPRESENTATION TERMINATES (1) in terminating a representation.Holding: Status and scope of attorney client relationship prior to commencement of instant suit are unresolved questions. allowing time for employment of other counsel. Lawyer shall not withdraw from representation until he has taken reasonable steps to avoid foreseeable prejudice to the rights of the client. a lawyer must: a.
Downloaded From OutlineDepot. If lawyer is discharged for following MR he can bring tort claim against employer NOTES: You can bring breach of contract claim. all their revenue. retaliatory discharge claim you can only bring if you can find a way to get around the duty of confidentiality In house attorneys have a problem which is they only have one client to cover all their expenses. risk allocation agreement Whiting v.Holding: Extra protection afforded to in-house counsel due to extra pressure from company to violate ethical rule.Rule: In-house counsel can bring discharge tort claim against employer if attorney was discharged for following mandatory ethical obligation prescribed by professional rule or statute . §121 THE BASIC PROHIBITION OF CONFLICTS OF INTEREST 41 .com agreement which entails both the possibility of huge upside and huge downside.Holding: Lawyer allowed to withdraw because conflict of interest between lawyer and client developed at oral argument. more vulnerable you are to their influence Advice – diversify your revenue base to make it easier to do the right thing If you’re in house make sure you have a network so you can have a soft landing if you are out of there tomorrow You can fire a lawyer at any time you want. or where conflict of interest develops between lawyer and client . however court would normally not allow lawyer to withdraw on eve of trial when lawyer had notice he was taking on difficult client General Dynamics .Rule: Withdrawal required when client bringing legal action merely for the purpose of harassing or maliciously injuring another. A concurrent conflict of interest exists if: (1) The representation of one client will be directly adverse to another client. not a law office culture Court says they worry that a lawyer who is dependent on a single client is vulnerable to leverage to do the wrong thing because the threat to be fired is a threat to losing all of your income as opposed to a threat to loose just a tiny part of your income More your entire revenue is dependant on one client. or (2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.7(a) (a) Except as provided in paragraph (b). a former client or a third person or by a personal interest of the lawyer. it’s a corporate culture. but if they’re in house they’re also your employee CONFLICTS OF INTEREST MR 1. a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. Lacara .
Rule: Attorney who drops one client to take on another violates duty of loyalty. a lawyer in civil litigation may not: (1) represent two or more clients in a matter if there is a substantial risk that the lawyer’s representation of one client would be materially and adversely affected by the lawyer’s duties to another client in the matter. §128 REPRESENTING CLIENTS WITH CONFLICTING INTERESTS IN CIVIL LITIGATION Unless all affected clients consent to the representation under the limitations and conditions provided in §122.Downloaded From OutlineDepot. a former client. Rule 1.com Unless all affected clients and other necessary persons consent to the representation under the limitations and conditions provided in §122. by unilaterally converting present client into former client. a lawyer may not represent a client if the representation would involve a conflict of interest. . even if the matters are not related. Fireman .0 – definitions to know for this section (i) “Reasonable belief” or “Reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. or a third person. or (2) represent one client to assert or defend a claim against or brought by another client currently represented by the lawyer. anything short of that isn’t good enough 42 . (e) “Informed Consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct There are related and unrelated matters and there are times when you are retained and when you have terminated representation You may not represent a party adverse to your client while you are representing your client You may not represent a client whose interests are adverse if the matter is substantially related to the representation of your former client Concurrent Related unrelated No representation of adverse interests Subsequent No rep on substantially related matters Rep OK absent substantial relationship Conflicts Arising from Concurrent Representation Truck v. Attorney may not avoid breaching duty of loyalty which concurrent representation rule is to avoid. A conflict of interest is involved if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another client.Holding: Lawyer concurrently represented both clients and therefore violated duty – withdrawal from representation of client 1 before the hearing of the motion to DQ did not convert concurrent representation into subsequent representation for purposes of assessing conflict To get informed consent you need to explain to a client why it might be bad for them to say yes and why it may be good for them to get another lawyer to advise them.
or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests.Except as provided in (b). or a third person by a personal interest of the lawyer. Cunningham . as when the testimony will be damaging to the client who is represented in the lawsuit.Model Rule §1.7 (a)(2) . then a series of representations.material limitation also creates a conflict .Rule: Loyalty to a client is impaired when a lawyer cannot consider. Law firm should not seek to compensate one client from the pockets of another NOTES: .7 – “Directly Adverse” .7(A)(2): Conflict of Interest: Current Clients .Always draw pictures of conflicts . recommend.1. On the other hand. Remedies for Concurrent Conflicts . Fiandaca v. a former client. A concurrent conflict of interest exists if: • There is a significant risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client. even if they’re discrete can make it so that you are still deemed to represent them Comment 6 to MR 1.Rule: Any doubt as to whether a law firm should be disqualified is to be resolved in favor of disqualification. simultaneous representation…” NorthStar v.Most common remedy is to disqualify attorney from participating in pending litigation and the burden to prove that this should happen is on the moving party .com Which clients are current? If you don’t send a termination letter they’re more likely to be considered current If you don’t do that then there are a couple cases IBM v Levin .With conflicts. if they are reasonable in considering you their lawyer in a certain type of work. including the extent of actual or potential delay in the proceedings o (3) the effectiveness in light of the violations o (4) the public’s perception of the profession 43 .That means the judge basically makes a gut call on this and if it looks right or not Limitation on Counsel’s Ability to Represent Zealously .If from the client’s point of view.Downloaded From OutlineDepot. D) o “Similarly.In Determining whether DISQUALIFICATION is required the courts look at various factors: o (1) the nature of the ethical violation o (2) the prejudice to the parties.Rule: where you have specific representation on specific matters that bracket a time where there is adverse representation when you don’t have any pending IBM matters but you have a history of representing them. . Conflict in effect forecloses alternatives that would otherwise be available to the client.Parties are directly adverse when they sit across the table from one another (P v. a directly adverse conflict may arise when a lawyer is required to crossexamine a client who appears as a witness in a lawsuit involving another client. a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. Mid-City . the standard of review is abuse of discretion .
apart from the law firm in which the lawyer practices. however must have interest or be affected by outcome of litigation • Appealing Disqualification: o Federal law does not allow for interlocutory appeals of disqualification orders as a matter of right Exception for collateral orders: Those that finally determine claims of right separable from. officer.it provides little hope for disqualified counsel MR 6. They are when a conflict arising from different positions on a legal question. that’s direct adversity as well as a side constraint Positional conflicts are not conflicts because they do not create direct adversity for purposes of Rule 1. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision or action would be incompatible with the lawyer’s obligations to a client under Rule 1. notwithstanding that the organization servers persons having interests adverse to a client of the lawyer.Downloaded From OutlineDepot. officer or member of a legal services organization. the lawyer shall disclose that fact but need not identify the client Fiandaca – no conflict on being able to fight zealously for their clients on the fact that the facilities were inadequate.3 MEMBERSHIP IN LEGAL SERVICES ORGANIZATION A lawyer may serve as a director. When the lawyer knows that the interests of the client may be materially benefited by a decision in which the lawyer participates.com Standing and Interlocutory Appeal • Some sort of confidential or fiduciary relationship must have existed before a party is entitled to prevail on a motion to disqualify an attorney predicated on the actual or potential disclosure of confidential information o Does not need to be a party. The general rule is adverse positions do not count as adverse positions has an exception (Page 11) 44 . rather than different legal or economic interests. or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interest of a client of the lawyer. and collateral to.7. or (b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS A lawyer may serve as a director. MR 6. rights asserted in the action and are too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated • USSC has held cases do not fall within this exception in both crim and civil o Alternative method available if controlling question of law as to which there is a substantial ground for difference of opinion and immediate appeal from order may materially advance ultimate termination of the litigation Courts construed this narrowly.7(a). but unable to recommend a remedy.
