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PROFESSIONAL RESPONSIBILITY Chapter 2: Lawyer Liability
1. HISTORY OF LAWYER DISCIPLINE - Most common problems were fee disputes and delays in completing work/low quality Performance - Problems in sanctions and disciplining are that they‟re light and inconsistent 2. GROUNDS FOR DISCIPLINE - Can be disciplined for violating code whether or not violation occurs in course of law practice 3. REPORTING MISCONDUCT BY OTHER LAWYERS A. Duty to Report Misconduct - Rule 8.3 – 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, trustworthiness or fitness as a lawyer in other respects, 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. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program

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- Knowledge must be more than mere suspicion that misconduct occurred. Question is if reasonable lawyer in circumstances would have firm opinion that conduct more likely occurred than not - If lawyer learns of misconduct during adversary proceeding, lawyer can wati to report it until proceeding is over if deferral is necessary to protect a client‟s interests B. Lawyers’ Responsibility for Ethical Misconduct by Colleagues and Superiors - Rule 5.1 – Responsibilities of Partners, Managers, Supervisory Lawyers
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to 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, with knowledge of the specific conduct, ratifies the conduct involved; or

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(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

- Rule 5.2 – 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.

- Problem 2-1: The Little Hearing - Under 5.2, the lawyer is bound by the rules, including 1.1 competent representation. Just because her supervisor told her to go to the hearing doesn‟t mean it was a reasonable resolution of question of duty. She knows she‟s ill prepared at best, and should refuse to go to the hearing 2. CIVIL LIABILITY OF LAWYERS A. Legal Malpractice - Professional misconduct alleged to have caused harm to another person - Client must assert lawyer had duty to P, failed to exercise competence and diligence

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normally exercised by lawyers in similar circumstances, and breach caused harm - Must prove client would have prevailed in case but for lawyer‟s conduct - Lawyer may have to pay damages, injunction could issue, return of property etc. - Breach of Fiduciary Duty - P must prove but for misconduct, P would have gotten favorable judgment or settlement in case, or that P suffered another compensable harm D. Disqualification for Conflicts of Interest - Courts influenced by ethics rules on conflicts but also follow their own common law standards

Protection of Information Relating to Representing a Client . . mitigate 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.Rule 1.5 PROFESSIONAL RESPONSIBILITY Chapter 3: Client Confidentiality A. the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).6 – Confidentiality of Information: (never required to disclose. (3) to prevent. Basic Principle of confidentiality . but may under b) a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. (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. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm.

Comment 4 – Prohibition also applies to disclosures that don‟t reveal protected info. but could reasonably lead to discovery of such info by 3rd person. except info generally known.A fundamental principle in the clientlawyer relationship is that.Comment 2. info learned from client and . or to respond to allegations in any proceeding concerning the lawyer's representation of the client. (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.** NC‟s rule state‟s a lawyer is allowed to disclose confidence to prevent any crime . or (6) to comply with other law or a court order. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved. the lawyer must not reveal information relating to the representation . . Hypotheticals allowed if listener won‟t be able to ascertain identify of client or situation . in the absence of the client's informed consent.6 (4) to secure legal advice about the lawyer's compliance with these Rules.Info that must be protected as confidential: info relating to matter which lawyer is representing. personal info of the client that client wouldn‟t want disclosed.

Client Frauds and Crimes that Cause Financial Harm . info acquired before representation begins and after it terminates.Policy behind confidentiality rule –facilitates open communication between lawyers and clients.Revelation of Past Criminal Conduct .Lawyers PROHIBITED from Advising or Assisting Clients‟ Crimes and Frauds .Reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer harm later if the lawyer fails to act now to eliminate threat . Exceptions to the Duty to Protect Confidences .7 interviews/docs/photos/observation. it doesn‟t matter whether harm will be perpetrated by client or another person .Lawyers should keep confidential past criminal activity. clients would be reluctant to confide in attny if they thought info would leak out B.Rule allows lawyer to reveal confidential information to prevent reasonably certain death or substantial bodily harm. notes that the lawyer creates about the matter .Risk of Future Injury or Death . Under this rule. bc harm can‟t be prevented .