or when the information has become generally known.com Research Corp Tech v HP Sometimes if you can persuade a court that if you’re not disloyal in a strong sense and can preserve confidentiality then you might not get thrown off the case. If you have been found to have engaged in conflicted litigation. Not easy to do but if you can yay In addition to disciplinary consequences.9 NOTES: Not about loyalty but confidentiality 45 .6 and 1.Matters are substantially related if they involve the same transaction or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. . confirmed in writing (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter 1. use information relating to the representation to the disadvantage of the former client except as those rules would permit or require with respect to a client.9 (a) MR 1. reveal information relating to the representation except as these rules would permit or require with respect to a client.9 . When you’re sued for malpractice. whose interests are materially adverse to that person and 2.9 DUTIES TO FORMER CLIENTS (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. Subsequent conflicts of interest .What is substantially related? Substantial relationship test is embodied in 1.Downloaded From OutlineDepot.§132 . who pays? You. about whom the lawyer had acquired information protected by Rules 1. confirmed in writing (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client 1. do you have to pay them back to BOTH clients? Yep. suppose you have extensive legal expenses over a disqualification motion. or they can tell it and you were trying to be fair to both sides and unable to because you were being pulled in both directions Once representation ends.MR 1. or 2. they can tell it as you were greedy and selling their client down the river.9(c) that is material to the matter unless the former client gives informed consent. a smart plaintiff’s lawyer will tell a story about why you did something.Same matter is easy – can’t switch sides in cases. then you look to 1. .Arising from representation adverse to former clients .
is a lender. invests in a company.Rule: Factor test to determine whether fiduciary can represent competitors: o (1) Extent to which fiduciary was involved in former client’s affairs o (2) Danger of confidences if revealed o (3) Substantial relationship between former representation and current representation .com Look at Matter 1 and say “what are the material facts?” “what other info might be material”.Holding: As fiduciary P can be fully enjoined from representing Ms competitors because it would create too great a danger that Ms confidential relationship would be breached Conflicts and Confidences obtained other than through representation Oaks Management v.7 or 1. defenses.Courts may decline to allow defendants to waive conflicts. then you can have a conflict and get disqualified. none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1. unless there is some reason to believe that there is harm likely to result on misconduct from the attorney obtaining that information Conflicts in Criminal Cases Wheat v. Don’t look at what information you actually have. just doing business transactions) and gets exposed to confidential information and subsequently as a lawyer runs across them adversely.Counsel laboring under an actual conflict of interest that adversely affects their performance are presumed ineffective.10 IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE (a) While lawyers are associated in a firm. prejudice need not be shown .9. even if confidentiality isn’t the issue Analytica v.Rule: Appearance of impropriety test is used to determine if a firm should be disqualified where it is very difficult to objectively verify that improper communication has taken place or will take place between lawyers in the firm handling 2 sides Maritrans v. jury instructions all of that to look back to figure out the relevant facts. Then do the exactly the same thing with Matter 2. its what information is material to the case Other way: look at legal problem and nature of representation Playbook – a book of a corporation’s policies like “our firm will settle if it falls in this range” or whatever. Superior Court . may you be disqualified? No. unless the prohibition is based on a personal interest of the prohibited lawyer and does 46 . look at elements of causes of action. all work product. NPD .When there is no attorney-client relationship (ex: lawyer sits on the board of directors.Downloaded From OutlineDepot. Pepper . and prosecutors may complain of conflicts on the defense side of the case IMPUTATION OF CONFLICTS AND SCREENING MR 1. if you switch firms and know stuff about the other firm’s playbook. Then see if they overlap. legitimate theory Sometimes subsequent disqualification cases are not about confidentiality but loyalty (ex: Brennan’s chicken case) you cannot attack your previous work. US . internal set of policies.
and (2) any lawyer remaining in the firm has information protected by Rules 1. and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule (c) Except as law may otherwise expressly permit. (b) When a lawyer is disqualified from a representation under paragraph (a).12(b) 47 . A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.12(b) and subject to the conditions stated in Rule 1.9(c) and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1. the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.9(c) that is material to the matter (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1. (d) Except as law may otherwise expressly permit. no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1. to the representation. unless the appropriate government agency gives its informed consent. or ii. the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm.7 (d) The disqualification of lawyers associated in a firm with former or current gov’t lawyers is governed by Rule 1. (b) When a lawyer has terminated an association with a firm. negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally or substantially. a lawyer who has formerly served as a public officer or employee of the gov’t (1) is subject to rule 1. may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.6 and 1. informed in writing. unless the appropriate gov’t agency gives its informed consent. at the time this Rule is applied.7 and 1. a lawyer having information that the lawyer knows is confidential information about a person acquired when the lawyer was a public officer or employee.com not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.Downloaded From OutlineDepot.9 (2) shall not: i.11 MR 1. participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment. unless (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client.11 SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOV’T OFFICERS AND EMPLOYEES (a) Except as law may otherwise expressly permit. confirmed in writing. the term “confidential government information” means information that has been obtained under governmental authority and which. except that a lawyer serving as a law clerk to a judge. As used in this Rule.
he thought there was no formal representation but not true. then the presumption is gone and the firm can represent the music company Doesn’t go from firms to lawyers 2 ways you can taint a lawyer – When you’re an associate. claim. request for a ruling or other determination. then later on Salomon wants to represent the music company. he was told things and assumes duty of care and confidentiality.If you work directly with the client disqualified .§§123-124 Imputation – concept by which information is imputed from lawyers to firms and can limit your mobility in moving from job to job Imputation from Lawyer to Firm .10-1. Salomon leaves the firm. contract. here you’re assuming there’s a substantial relationship and if any of the remaining lawyers have any information. application.I you worked on the periphery of the case with little interaction then you will not be DQd unless it is established that you received confidential information One tainted lawyer taints the entire firm to a matter. hard to go back and do it 48 . accusation. Goldberg says you cant on a matter adverse to me and moves to disqualify the firm When the lawyer leaves the firm. direct inquiry if they actually have any and if any of that information that applies So if Salomon was the only one that has information and he’s gone and no one else has any information on Goldberg’s situation. the firm isn’t prohibited unless 1 and 2 are both covered The language in (b)(2) – not talking about substantial relationship test as a proxy if the lawyer has information. charge. have a list to know which matters you have confidential information on. no matter how big the firm is Goldberg v Warner/Chappell Music . investigation.MR 1. the term “matter” includes: (1) Any judicial or other proceeding.Downloaded From OutlineDepot.Rule: Exception to substantial relationship exists where there was no opportunity for confidential information to be divulged . keep it on going as you work.com (e) As used in this Rule. controversy. and (2) Any other matter covered by the conflict of interest rules of the appropriate government agency Imputation of Knowledge and Screening . Goldberg serves Warner/Chappell. arrest or other particular matter involving a specific party or parties. your job is to know the scope of your taint.Holding: Attorney’s presumed possession of confidential information concerning former client should not automatically cause attorney’s former firm to be vicariously DQed where evidence establishes that no one other than the departed attorney had any dealings with client or obtained confidential information Goldberg has an informal discussion with Salomon (or so he thought).11 .
Does not impute conclusively Adams v. (Discovery allowed only after lawyer has established burden of prima facie showing) Conflicts and the “Common Interest” Exception to Privilege Waiver .Downloaded From OutlineDepot. look at things like the size of the firm. Aerojet .Not an irrebuttable presumption of reimputation on the flip side of the firm based on matters that are not at issue (EX: representing a big client and then go to work for D1 or D2 in the JDA) SCREENING Can you screen a lawyer from a case in order to keep the entire firm from being disqualified? According to the MR no. if you get a hard one like this then do a timeline to figure out if its concurrent or subsequent conflicts Has to deal with disqualification of Hancock.Rule: Where a substantial relationship between the former firm’s representation of the client and the current lawsuit has been shown. the person wants to be hired. the attorney whose disqualification is sought should carry the burden of proving that he had no exposure to confidential information relevant to the current action while he was a member of the former firm. include everything to cover your ass .Conflicts and Joint Defense Agreements – district court says you need consent from all the JDA members to represent a client adverse to the JDA . give them one anyway so they know what they’re getting into before they get into it so you’re covered in case they realize the mistake later on because “you didn’t ask for it” isn’t persuasive when you get caught in trouble If the lawyer says “I sat in on a deposition” you need to inquire further and find out whose deposition you sat in on. they’re gonna say what they want to get hired If you’re going to screen (even though you’re not supposed to) you need to be prepared under penalty of perjury something that says “I know I wasn’t supposed to talk to X and I didn’t” Screening also works for support staff Morrison Knudsen – hardest conflicts issue he’d give us on an exam. the answer to that under some states rules is sometimes If a new firm doesn’t ask for a conflict and screening report. Rothert firm who represented ML for 80’s and early 90’s. have to think of things like JDA and their communications. talk to witnesses.com Summer works counts and never ends When looking to see if firm remains the taint. its almost impossible to think they didn’t talk at all about their biggest client Imputation from Firm to Lawyer .So in your taint list. Have to figure out if representation of a subsidiary company equates to representation of the parent company Then have to figure out monitoring counsel problem – monitor litigation. they make sure they are comfortable with the way litigation is going This means a constant flow of information from the company. If it’s a 7 person firm where 3/7 are partners and its their biggest client. through the insurance company to Hancock who is the monitoring counsel 49 .
that is the type of analysis you can do. ask if the people who are making the decisions are the same people Information Transmitted to Non-Lawyers: Expert Witness Problem . a lawyer may not represent a client if: a. if that set of decisions involves the sub then they count. it is a separate entity so you have neither a concurrent client and no subsequent conflict Are we worried about loyalty or confidentiality? We’re worried about the information Hancock got so we’re worried about information flow and confidentiality. Informed consent requires that the client or former client have reasonably adequate information about the material risks of such representation to that client or former client.com So this looks hard because no direct conflict problem. In default. not the subsidiary 2 tests to figure out if sub and the parent collapse into one 1) apply corporate law. makes no sense 2) unity of interest test – ask if the confidential information is related to the present claim. Is the general information something that can be used against the new client? Even though none of the information in the information flow has to do with the exact problem. some limits on consent Rule 1. the court presumes expert conveyed confidential information to other side and burden shifts to party whose DQ is sough to rebut presumption Logic: Presumption makes sense only if moving party has no ability to secure the evidence it needs to establish it right to DQ CLIENT CONSENT– parties may consent to conflicted representation.Downloaded From OutlineDepot. 50 . the rule depends on whether the moving party is able to discover from the expert the contents of her communication with the lawyers for the opposing party o If expert has severed all ties with moving party and refuses to communicate with them.Party seeking disqualification must show that the non-attorney expert whose conduct is the basis for the motion actually obtained confidential information o Once the moving party shows this. the playbook argument says its still useful which demands disqualification Everything is about the parent company.0 (e) – Informed Consent (e) “Informed consent” denotes an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. worried about a set of decisions made by the parent company. in order to look like a substantial relationship you need to collapse the subsidiary and the parent company. §122 CLIENT CONSENT TO A CONFLICT OF INTEREST (1) A lawyer may represent a client notwithstanding a conflict of interest prohibited by §121 if each affected client or former client gives informed consent to the lawyer’s representation. (2) Notwithstanding the informed consent of each affected client or former client. alter ego test. but unless you have to you don’t want to do that test. The representation is prohibited by law. So what addresses that concern? The test that talks about confidentiality is substantial relationship test. Brooklyn Navy Yard.
you get around getting sued with a good consent document Klemm v. it is not reasonably likely that the lawyer will be able to provide adequate representation to one or more of the clients.Holding: Firm’s duties to disclose any representation adverse to interest of one party cannot be fulfilled by mentioning in passing participating in a brief contrary to the interest of the client without stating the details of why the interests are contrary. then with full disclosure to and informed consent of both parties there may be dual representation . D agreed not to DQ Heller notwithstanding any adversity that might develop. it is not sufficient that both parties be informed of the fact that the lawyer is undertaking to represent both of the.Rule: If the conflict is merely. with undivided loyalty to the interests of each of them .Rule: To satisfy the requirement of FULL DISCLOSURE by a lawyer before undertaking to represent 2 conflicting interests. potential. One client will assert a claim against the other in the same litigation. only when you have that can they consent to waive the right Problem that most often arises is representation of people who want to start a company together If you’re working for people who want to consent to conflicted representation.com b. In the circumstances. When adversity did develop D obtained separate counsel but reaffirmed agreement to consent form and to Hellers continued representation of P Waivers Involving Entities and Entity Constituents .MR 1. full disclosure. waiver and consent form was detailed. Generally: • • Clients opposing each other in litigation cannot consent to have the same lawyer represent each of them Clients otherwise may consent to have their lawyer or former lawyer to undertake a matter of the conflicts rules otherwise would bar her from taking o Consent is limited to situations in which a lawyer reasonably believes he could fulfill his obligations o Consent does not relieve a lawyer of his duties of loyalty and care Lawyer still owes these. or c.Rule: Every possible consequence of a conflict does not have to be disclosed for consent ot be valid – consent must be informed and written.Downloaded From OutlineDepot. client must be advised he has right to obtain independent counsel before giving consent. may face civil liability for breach o Consent is only as good as the information on which it is based A lawyer who does not give the client full information about the nature of a conflict and the advantages and disadvantages of consenting to a conflict may find that courts or disciplinary officials refuse to recognize the consent There has to be informed consent. Zador gives an example of how to do it right .Holding: DQ motion denied – D consented to Heller’s continued representation of P.13 51 . there being no existing dispute or contest between the parties represented as to any point in litigation. but he must explain to them the nature of the conflict of interest in such detail so that they can understand the reasons why it may be desirable for each to have independent counsel. Superior Court . .RARE – WARNING o At the slightest hint of adversity – you must get out Image Technical .
except that: (1) a lawyer may advance court costs and expenses of litigation. or 52 . (b) A lawyer shall not use information relating to the representation of a client to the disadvantage of the client unless the client gives informed consent.Counsel may represent both the entity and one of its representatives. related persons include spouse. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship.Downloaded From OutlineDepot.6 (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation. possessory. if conflict of interest rules permit. to the essential terms of the transaction and the lawyer’s role in the transaction. child. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. security or other pecuniary interest adverse to client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advise of independent legal counsel on the transaction. grandparent or other relative or individual with whom the lawyer or the client maintains a close. For purposes of this paragraph.Conflict waivers in such situations must be signed by a representative of the entity other than the representative who will be jointly represented MR 1. or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. parent. . or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas. (c) A lawyer shall not solicit any substantial gift from a client. and (3) the client gives informed consent. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement. in a writing signed by the client. in a writing signed by the client.8 CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership. a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. including a testamentary gift. the repayment of which may be contingent on the outcome of the matter. and (3) information relating to the representation of a client is protected as required by Rule 1. familial relationship (d) Prior to the conclusion of representation of a client. except as provided or required by these rules. unless each client gives informed consent.com . grandchild. including whether the lawyer is representing the client in the transaction.
Transactions with Clients – GREAT WAY TO GET DISBARRED Requirements VERY important: 1. did impeccable procedure and through that makes it easier to rebut presumption to show that they did it right Relations with Insurers Purdy v. Breached duty to client by failing to disclose highly risky nature of investment. if necessary.Rule: Business transactions with lawyers scrutinized by courts with care.P failed to prove proximate cause.Holding: Lawyer violated rule and abused trust client had in him. (k) While lawyers are associated in a firm. Client must be advised to seek INDEPENDENT COUNSEL • Must demonstrate that you told client this and gave him enough time to do so o Good idea to put this in writing 3. . Attorney hold burden of proof to prove transaction was fair. goes and talks to 3rd party lawyer. a prohibition in the forgoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them. .Rule: Insurer cannot compel the insured to surrender control of the litigation. secure independent counsel for the insured. Attorney’s primary duty has been said to be to further the best interests of the insured. Franciscan Sisters v Dean – old lady leaves the money to the lawyer. set aside at the mere insistence of the client unless the attorney can show by extrinsic evidence that his client acted with full knowledge of all facts connected with the transaction and fully understood their effect. Terms must be FAIR AND REASONABLE • K will be scrutinized for substantive fairness • Not governed under K law. governed under fiduciary law 2. OR that you are NOT their lawyer AND are NOT looking out for their interests! Beery v State Bar – .com (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advise of independent legal counsel in connection therewith (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client except that a lawyer may: (1) Acquire a lien authorized by law to secure the lawyer’s fee or expenses. Lawyer suspended from practice for 3 years. and (2) Contract with a client for a reasonable contingent fee in a civil case (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.Downloaded From OutlineDepot. Client gives WRITTEN (& signed) INFORMED CONSENT • Must clearly state whether lawyer is representing client in transaction o Lawyer will typically not be representing client risk that client will not understand this and continue to believe that lawyer is continuing to look out for their interests o Must explicitly confirm with client that you are their lawyer AND looking out for their interests. Otherwise there would have been liability because: 53 . and must. Pacific .