lawyer may not reveal information under 1.8 .Lawyers MAY reveal information about the client to prevent future crime or fraud over money or property or to rectify injury due to past crime or fraud over money or property only if client has used lawyer‟s services in committing the act .Sarbanes Oxley Act was enacted after Enron to prevent corporate fraud. conduct . so lawyer may report fraud to SEC .Rule 1.6b3 .Fraud – deliberate deception. lawyer must withdraw from representation and notify SEC of its withdraw due to professional considerations .2 – Lawyer SHALL NOT counsel client to engage.If criminal or fraudulent conduct is in past and client has hired the lawyer for representation relating to that conduct. requires layers who practice before the SEC to report info ab securities fraud to senior officials in a corporation and if those officials don‟t act promptly.A lawyer practicing in a state using the Model Rules and who practices before the EC must observe all applicable rules. Federal law preempts state law. or assist a client in conduct that the lawyer knows is criminal or fraudulent .

9 even if fraud was committed w/o assistance of lawyer‟s services .Chart on 208 is great! .Court order or other law requiring disclosure trumps obligation to protect confidences C.8b: A lawyer shall not use info relating to representation of a client to the disadvantage of the client unless client gives informed consent.Rule doesn‟t prohibit uses that don‟t disadvantage the client .Rule 1. except as permitted or required by these rules .Revealing Confidences to Comply with Other Law or Court Order .Revealing Confidences to obtain Advice about Ethics – totally fine . Use or Disclosure of Confidential Information for Personal Gain or to Benefit Another Client .

nationality.Rule 1.Offering Advice as Basis of Relationship . Otto. He failed to do the minimum research an ordinarily prudent attorney would have done before giving opinion . religion. .Court found a relationship existed and that there was malpractice. disability or another protected category in decisions about who to represent . sex. was told there was no case.Choosing Clients . relied on that advice in failing to pursue the claim for medical malpractice.10 PROFESSIONAL RESPONSIBILITY Chapter 5: Relationship Between Clients and Lawyers A. there‟s a lawyer-client relationship there.Just giving advice to someone can make them a client .A lawyer can take on a matter in an unfamiliar field if she has time and resources to get up to speed.If a person comes to you for legal advice and you give it. and Keefe (1980) . Can bill for the time spent doing so.A lawyer can‟t discriminate on race. age. Miller . She went to Miller for legal advice. He neither suggested she get 2nd opinion nor informed her of his lack of expertise.Togstad v. Formation of the Relationship . Miller. Vesely.1 requires competent representation .

Performance has to be that implicitly allows lawyer to .6th Amendment requires a criminal defendant be given a lawyer whose work meets minimum standard of being effective . skill. Communication. Lawyers Responsibilities as Agents . and case law – civil cases .1) . That requires legal knowledge.Competence (Rule 1. court rules.1 A lawyer shall provide competent representation to a client.Rule 1.No lawyer should approach any task without knowledge of the applicable statutes. We‟re not taking the case” B.Avoid situation by saying “I don‟t have an opinion on the issue. Honesty. Lawyer’s Duties of Competence.Client can give attorney express authority to act on their behalf or can give general instruction do certain things C. thoroughness and preparation reasonably necessary for the representation .Competence in Criminal Cases .Unlikely a D can win an ineffective assistance appeal. and Dilligence .11 should have known wife was acting on behalf of husband .

12 awful and D also has to show better representation would have made a difference .3 – lawyer shall act w/reasonable diligence and promptness in representing a . and error had to prejudice outcome . with deference to counsel.A decision not to investigate must be assessed for reasonableness in all circumstances.Rule 1. (1984) . though some existed. In fact. mental exam) .Diligence .Attorney made strategic choice to rely on P‟s acceptance of responsibility for his crimes. introducing some evidence may have hurt defendant (rap sheet.Scrutiny of performance must be deferential to attorney . attorney presented no evidence of mitigating factors. He was given a life sentence and he appealed for ineffective counsel .Strickland v.Standard – P must show serious errors by counsel and that errors deprived him of a fair trial .At hearing to determine either death or life sentence. Washington.