but information gets passed with the insurer and they are hired by the insurer Representation of the insured does not imply representation of the insurance company unless they are a named party Court says when you represent insured you represent the insurer because the insurance company is a client with respect to being able to assert the attorney/client privilege Also looks like more of client of insurer if you get regular work from them Works well when they’re on the same side of an issue. it depends on what you think the strategy situation of your defendant is. problem when they’re on opposite sides (ex: if its negligent the insured recovers and insurer has to pay. The duty to defend is broader than the duty to indemnify – means that the insurance obligation extends to the entire claim even if their obligation extends to only 1/27th of the entire claim. on appeal the defendant is going to make a Strickland claim that will probably win and you will likely have to retry the case which would cost the gov’t time and money So they have standing to prevent the ruling from being tainted by conflict Rule is one of deference to the trial judge. plead into insurance. you can sort of get the sense though 54 .Downloaded From OutlineDepot. if intentional then insured doesn’t recover and insurer doesn’t have to pay) Question of do you want to plead into insurance or out of it. Wheat has given rise to fascinating challenges by prosecutors Positional conflicts are not conflicts Nothing permits a lawyer to tell two conflicting stories for each client. and its not reimbursable Defamation = the only part in the claim that was covered by insurance but they had to represent the client in defending against not only that claim but the 26 other claims too If you see something odd (like a defamation claim out of no where). up to them to determine if a conflict of interest will arise or not Series of follow up case. says the district court must be allowed substantial latitude in rejecting conflict of interests. some cause of action you think insurance would cover. see if you can find an insurance angle What business of the gov’t is it who a criminal defendant has as its representative? Gov’t has standing to raise defense side conflicts Reason you can do this is in the event there is a disabling conflict and you convict the defendant.com Correspondence between lawyer and Ds indicates that lawyer is aware of (1) accumulating evidence of Ps responsibility for accident. and (2) potential for an excess verdict and communicated that awareness to D o NOTES: Attorney is technically hired for the defense of the insured. If defendant doesn’t have enough resources.
and 2.4(f) FAIRNESS TO OPPOSING PARTY AND COUNSEL A Lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless: 1. if a statement of the employee or other agent. or regularly consults with the lawyer concerning the matter or if the agent has power to compromise or settle the matter b. directs.com Active conflict cases are concurrent representation cases (ex: wheat). The lawyer reasonably believes the person’s interests will not be adversely affected by refraining from giving such information §99 A REPRESENTED NONCLIENT – THE GENERAL ANTI-CONTACT RULE (1) a lawyer representing a client in a matter may not communicate about the subject of the representation with a nonclient whom the lawyer knows to be represented in the matter by another lawyer or with a representative of an organizational nonclient so represented as defined in §100. RULE 3. no reason to think you’d have one RELATIONS WITH THIRD PARTIES ON BEHALF OF CLIENTS RULE 4. and: (2) a current employee or other agent of an organization represented by a lawyer: a. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. §100 DEFINITION OF A REPRESENTED NONCLIENT Within the meaning of §99. would have the effect of binding the organization with respect to the proof of the matter §102 INFORMATION OF A NONCLIENT KNOWN TO BE LEGALLY PROTECTED 55 . a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL In representing a client. if the employee or other agent supervises. or c. a represented nonclient includes: (1) a natural person represented by a lawyer. The person is a relative or an employee or other agent of the client. unless: (a) the communication is with a public officer or agency to the extent stated in §101. if the acts or omissions of the employee or other agent may be imputed to the organization for purposes of civil or criminal liability in the matter. never said active conflicts go to concurrent conflicts.Downloaded From OutlineDepot. (b) the lawyer is a party and represents no other client in the matter (c) the communication is authorized by law (d) the communication reasonably responds to an emergency. under applicable rules of evidence. or (e) the other lawyer consents (2) Subsection (1) does not prohibit the lawyer from asserting the client in otherwise proper communication by the lawyer’s client with a represented nonclient.
director. there is a range of possibilities. you may not give them legal advice • Exception: tell them to get their own lawyer Snider v.CA RULE: Employee’s admission would be imputed only if the employee had authority to speak on the employer’s behalf (“managing-speaking agent” test) managing agent is an employee that exercises substantial discretionary authority over significant aspects of a corporation’s business. but you can probably employ persons to play the role of customers seeking services on the same basis as the general public. they sure as hell aren’t represented by the company’s counsel Who is represented by counsel? California rule says: officer. NOTES: Not a right that vests in clients. of the real human beings that are members of the entity are considered “represented” for purposes of legal contact? .Downloaded From OutlineDepot. they have a good case of hate and will work toward your profit. including organizational policy.4 NO CONTACT RULE Prohibits lawyers from using third parties to do things the rules prohibit lawyers from doing themselves 56 . Represented Person May not communicate without lawyer’s consent • Party’s own consent will not do • Exception: good faith under-cover investigation • KNOWLEDGE requirement Unrepresented Persons May communicate If your client’s interests differ from theirs or are reasonably likely to do so. it can be inferred by the circumstance. the right is in the lawyer to decide if you can or not What about entities.**Actual knowledge required before attorney held to violate this rule. depends on client sophistication There has never been a criminal case to suppress evidence as a penalty for a 4. In between written script with prepping a client to get on the stand and discussions about what might be discussed. More than a supervisory employee. And unless they have their own lawyer.Who do you talk to? Best choice is someone who just got fired who has a grudge. The reason they say you have to ask because if you don’t ask it can be used against you to say that you knew that they were represented and proceeded to question them anyway You cannot restrict non clients from not speaking to opposing counsel You can’t trick protected employees into doing things or saying things. association member or employee of association if the subject of the suit is the act of that person Everyone else? You as the plaintiff’s atty are free to call and fish information from them . but knowledge does not require an admission by the lawyer that they knew.The rule doesn’t say you have to ask if they are represented. a right that vests in lawyers Your client could consent all day long to talking to counsel for the other side and that amounts to nothing. .com A lawyer communicating with a nonclient in a situation permitted under §99 may not seek to obtain information that the lawyer reasonably should know the nonclient may not reveal without violating a duty of confidentiality to another imposed by law. managing agent. Snyder the case does. Superior Court .2 violation in a federal case MR 8.
A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction. and 2) for any other conduct. CHOICE OF LAW (a) Disciplinary Authority. if the lawyer knows or reasonably should know that the interest of such a person are or have a reasonable possibility of being in conflict with the interests of the client. and (2) when the lawyer knows or reasonably should know that the unrepresented nonclient misunderstands the lawyer’s role in the matter. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter. unless the rules of the tribunal provide otherwise. if the predominant effect of the conduct is in a different jurisdiction. Matter of Howes . 57 . it’s a prohibition on communication MR 4. concerning the identity and interests of the person the lawyer represents. a lawyer shall not state or imply that the lawyer is disinterested. the rules of professional conduct to be applied shall be as follows: 1) for conduct in connection with a matter pending before a tribunal. The lawyer shall not give legal advice to an unrepresented person. In any exercise of disciplinary authority of this jurisdiction. §103 DEALINGS WITH AN UNREPRESENTED NONCLIENT In the course of representing a client and dealing with a nonclient who is not represented by a lawyer: (1) the lawyer may not mislead the nonclient. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. the lawyer shall make reasonable efforts to correct the misunderstanding. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.Rule: Once attorney has been appointed to represent in litigation.3 DEALING WITH UNREPRESENTED PERSON In dealing on behalf of a client with a person who is not represented by counsel. the rules of the jurisdiction in which the tribunal sits. other than the advice to secure counsel. the rules of the jurisdiction in which the lawyer’s conduct occurred.5 DICIPLINARY AUTHORITY.com MR 8. the rules of that jurisdiction shall be applied to the conduct. the lawyer must take reasonable efforts to correct the misunderstanding when failure to do so would materially prejudice the nonclient. Its not a prohibition on interrogation. or. A lawyer may be subject to disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. regardless of where the lawyer’s conduct occurs. that attorney’s responsibility is to act on behalf of the client and to protect the client from compromising his case by waiving viable defense or from disclosing privileged information – attorney cannot fulfill this responsibility when opposing counsel freely comes into contact with the client without attorney’s knowledge You can be disciplined by any jurisdiction that licenses you Communication is broadly construed and it doesn’t matter who initiates. (b) Choice of Law.Downloaded From OutlineDepot. to the prejudice of the nonclient.
parties have right to keep their own documents until met with proper discovery requests or ordered to disclose them by Court o Factors requiring return of documents: Other side benefits from wrongdoing Sensitive. confidential info Improper gathering methods o Exception: Improper evidence OK if justification exists (fear for life) .Opinion: “this case is worth X. delay.Rule: Lawyer should not give advice to unrepresented person other than advice to obtain legal counsel. Schectman .” NOT VIOLATION MR 4. NOTES: You can listen and you can get facts but you must make sure they know you are not their lawyer.Downloaded From OutlineDepot.Rule: Regardless of whether some documents may be ultimately discoverable.Position: “my client will offer X.Holding: Conversation should have led attorney to know that his advice would be relied upon by opposing party. position .4 RESPECT FOR RIGHTS OF THIRD PERSON (a) In representing a client. you must not give them advice but you must tell them to get a lawyer Only advice you may give is get your own lawyer. Troutner .Rule: A lawyer shall not use means that have no substantial purpose other than to embarrass. or burden a third person. delay. or burden a third person Rule requires demonstration that prosecutor intended to appeal or engender bias RELATIONS WITH YOUR FIRM §9 LAW PRACTICE ORGANIZATIONS – IN GENERAL 58 . they must be returned to their original owner until discovery Embarrassing or Burdening Others Idaho State Bar v. especially when unrepresented person is not experienced in dealing with legal matters and might assume lawyer is disinterested . he gave him legal advice when he gave an estimate. go away When you’re at the premises where a person is being held.” VIOLATION . Lawyer did not only state factual matter to party.Holding: Even though documents were not subject to attorney-client privilege or work product. a lawyer shall not use means that have no substantial purpose othern than to embarrass. or use methods of obtaining evidence that violate the legal rights of such a person (b) A lawyer who receives a document relating to the representation of the lawyer’s client and relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender Receiving Evidence Pillsbury v. Warrick . even if you’re doing no business. you are acting in a lawyer duty so consider your actions those of a lawyer and publishable under the rules Distinguish opinion vs.com Hopkins v.
and i. and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures (4) With respect to a nonlawyer employee of a law firm. Only with respect to firm clients on whose matters the lawyer is actively and substantially working. (2) A lawyer employed by an entity described in Subsection (1) is subject to applicable law governing the creation. professional corporation. Prior to leaving the firm i. and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm. ratifies the conduct involved. and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures. Only after the lawyer has adequately and timely informed the firm of the lawyer’s intent to contact firm clients for that purpose. or has direct supervisory authority over the nonlawyer. operation.1 RESPONSIBILITIES OF PARTNERS. or as a member of a law firm constituted as a partnership. §11 A LAWYER’S DUTY OF SUPERVISION (1) A lawyer who is a partner in a law-firm partnership or a principal in a law firm organized as a corporation or similar entity is subject to professional discipline for failing to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to applicable lawyer-code requirements. (3) A lawyer is subject to professional discipline for another lawyer’s violation of the rules of professional conduct if: a. MANAGERS. with knowledge of the specific conduct. with knowledge of the specific conduct ratifies the conduct. as an employee of another lawyer or law firm. or ii. a lawyer leaving a law firm may solicit firm clients: a. or b. The lawyer orders or. (2) A lawyer who has direct supervisory authority over another lawyer is subject to professional discipline for failing to make reasonable efforts to ensure that the other lawyer conforms to applicable lawyer-code requirements. and ii. That conduct of a nonlawyer over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer. or b. The lawyer is a partner or principal in the law firm. and b. That the firm in which the lawyer practices has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. to the extent as any other nonfirm lawyer. and ii. The lawyer orders or. shall make reasonable efforts to 59 . or similar entity. or has direct supervisory authority over the other lawyer.Downloaded From OutlineDepot. The lawyer fails to make reasonable efforts to ensure: i. the lawyer is subject to professional discipline if either: a. The lawyer is a partner or principal in the law firm. (3) Absent an agreement with the firm providing a more permissive rule. management and dissolution of the entity.com (1) A lawyer may practice as a solo practitioner. AND SUPERVISORY LAWYERS (a) A partner in a law firm. MR 5. After ceasing employment in the firm. The nonlawyer’s conduct would be a violation of the applicable lawyer code if engaged in by a lawyer.
disclosure. and to remind client of its freedom to retain counsel of choice. or has direct supervisory authority over the other lawyer. P must plead and prove that D induced an at will employee to leave. Departing partner may not lure clients to new association by lying about client to rights with respect to choice of counsel. Intention to defraud not required . ratifies the conduct involved. Hanlon Rule: To recover for interference with at will employment K.Downloaded From OutlineDepot. lying to partners about plans to leave.Holding: Lawyer suspended for 2 years: o Mitigating factors: Did not intend to mislead Resolved money Had not been previously disciplined Not Mitigating: Mobile Lawyers Basic Restrictions Horowitz v. MR 5. or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices. and accounting to each other. Fiduciary Responsibility to Firm In re Curran . and abandoning firm on short notice.Rule: Departing partner may inform client with whom they have a prior professional relationship about impending withdrawal.§9 Reeves v. Moskowitz . and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.Rule: Lawyers in partnership have fiduciary duties of loyalty. Soliciting Former Clients and Colleagues .2 RESPONSIBILITIES OF A SUBORDINATE LAWYER (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. requires more than merely extending job offer to employee that induces employee Other partners doing same thing Though he had earned money Tried to make excuses o 60 . with knowledge of the specific conduct. new practice.com ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct (c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or.
Agreements on Restricting Practice .6 . as an agent of your firm.§13 Howard v. trustworthiness or fitness as a lawyer in other respects.MR 5. o May not use trade secret client data in improper manner to directly solicit clients for D’s gain/P’s detriment if not in furtherance of right to engage in fair competition. as well as to your client You must discharge both sets of duties simultaneously For purposes of discipline (but not malpractice liability) you may rely on reasonable judgment calls of supervising attorneys If you need supervision or assistance of a more experienced attorney to discharge your duty of care to a client.Holding: Departing partners may compete but then will not receive excess retirement pay – interest of public is served by allowing counsel to continue to practice in field while still protecting firms by placing a reasonable price on competition MR 8.6 RESTRICTIONS ON RIGHT TO PRACTICE A lawyer shall not participate in offering or making: (a) a partnership. You owe fiduciary duties to your firm.3 REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty. shall inform the appropriate professional authority.Rule: Agreement among partners imposing reasonable cost on departing partners who compete with law firm in a limited geographical area is not inconsistent with MR and is not void on its face as against public policy . operating. employment. the duty of care requires you to get it 61 .PAGE 74 of other outline MR 5. except an agreement concerning benefits upon retirement. or (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client’s controversy.6 or information gained by a lawyer or judge while participating in an approved lawyer’s assistance program.com to terminate at will employment. (c) This Rule does not require disclosure of information otherwise protected by Rule 1. or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship.Downloaded From OutlineDepot. Holding: Punitive damages owed for disrupting business and violating trade secret problem Trade Secrets Problem . Babcock . May offer better contract terms but may not perform independently wrongful act. shareholders. (b) A lawyer 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.