Contractual Duties may create more obligations than rules would require . deceit.Rule 1.Rule 1. that may be relevant to the client‟s situation .Candor and Communication . fraud. and misrepresentation . about which a client must make a decision.2c allows lawyer to limit scope of representation if limitation is reasonable and the client gives consent .Rule 2.4 requires that lawyer provide info to client about matters that require informed consent. about the status of a matter. In rendering advice. and about matters on which the client has requested info .13 Client . economic.Rules don‟t explicitly state a lawyer must be honest with client.Candor in Counseling .1 describes role of lawyer as counselor: in representing a client.4c prohibits dishonesty. a lawyer may refer not only to law but to other considerations such as moral. social and political factors. a lawyer shall exercise independent professional judgment and render candid advice.Rule 8. but drafters intended that lawyers should generally be truthful .Clients can sue for breach of fiduciary duty in tort if injured by a dishonest lawyer .

hold property). personal decisions) .2 and communication requirements of Rule 1.Clients who may have Mental Disabilities .Rule 1.Jones v.SC says indigent D has no right to compel appointed counsel to press nonfrivolous points raised by client if counsel uses judgment and decides not to. even contrary to client‟s wishes). lawyer might petition court to appoint a guardian ad litem (empowered to speak for client.14 D.Multiplicity of assignments of errors dilutes and weakens a good case .The Competent Adult Client .If it seems necessary to give someone else legal authority over the client. financial.14 .Clients with Diminished Capacity . conservator (power to manage financial affairs of client who thereby loses power to buy. Barnes (1983).4 allocate decision making between lawyers and clients . Who Calls the Shots? . Otherwise ability of counsel is undermined . SCOTUS . guardian (broad authority over medical. sell.Rule 1.Comment 6 says lawyer should make some assessment of client‟s capacity .

In many jurisdictions. less expensive.Lawyers should have more latitude to use persuasive language with confused client.Juveniles .15 . Neglect Proceedings –there are ABA standards of practice for Abuse .Custody.Reliance on family members may be preferable bc it provides better substituted judgment.Appointing guardian is drastic and deprives client of most rights . family has no lawful authority to give consent . but not coercion . some intervention is appropriate to remain loyal to client‟s enduring values .Children have right to cross-examine and confront witnesses and standard is beyond reasonable doubt . though. less permanent.Rule 1.14 applies same standards to minors that it applies to adults with mental Impairments .Delinquency Cases – lawyers typically follow norms of representation similar to those for representing adults . Abuse.If lawyer determines client‟s competence has failed. lawyer still has to articulate considerations involved in decision.

Anything that would be helpful to client.Attorney should elicit child‟s preferences.If client hasn‟t paid in full. lawyer can keep documents which haven‟t been paid for unless retention would unreasonably harm the client . represent expressed preferences and follow child‟s direction throughout course of litigation .How do you meet obligation of communicating with those who have extremely low IQs? . advise child.Duties to the client at conclusion of relationship .Duty to protect client confidences continues indefinitely. and say they understand things when they really don‟t. provide guidance. You should ask them to repeat what you‟ve told them instead of asking them if they understand. Personal notes and work . papers client is entitled to must be returned . you HAVE to turn over file.In NC. .People with low IQs want to please people in authority.Terminating a Lawyer-Client Relationship .16 and Neglect . even if not paid for yet .

16c .Matters in litigation – if lawyer filed suit on behalf of client or entered appearance in matter of litigation.1.When continued representation would involve unethical conduct – if representation will require violating law.When client already used services to violate law but continued representation won‟t result in new or continuing crime.16b1 allows exit without material adverse effect on interests of the client .When client won‟t cooperate – representation made „unreasonably difficult‟ . . lawyer can‟t withdraw w/o permission from court.When lawyer wants to terminate relationship .When case imposes unreasonable financial burden on lawyer .Client fires lawyer – lawyer must withdraw . Rule 1. Then they can withdraw .17 product don‟t have to be turned over.When client stops paying – lawyer must first warn that nonpayment can lead to withdrawal. lawyer MAY withdraw but doesn‟t have to .Grounds for Termination before work is completed . .