1 says we shall be competent big partner takes a junior associate along to a client and says we’re the best franchising law firm.Holding: Employer must present evidence whether (1) Partner ratified associate’s negligence. the partner has all these hours of work. only thing we get as junior associates is respondeat superior and reasonable determinations by senior lawyers 1. passes off the client to the junior who says they don’t know what they’re doing and the senior says “research it”.Rule: Lawyer liable for employees mistake if he ratified it. Why is Kramer doing this? To go after Nowak rather than claiming it on his own insurance Pollack – the firm owes fiduciary obligations to the client.Downloaded From OutlineDepot. equal employment opportunity commission said that looked like age discrimination. you get a note from the committee that tells you what they’ve decided to do with you 62 . they had a policy of basically kicking partners into semi inactive status when they got to be a certain age to make room for new partners. say there’s all these partners but there’s a committee that runs things. 1000 lawyer firm. breach your duties. redirect your boss’s energy and turn it all into their idea The model rules are relatively clear that the rules apply to all of us. you have to make a pitch to the boss and say this is against your own self interest by the rules if you’re going to prejudice the client. Give notice to your client to say “you have X days to get the money to us or we will discontinue representation”.com Future representation agreements – a way to buy off a firm from being in future representation against a same company Superior-Subordinate Relations – PAGE 75 OTHER OUTLINE Kramer v. they’re partners. tort law applies to all of us. so no harm in saying owe a duty to the firm and owe a duty to the client because those will never be in conflict That is legally correct. junior has no experience. eeoc only applies to employees look at reality of practice. work pro bono on the weekend. the lawyer owes fiduciary obligations to the client. incompetent to just assume someone is looking over your shoulder without actually knowing for sure if someone is duty to seek supervision exists conventional distinction between partners and associates. she assumed that someone was watching and looking at the work you still have to satisfy your duty of care. its highly unlikely recognizing obligations from the lawyer to the firm will create a conflict since both entities owe these obligations to the client. (2) whether miscalculation of prejudgment interest could have been discovered through reasonable inquiry Are you responsible for malpractice to your employer? Yes. but the firm’s first priority is to get paid and might say “until I get paid no more work” and then you’re not doing good for your client What do you do there? The rules don’t tell you. they say no. or was negligent in failing to ensure associate was doing work in compliance with rules . Nowak .
tortious conduct must be generally foreseeable consequence of employer’s activity foreseeability means that in the context of the particular enterprise. or collect an unreasonable fee or an unreasonable amount for expenses. an employee’s conduct is not so unnatural or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. The factors to be considered in determining the reasonableness of a fee include the following 1) the time and labor required. before or within a reasonable time after commencing the representation. the novelty and difficulty of the questions involved.2(b) is a defense to discipline on 2 conditions 1) question must be arguable 2) instruction must be reasonable Not a defense to tort law or contract law He loses b/c court doesn’t think the question is arguable if its communication or not Activities outside the Firm – What is in the Scope and Course of Employment Shapiro .com Howes – got a call from a criminal defendant but said he didn’t do anything wrong b/c all he did was listen and said that wasn’t communicating. reputation.Downloaded From OutlineDepot. and the skill requisite to perform the legal service properly 2) the likelihood.5 FEES (a) A lawyer shall not make an agreement for.2(b) that says a subordinate does not violate the rules if they act in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty .Rule: To be liable for employee’s act. Then said I’m a subordinate lawyer under 5.5.Where employee conducting own business with that of employer. inquiry required as to which business he was engaged in at time of inquiry – He worked for a civil firm and did criminal work on the side. is the firm liable for something he did for a criminal case – Depends on how you hold yourself out as and the degree to which you do that to – When the retainer agreement is on the firm letterhead. that’s when the association seems to be crystal clear ECONOMICS OF PRACTICE MR 1. if apparent to the client. except when the lawyer will charge a regularly represented client on the 63 . preferably in writing. . and ability of the lawyer or lawyers performing services 8) whether the fee is fixed contingent (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client. charge. that the acceptance of the particular employment will preclude other employment by the lawyer 3) the fee customarily charged in the locality for similar legal services 4) the amount involved and results obtained 5) the time limitations imposed by the client or by the circumstances 6) the nature and length of the professional relationship with the client 7) the experience.
Remains property of client until attorney applies it to charges for services actually rendered c.com same basis or rate. including the share each lawyer will receive. and whether such expenses are to be deducted before or after the contingent fee is calculated. will presume any advance fee is a deposit from which attorney will be paid for specific legal services i. Upon conclusion of a contingent fee matter. if there is a recovery. including the percentage or percentages that shall accrue to the lawyer in the event of settlement. ct. charge or collect: (1) any fee in a domestic relations matter. Can put it in your account or firm’s account (2) Security Retainer a. trial or appeal. Attorney may not treat fee as earned simply by labeling it earned on receipt or referring to it as engagement retainer. must describe in writing the nature of the benefit being provided to a specific client f. the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support. showing the remittance to the client and the method of its determination. Lawyer may also accept fee for placing client’s work at top of attorney’s priority list e. not true retainer 64 . Entitlement to fee exists whether or not the services are ever rendered c. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. If money is yours (true retainer) client has no entitlement to it and you do not have to place it into client trust account i. litigation and other expenses to be deducted from the recovery. Types of Fees Three types of retainers (1) Classic/ True Retainer a. Put this in your account to ensure client has enough $ to pay you at any given time b. Money given as retainer is not present payment for future services i. Payment of sum to secure availability over period of time b. (d) A lawyer shall not enter into an agreement for. and (3) the total fee is reasonable. A contingent fee agreement shall be in a writing signed b the client and shall state the method by which the fee is to be determined. (c) A fee may be contingent on the outcome of the matter for which the service is rendered. Retainer held by attorney to secure payment of fees for future services that the attorney is expected to render i. Any unearned funds returned to client d. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. and the agreement is confirmed in writing. the lawyer shall provide the client with a written statement stating the outcome of the matter and.Downloaded From OutlineDepot. or (2) a contingent fee for representing a defendant in a criminal case (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation (2) the client agrees to the arrangement. Provides benefit to client where it guarantees attorney will make themselves available to client and forego other employment opportunities as result of time commitments/ conflicts d. Default is security retainer. or property settlement in lieu thereof. Unless fee agreement expressly states that fee is an engagement retainer and explains how fee is earned upon receipt.
When lawyer receives money (ie: settlement award) lawyer must notify client and any third person with interest (creditor of client) and deliver to that party any money they are entitled to receive • Trust Account Basics: o All funds you receive/ hold for client must be deposited into bank acct. Very common for criminal defense attorneys – want to be paid up front because odds are that client is going to prison and then he would not have incentive to pay you b. Agreement where client pays in advance for some or all of services that attorney is expected to perform on client’s behalf c. Philip Kay -RULE: Lawyer may not divide a fee for legal services unless written disclosure and consent from client is obtained.must always balance account • Courts look to language of retainer to ascertain what type it is – look beyond the name of the retainer • Notes re Model Rules: o 1. Only true retainers belong to lawyer on receipt f. that is clearly labeled as client trust bank acct. Every fee is refundable as long as it is not entirely earned e. 65 .Downloaded From OutlineDepot.will not realize he can fire attorney and still get $ back (3) Advance Payment Retainer a.advisable only in trust in all jurisdictions e. Differs from security retainer in that ownership of funds is intended to pass to attorney at time of payment d. Cannot K around default retainer rules ii. must take them out of client trust acct as you earn them Ethically required to withdraw money as soon as you reasonably can o Must deliver goods promptly to client if they ask for it o Must tell client how much money/property you are holding for them or what you have done with it o Must account for all money to state Bar if they inquire o For at least 5 years. Must keep down to $ record of what went in and came out. on receipt Firm or lawyer’s account Security Retainer Provide lawyer assurance that money will be there when earned Client. May NOT suggest advance fees are non-refundable! i.Lawyer in CA Jurisdictions differ. Client has right to know how attorneys fees will be determined and basis for sharing fees by attorneys. lawyer takes only when earned Trust account only Advance Payment Pay lawyer up front for work to be performed later (may be flat fee or partial fee) Jurisdictions differ. must keep complete records of all client $ entrusted to you Purpose Belongs to Deposit in True Retainer Secure availability (no work required) Lawyer.com K term stipulating that payment is earned on receipt is not effective if the payment is for the lawyer’s work in a particular matter rather than simply to secure lawyer’s availability i. o Must promptly notify client when you receive goods on their behalf o Account must be in CA unless client consents in writing o Must identify property received on behalf of writing and immediately put them into safe deposit box/ place of safekeeping o NO COMMINGLING: depositing money that belongs to firm into client trust acct. FEE DIVISION Arthur Chambers v. Attorney may not label advance fees non-refundable because it misleads client. not allowed! When you earn fees.
to be withdrawn by the lawyer only as fees are earned or expenses incurred. Other property shall be identified as such and appropriately safeguarded. a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and. Contingent on a specified result in a divorce proceeding or a proceedings concerning custody of a child (2) Unless the contract construed in the circumstances indicates otherwise. a lawyer shall promptly notify the client or third person. surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.Downloaded From OutlineDepot. or elsewhere with the consent of the client or third person. a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests. §34 REASONABLE AND LAWFUL FEES A lawyer may not charge a fee larger than is reasonable in the circumstances or that is prohibited by law. upon request by the client or third person. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation (b) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on that account.com RULE 1. (d) Upon receiving funds or other property in which a client or third person has an interest. The lawyer may retain papers relating to the client to the extent permitted by other law. but only in an amount necessary for that purpose. unless the contract violates §34 or another provision of this Restatement or the size of payment of the fee is: a.15 SAFEKEEPING PROPERTY (a) a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.16(d) DECLINING OR TERMINATING REPRESENTATION (d) Upon termination of representation. the lawyer is entitled to receive the specified fee only when and to the extent the client receives payment. shall promptly render a full accounting regarding such property (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated. when a lawyer has contracted for a contingent fee. such as giving reasonable notice to the client. Contingent on success in prosecuting or defending a criminal proceeding. Except as stated in this rule or otherwise permitted by law or by agreement with the client. allowing time for employment of other counsel. 66 . RULE 1. the property shall be kept separate by the lawyer until the dispute is resolved. (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance. §35 CONTINGENT-FEE ARRANGEMENTS (1) A lawyer may contract with a client for a fee the size or payment of which is contingent on the outcome of a matter. or b. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
when a lawyer requests and receives a fee payment that is not for services already rendered. the repayment of which to the lawyer may be contingent on the outcome of the matter (3) A lawyer may not. §37 PARTIAL OR COMPLETE FORFEITURE OF A LAWYER’S COMPENSATION A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer’s compensation for the matter. Considerations relevant to the question of forfeiture include the gravity and timing of the violation. and b. except that a. the client may avoid it unless the lawyer shows that the contract and the circumstances of its formation were fair and reasonable to the client. its willfulness. not the client’s lawyer. If the contract or modification is made beyond a reasonable time after the lawyer has begun to represent the client in the matter (see §38(1).com §36 FORBIDDEN CLIENT-LAWYER FINANCIAL ARRANGEMENTS (1) A lawyer may not acquire a proprietary interest in the cause of action or subject matter of litigation that the lawyer is conducting for a client. §38 CLIENT-LAWYER FEE CONTRACTS (1) Before or within a reasonable time after beginning to represent a client in a matter. (2) The validity and construction of a contract between a client and a lawyer concerning the lawyer’s fees are governed by §18. and the adequacy of other remedies. payments that the law requires an opposing party or that party’s lawyer to pay as attorney-fee awards or sanctions are credited to the client. may be enforced by either party if the contract meets other applicable requirements. except that the lawyer may: a. §18 CLIENT-LAWYER CONTRACTS (1) A contract between a lawyer and client concerning the client-lawyer relationship. except that the lawyer may make or guarantee a loan covering court costs and expenses of litigation. any other threatened or actual harm to the client. that payment is to be credited against whatever fee the lawyer is entitled to collect. a lawyer must communicate to the client. before the lawyer ceases to represent a client. a lawyer may not charge separately for the lawyer’s general office and overhead expenses b. and b. the basis or rate of the fee. and c. including a contract modifying an existing contract. its effect on the value of the lawyer’s work for the client. (3) Unless a contract construed in the circumstances indicates otherwise: a. If the contract is made after the lawyer has finished providing services.Downloaded From OutlineDepot. unless the communication is unnecessary for the client because the lawyer has previously represented that client on the same basis or at the same rate. make an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. in writing when applicable rules so provide. absent a contrary statute or court order. Acquire a lien as provided by §43 to secure the lawyer’s fee or expenses. the client may avoid it if the client was not informed of facts needed to evaluate the 67 . Contract with the client for a contingent fee in a civil case except when prohibited as stated in §35 (2) A lawyer may not make or guarantee a loan to a client in connection with pending or contemplated litigation that the lawyer is conducting for the client.
a lawyer may not employ collection methods forbidden by law. the discharge or withdrawal is not attributable to misconduct of the lawyer b. §40 FEES ON TERMINATION If a client-lawyer relationship ends before the lawyer has completed the services due for a matter and the lawyer’s fee has not been forfeited under §37: (1) a lawyer who has been discharged or withdraws may recover the lesser of the fair value of the lawyer’s services as determined under §39 and the ratable proportion of the compensation provided by any otherwise enforceable contract between lawyer and client for the services performed. §43 LAWYER LIENS (1) Except as provided in Subsection (2) or by statute or rule. §42 REMEDIES AND THE BURDEN OF PERSUASION (1) A fee dispute between a lawyer and a client may be adjudicated in any appropriate proceeding. use confidential information when not permitted under §65.com appropriateness of the lawyer’s compensation or other benefits conferred on the lawyer by the contract (2) A tribunal should construe a contract between client and lawyer as a reasonable person in the circumstances of the client would have construed it. or harass the client. the lawyer has performed several services. A lawyer may decline to deliver to a client or a former client an original or copy of any document prepared by the lawyer or at the lawyer’s expense if the client or former client has not paid all fees and disbursements 68 . of the existence and terms of any fee contract.Downloaded From OutlineDepot. an arbitration to which both parties consent unless applicable law renders the lawyer’s consent unnecessary. a suit for a refund by a client. when relevant. and the extent and value of the lawyer’s services. §39 A LAWYER’S FEE IN THE ABSENCE OF A CONTRACT If a client and lawyer have not made a valid contract providing for another measure of compensation. a lawyer does not acquire a lien entitling the lawyer to retain the client’s property in the lawyer’s possession in order to secure payment of the lawyer’s fees and disbursements. or in the court’s discretion a proceeding ancillary to a pending suit in which the lawyer performed the services in question. (2) In any such proceeding the lawyer has the burden of persuading the trier of fact. except that (2) the tribunal may allow such a lawyer to recover the ratable proportion of the compensation provided by such a contract if: a. the making of any disclosures to the client required to render a contract enforceable. a client owes a lawyer who has performed legal services for the client the fair value of the lawyer’s services. and c. including a suit by the lawyer to recover an unpaid fee. allowing contractual compensation would not burden the client’s choice of counsel or the client’s ability to replace counsel §41 FEE COLLECTION METHODS In seeking compensation claimed from a client or former client.