To evaluate if there is conflict.7. 1.Material Limitation – if client would receive less vigorous representation bc of lawyer‟s other Responsibilities .18 PROFESSIONAL RESPONSIBILITY Chapter 6: Conflicts of Interest A. Introduction .Mere possibility of harm is insufficient to present a conflict.7 .Imputed Conflict (1. 1.Rule 1.10) – between obligation of lawyer to client and obligation of another lawyer who is affiliated with the first lawyer B. .18) – between 2 present obligations of a lawyer. General Principles in Evaluating Concurrent Conflicts . ask 2 questions: .Direct Adversity – lawyer‟s conduct on behalf of a client requires acting against interest of another current client .7.Successive Conflict (1.Concurrent Conflict (1.9) – between obligation to a present client and an obligation to a former client .How likely is it that a difference in interests will eventuate? .

How to Evaluate Conflicts .If there likely is such a divergence.You can‟t sue one client on behalf of another .Decide whether lawyer is permitted to represent the client despite conflict (consentable) .Must be confirmed in writing .19 . consult w/clients affected under paragraph (a).If client doesn‟t consent.Are interests of parties divergently different? . would it materially interfere with lawyer‟s advice to or representation of the client? .Nonconsentable Conflicts . lawyer can‟t take on or continue the conflicting work .Is conflict between 2 present clients or 1 that is former? .Are conflicting representations factually related? .If consentable.Informed Consent .Lawyer must communicate adequate info and explanation about material risks and alternatives .Lawyer‟s reasonable belief – can lawyer reasonably conclude that he will be able to provide competent legislation? What would reasonable lawyer think? . obtain informed consent and send written confirmation to client of consent .How sophisticated is the client? .ID client/s and determine if each is present or former client .Determine if conflict of interest exists .

Imputation of Concurrent Conflicts .Representing Economic Competitors in Unrelated Matters . Conflicts between Current Clients in Civil Litigation .Rule 1.Conflicts in Public Interest Litigation .Problem 6-4: Prisoners’ Dilemma . or disagree as to remedy .Client can revoke waiver . Ps might disagree on whether to settle.Could still breach fiduciary duty though .10 C.One client has claim against the other.Withdrawal and Disqualification .20 .7 states simultaneous representation in unrelated matters of clients whose interests are only economically adverse doesn‟t ordinarily constitute conflict of interest . limited assets of D may make it impossible to satisfy co-plaintiff‟s claims.Rule 1.Representation of Co-Plaintiffs or Co-Defendants in Civil Litigation .Opposing counsel can move to disqualify a lawyer for conflict of interest .Possible Problems .

The LAP represents both interests here. Conflicts Involving Prospective Clients . The extramarital affair is definitely „disqualifying information‟ under 1.18 . told them about offer. so you have to respect confidentiality of both. D. so you contact them first about deal. You don‟t know if there is even a conflict here because both clients might want to take or not take the deal.21 .A lawyer can make inconsistent arguments on legal issue in different courts at different times w/o violating rules. Offer made to prisoners.First determine if she is a „prospective client‟.Problem 6-6: The Secret Affair . This may be unilateral communication and site disclaimers may have prevented expectation of possible representation .Rule 1.Taking Inconsistent Legal Positions in Litigation (positional conflict) . which would .18c. you obviously can‟t represent her due to your loyalties to Nick and the adverse effects that are unavoidable. but had other to get lawyers come in and discuss offer.If she is a prospective client. though. You don‟t have „joint clients‟ here. Lawyers in this real case went to prison. Probably best consent from both parties anyway bc they are going after same funds. . Ask for permission to go talk to patients about the offer.

Firm could still represent Nick and use that confidential information learned. If Maria‟s consent to the terms was „informed consent‟. . Comment 5 says you can condition conversations with prospective client on person‟s informed consent that no info disclosed will prohibit lawyer from representing a different client.22 require you to withdraw representation for Nick unless both the husband and wife are informed and give informed consent (which is not realistic).