if apparent to the client. The lawyer may not unreasonably impede the speedy and inexpensive resolution of any dispute concerning those fees and disbursements or the lien. Acquisition of such a security interest is a business or financial transaction with a client within the meaning of 126. If you want to say “I took title to the money”. and grant such other relief as justice may require.000 to try first offense DUI since had never done one of those cases before) no question he did all the work. the novelty and difficulty of the questions involved.000 for a DUI 69 . The lawyer may contract in writing with the client for a lien on the proceeds of the representation to secure payment for the lawyer’s services and disbursements in that matter b. must not charge unreasonable fee or charge unreasonable expenses 8 factors on page 2 1) the time and labor required. client and lawyer may agree that the lawyer shall have a security interest in property of the client recovered for the client through the lawyer’s efforts. The lien applies only to the amount of fees and disbursements claimed reasonably and in good faith for the lawyer’s services performed in the representation and d. The lien becomes binding on a third party when the party has notice of the lien c.Downloaded From OutlineDepot.com due for the lawyer’s work in preparing the document and nondelivery would not unreasonably harm the client or former client. (4) With respect to property neither in the lawyer’s possession nor recovered by the client through the lawyer’s efforts.50. and the skill requisite to perform the legal service properly 2) the likelihood. release all or part of the property to the client or lawyer. you must be able to demonstrate the benefit the client received for the money. the lawyer may obtain a security interest on property of a client only as provided by other law and consistent with §18 and 126. that the acceptance of the particular employment will preclude other employment by the lawyer 3) the fee customarily charged in the locality for similar legal services 4) the amount involved and results obtained 5) the time limitations imposed by the client or by the circumstances 6) the nature and length of the professional relationship with the client 7) the experience. but outside of the reasonable range of what lawyers that do this work charge Lawyers get fees only one way – they confer benefits on clients. (3) A tribunal where an action is pending may in its discretion adjudicate any fee or other dispute concerning a lien asserted by a lawyer on property of a party to the action. Substantive Economics Regulation – fees must be reasonable. and ability of the lawyer or lawyers performing services 8) whether the fee is fixed contingent cannot charge to learn how to do something new on the case (ex: civil litigator. he didn’t pad the bill. charged the client $50. there is no such thing as money without benefit It says that you have to recite in writing the reasons why mere availability without obligation to do work is a benefit to the client b/c that is what you’re proposing In the Matter of Laurence Fordham . provide for custody of the property. reputation. (2) Unless otherwise provided by statute or rule. as follows: a.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not (1) except as authorized by these Rules or other law. establish an office or other systematic or continuous presence in this jurisdiction for the practice of law. with reasonable experience. or a person the lawyer is assisting.6 MR 8. is authorized by law or order to appear in such proceeding or reasonably expects to be authorized (3) are in or reasonably related to a pending or potential arbitration. or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction (c) A lawyer admitted in another US jurisdiction. or assist another in doing so. mediation. even if you don’t hurt anyone MR 5. if the lawyer. (d) A lawyer admitted in another US jurisdiction. What can’t be substituted by computers and outsourcing? Trial advocacy. or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission. may provide legal services in this jurisdiction that: (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission.com Rule: Client should not be expected to pay for education of lawyer when he spends excessive amounts of time on tasks which. Do more than spit out rules. and not disbarred or suspended from practice in any jurisdiction who actively participates in the matter (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction. or other alternative dispute resolution proceeding in this or another jurisdiction. and not disbarred or suspended from practice in any jurisdiction.3 70 . MULTIJURISDICTIONAL PRACTICE OF LAW (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.5 UNAUTHORIZED PRACTICE OF LAW.Downloaded From OutlineDepot. become matters of routine Warhaftig Rule: You can’t pull funds out of that client’s retainer early before you earn the fees. RELATIONS WITH OTHER LAWYERS Hierarchy in rules exist: MR 3. That’s unauthorized practice of law.3 MR 1. or (2) are services that the lawyer is authorized by federal or other law to provide in this jurisdiction Computer programs that do taxes and wills and other various legal things for one flat rate to buy the program Is computer software like that practicing law? Yes.
trustworthiness or fitness as a lawyer in other respects (c) engage in conduct involving dishonesty. If a lawyer. In re James H. has offered material evidence and the lawyer comes to know of its falsity.com MR 8. that the lawyer reasonably believes is false.Downloaded From OutlineDepot. shall inform the appropriate professional authority (b) a lawyer 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. ETHICS IN ADVOCACY MR 3. trustworthiness or fitness as a lawyer in other respects. or (3) offer evidence that the lawyer knows to be false. or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. including. the lawyer’s client. disclosure to the tribunal. Claims Between Attorneys Alice Whalen v. or a witness called by the lawyer. deceit or misrepresentation (d) engage in conduct that is prejudicial to the administration of justice (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. Conway. Foy. knowingly assist or induce another to do so.3 REPORTING PROFESSIONAL MISCONDUCT (a) a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty. other than the testimony of a defendant in a criminal matter. (c) This rule does not require disclosure of information otherwise protected by Rule 1.4 MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct. fraud. A lawyer may refuse to offer evidence. Bright line rule. Himmel Rule: Lawyer must report other lawyer’s violation of MR. 71 . the lawyer shall take reasonable remedial measures. MR 8.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.3 CANDOR TOWARD TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. or do so through the acts of another (b) commit a criminal act that reflects adversely on the lawyer’s honesty. Holt-Harris & Mealy Rule: Lawyer who hires second lawyer has duty to supervise the second lawyer’s actions. DeGraff. if necessary. discipline may be appropriate even if no dishonest motive for misconduct exists and client approval of attorney’s failure to report does not immunize lawyer from disciplinary action.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding. (3) A lawyer may refuse to offer testimony or other evidence that the lawyer reasonably believes to be false. disclosure to the tribunal. MR 3. continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1. including. Suspension appropriate when lawyer knows that false statements submitted to court or material information is being properly withheld and takes no remedial action. whether or not the facts are adverse. counsel or assist a witness to testify falsely. the lawyer must take reasonable remedial measures and may disclose confidential client information when necessary to take such a measure. lawyer shall take reasonable remedial measures.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter.6. William Casey Rule: Lawyer must disclose to court if client is making false representation.com (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage. and apply even if compliance requires disclosure of information otherwise protected by Rule 1. Attorney should use narrative approach to deal with these 2 conflicting rights.Downloaded From OutlineDepot. except for an open refusal based on an assertion that no valid obligation exists 72 . People v. §120 FALSE TESTIMONY OR EVIDENCE (1) A lawyer may not: (a) knowingly counsel or assist a witness to testify falsely or otherwise offer false evidence (b) knowingly make a false statement of fact to the tribunal (c) offer testimony or other evidence as to an issue of fact known by the lawyer to be false (2) if a lawyer has offered testimony or other evidence as to a material issue of fact and comes to know of its falsity. Disciplinary Risks Warrick: Rule: If lawyer has offered material evidence and comes to know of its falsity. destroy or conceal a document or other material having potential evidentiary value. is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures. Holding: Narrative approach represent best accommodation of competing interest Candor Towards Trubunal People of CO v. even if the lawyer does not know it to be false. Johnson Rule: D has a constitutional right to be heard. (c) Knowingly disobey an obligation under the rules of a tribunal. lawyer has duty not to introduce perjured testimony.6 (d) In an ex parte proceeding. A lawyer shall not counsel or assist another person to do any such act (b) falsify evidence. Holding: Respondent had duty to court to disclose that his client was impersonating SJ in criminal proceedings. if necessary. or offer an inducement to a witness that is prohibited by law. a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision.
counsel and has been given reasonable opportunity to obtain counsel (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights. may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation. or state a personal opinion as to the justness of a cause. and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information Handling Evidence People v. make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party (e) In trial. the statutory privilege does not bar revelation of the original location or condition of evidence in question. and. v. in connection with sentencing. allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. Further violations will result in sterner sanctions Washington State Physicians Ins. unless a specific and clear objection is made. and the procedure for obtaining.Downloaded From OutlineDepot. the culpability of a civil litigant or the guilt or innocence of an accused. Rule: Discovery rules to not allow party to produce only what it agreed to produce or was ordered to produce. Holding: Observation by defense counsel of investigator that is the product of privileged communication. Dobson & Welch Rule: Mutual enmity does not excuse break down of decorum in any phase of litigation Holding: Sanctions for all lawyers involved – censured and admonished. assert personal knowledge of facts in issue except when testifying as a witness. his observations derived from privileged communications are protected. Michael Meredith Rule: Whenever defense counsel removes or alters evidence. All relevant documents must be produced – party does not have option of determining what it wants to produce or answer. must answer all interrogatories and all requests for production.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause (b) make reasonable efforts to assure that the accused has been advised of the right to. Holding: Lawyer sanctioned for failure to produce document MR 3. Here. or (f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client. such as the right to a preliminary hearing (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. disclose to the defense and to the tribunal all unprivileged 73 . If a party does not want to respond. Discovery Evidence Redwood v. Fisons Corp. the defense investigator removed the wallet and thereby frustrated any possibility that police might later discover it in trash can. Conduct of defense precluded prosecution from ascertaining crucial fact of location of wallet. the credibility of a witness. it must move for a protective order. If defense counsel leaves the evidence where he discovers it.com (d) In pretrial procedure.
§119 PHYSICAL EVIDENCE OF A CLIENT CRIME With respect to physical evidence of a client crime. and (3) there is no other feasible alternative to obtain the information (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose. the lawyer must notify prosecuting authorities of the lawyer’s possession of the evidence or turn the evidence over to them. law enforcement personnel. employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3. except when the prosecutor is relieved of this responsibility by a protective order of the tribunal (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution. 74 .6 or this Rule. take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence. refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care or prevent investigators. a lawyer: (1) may. when reasonably necessary for purposes of the representation.com mitigating information known to the prosecutor.Downloaded From OutlineDepot. but (2) following possession under Subsection (1).