23 PROFESSIONAL RESPONSIBILITY Chapter 7: Concurrent Conflicts in Particular Practice Settings A.Lawyer can‟t just draft documents for parties who are jointly represented .Tell parties at outset that info will be shared and lawyer will have to withdraw if one client decides something should be kept from the other .4 – must keep client informed .To determine if informed consent is necessary question is if potential conflict is reasonably Apparent . Representing both parties to a transaction .1. Is there direct adversity or a material limitation? . lawyer can‟t represent both bc that would involve suing one client on behalf of another. Representation only allowed w/consent of former . If lawyer withdraws from one client.9.Lawyer owes both clients duty of loyalty under 1.7 suggests lawyer shouldn‟t keep confidences from one joint client received from another .Whether consent is required is determined by 1. the other becomes a former client and he cant usually represent a client against a former client bc suit would be same or substantially related matter under Rule 1.If 2 clients end up in litigation against the other.7.

Can‟t represent customers of corporation . reporting to public .Who is the Client? .Can represent employees unless interest of organization conflicts.Don‟t have to report out problems if you were hired to help with those problems . so he must report misconduct to higher authority in org.13) . lawyer may have inadvertently created lawyer-client relationship .Lawyer‟s duty to corporation. not employees. Lawyer should decline to give advice and recommend independent counsel. If lawyer doesn‟t give warning and behaves so that employee expects confidentiality. may be able to represent one party B.Corporation itself. if necessary.Responding to Unlawful Conduct by Corporate Officers and Employees . there‟s generally not a duty. not officers or shareholders . and if necessary.If employee reveals something to corp lawyer in confidence.Representing the entity and employees . Model rules also allow.Duty to Protect Confidences of Employees .24 client. If waiver ab this situation was signed by parties at the beginning. highest authority that can act for corporation. Representing Organizations (Rule 1. does he have obligation to protect that confidence? If lawyer represents only organization and not any employee.

If discharged for reporting or if you withdraw. you‟re supposed to inform organization‟s highest authority of discharge or withdrawal .25 officials.But sometimes if immunity is offered to one client in exchange for info.Effective assistance of counsel required.Client can give waiver of conflict created by lawyer‟s representing a co- .Entity Lawyers on Boards of Directors .Lawyers not forbidden to be on Boards. Neither confesses or offers information . lawyer obligated to withdraw unless organization waives conflict C. there‟s conflict .If Ds cooperate they can avoid conviction.6th Amendment and Joint representation .Costs and benefits of joint representation of co-defendants . so representing codefendants could lead to reversal of conviction .Case law and Ethics rules on joint representation of CoDefendants .Model rules strongly discourage jointly representing codefendants .Duty to prove adverse impact on client is greater if no objection is made at trial . Representing Criminal Co-Defendants . If conflict does come up.

No.Representing Family Members in Estate Planning . A D who waives conflict is foreclosed from challenging subsequent conviction on basis of the conflict.Can lawyer reveal confidential info from insured to insurer? . .Who is the client of the insurance defense lawyer? . Representing Family Members .Some states allow.The insured.Common for lawyers to draft wills for husbands and wives.Even if company not client.Representing Both Spouses in Divorce . D. Judge can disqualify counsel even if defendants want to waive the conflict. and for beneficiaries to be other family members E. not the company. Representing Insurance Companies and Insured Persons . Some allow assisting both parties in preparing settlement as long as they agree and it‟s fair .26 defendant in same case. Though the company could be a client via contract. communications between it and lawyer are privileged and immune from discovery by claimant or other party to proceeding . some don‟t. even if insurer is also a client of lawyer and has asserted reservation of rights .When is there a conflict between interests of insurer and the insured? .

If there‟s dispute and lawyer represents both. what is lawyer supposed to do? .8(f) – a lawyer shall not accept compensation from a 3rd party for representing client unless… .Obligations to the insured should govern conduct in event of dispute about settlement . Representing Parties to Aggregate Settlements of Individual Cases . Must withdraw from representing both if not possible .27 .Act in best interest of the insured. act in best interest of both.Ds usually offer Ps lawyer a single large lump sum to settle all cases bc the Ds would prefer to accept that loss than face successive jury trials. or in a criminal case an aggregated . but contract between lawyer and insurer may delegate authority to make decisions about discretionary efforts or expenses in litigation . and if both are clients.Lawyer owes competent representation to the insured.8g – lawyer who represents 2 or more clients shall not participate in making an aggregate settlement of the claims of or against the clients. .Rule 1.If conflict of interest develops btwn insured and insurer.Rule 1. he must withdraw from representing both G.

Lawyer’s disclosure shall include existence and nature of all the claims or pleas involved and of participation of each person in the settlement.28 agreement as to guilty or nolo contendere pleas. unless each client gives informed consent. .Lawyer must get informed consent from all clients to share confidential information among them and then should advise each client that if any client refuses the settlement. D may withdraw it. . in a signed writing by client.

Distinguishing Present and Former Clients .If a lawyer worked on a matter on behalf of his employer corporation. client‟s reasonable understanding of scope of representation controls .Attempt to drop one client to accept another.29 PROFESSIONAL RESPONSIBILITY Chapter 8: Conflicts Involving Former Clients A.9 protects former clients B. the so called hot potato gambit. corporation not viewed as former client even as to matters that took place during lawyer‟s work for the corporation C. the corporation will be viewed as a former client as to that matter. Not allowed . Nature of Conflicts between Present and Former Clients .Rule 1.Restatement explains that because contracts with a client are to be construed from client‟s viewpoint.Substantial Relationship? . Evaluating Successive Conflicts .If they involve same transaction or legal dispute OR if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in prior representation would materially advance the client‟s position in the subsequent matter – Comment 3 . has been condemned. If lawyer didn‟t work on certain matter and received no confidences about it.

30 . But if firm learned a lot about operation of former client and that info could be used on behalf of a competitor to the disadvantage of that former client. firm could have conflict .Relationship between 2 matters depends on whether factual information could have been learned during the first matter that could be used adversely to the first client during the second representation . Representing the Competitor of a Former Client .Existence of substantial relationship depends not on what the lawyer actually learned but on what kinds of confidences a lawyer ordinarily would’ve learned in the prior matter .If confidential information learned from former client has become public.Material Adversity – harming former client‟s interests E.General knowledge of the client‟s policies and practices ordinarily won‟t preclude a subsequent representation . lawyer not precluded from representing new client by the possession of that knowledge .If lawyer worked only in limited capacity (doing minimal research as associate).Comment to Rule 1. it can be reasonably inferred he gained no info of value .7 says ordinarily representation of economic competitors of former client poses no conflict.

.6 and 1.Rule 1. Imputation of Former Client Conflicts to Affiliated Lawyers .9b .Using or Revealing a Former Client‟s confidences .Comment 6 says certain presumptions can be made .Duty to protect former client confidences continues indefinitely G.1st presumption needs rebutting (presumes lawyer knew facts about client represented by former firm) .31 F.Rule 1.Consent not needed unless lawyer had acquired info protected by Rules 1.Screening is rebuttal .Analyzing Firm Conflicts .09 applies to conflicts that develop when lawyer enters new firm . Conflicts Between the Interests of a Present Client and a Client who was Represented by Lawyer’s Former Firm .9c that is material to the matter .Firm whose disqualification is sought should have burden to prove lawyer who changed firms doesn‟t possess confidential information material to the new matter .Same/substantially related matter .Can show by capacity worked at firm etc.2nd presumption needs rebutting (presumes new firm is infected bc info will be shared) .

9b . Depends also on what legal strategy is.Perhaps. If they are found to be so. It depends on if the lawyers are determined to be working together in a „firm‟ relationship. but I‟m not sure it‟s prohibited. . then they could only represent the co-defendants if the defendants consented bc there could clearly be adverse relationship here under 1.10b . If Bellavia is not guilty. Bellavia is now a former client.Does Collingwood standing in create a relationship between Bellavia and him? I think it might and this would violate rules bc a not guilty plea hurts your own client a bit. I think they could become partners.Rule 1. If you aren‟t found to be working in „firm‟ relationship.10 .To analyze conflicts brought into firm B: use 1.Not unless you get consent from both. Kaplan could represent Bellavia. so you‟d have to get consent from Lubinksi to do this. but it‟s never recommended. .32 . There is adversity here and the same legal matter is present. . then Lubinkski is. I don‟t think it‟s a good idea. Counsel can represent co-defendants in trials. .Problem 8-4: The Fatal Shot .7. He would be hurting his own client here. so you analyze under 1.Imputation .If the clients gave informed consent.Lawyer Moves from Firm A to Firm B .To analyze conflicts remaining in Firm A: use 1.9.

that acceptance of employment will preclude other employment by lawyer .Time and labor required. novelty and difficulty of questions involved.33 PROFESSIONAL RESPONSIBILITY Chapter 9: Conflicts Between Lawyers and Clients A. if apparent to client. skill requisite to perform service properly .Likelihood.5(a) Factors to be considered in determining the reasonableness of a fee include the following: .Retainers – charging for a certain number of hours in advance is common when lawyer will be paid based on time spent and there‟s not already a relationship .Reasonable Fees – lawyers have wide discretion .Types of Agreements . Legal Fees .Rules of contract law and state ethics code govern fee contracts .Rule 1.Fee customarily charged in the locality for similar services .Lawyer-Client Fee Contracts .

Rule 1. Lawyer representing indigent client may pay court costs and expenses on behalf of client . lawyer shall not make or negotiate agreement giving lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation B.Time limitations imposed by the client or by circumstances . the repayment of which may be contingent on the outcome of the matter 2.15 .Whether fee is fixed or contingent . A lawyer may advance court costs and expenses of litigation.Nature and length of relationship with client . ability of lawyer performing services . Lawyer as Custodian of Client Property and Documents .Rule 1.Experience.Forbidden and Restricted Fee and Expense Arrangements . relation.8(d): Prior to conclusion of representation.8(e): A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except that: 1.Client Trust Accounts .Rule 1.Must keep separate from personal accounts! .34 .

Common “personal interest” conflict occurs when two lawyers who are members of the same family represent .Rule 1. 8(a) discourages.8(c) . .If there‟s a dispute over amount of fee.Intimate Family Relationships .Rule 1.Unless creditor has legitimate claim to particular funds in lawyer‟s possession.Client Property . lawyer is to distribute undisputed portions of settlement and keep disputed portion in client trust account until resolved C.35 . Conflicts with Lawyer’s Personal or Business Interests .Are terms fair to client? Have you explained terms to client clearly and in writing? Have you advices the client in writing that she should get legal advice about the deal from another lawyer? Has the client had a chance to get advice from another lawyer? Has client given informed consent in writing to terms of deal and lawyer‟s role in deal? . but doesn‟t prohibit it.Gifts .Business transactions between lawyer and client . not 3rd party .Ask these questions before making a deal w/client: . lawyer‟s duty is to client.Traditional view is to avoid doing biz with clients bc interest in making money is likely to conflict with ability to look out for client interests .

8(k) provides financial interest conflicts of lawyer in a firm are imputed to all other lawyers.Financial Interest Conflicts .Rule 1. though. because personal interest . Doesn‟t impute. Must get informed consent. Can‟t enter into a biz transaction with client of another member of the firm w/o complying with paragraph (a) .36 clients with adverse interests in a matter.

3 *** Comment 10 to this rule is important C.When lawyer believes criminal defendant intends to lie on stand .Rule 3. Truth and Falsity In Litigation . Investigation before Filing a Complaint . but they‟re not allowed to file frivolous suits . Lawyer’s Duties if a Client or Witness intends to give False Testimony .Rule 3. lawful conduct compatible with the very nature of a trial as a search .1 Meritorious Claims and Contentions -A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein. unless there‟s a basis in law and fact for doing so.Duty to advocate D‟s cause limited to legitimate. A lawyer for the D in a criminal proceeding.How much fact investigation must a lawyer do before filing complaint? .37 PROFESSIONAL RESPONSIBILITY Chapter 11: Lawyers’ Duties to Courts A.Not expected to limit themselves to filing sure winners. or the respondent in a proceeding that could result in incarceration may nevertheless so defend the proceeding as to require that every element of the case be established B.

False Impressions Created by Lawyers during Litigation .4 bars deceit E.38 for truth.Rule 8.3 requires lawyers to correct fraudulent conduct by witnesses . Lawyers’ Duties of Truthfulness in Preparing Witness to Testify . Counsel is precluded from taking steps or in any way assisting the client in presenting false evidence . It‟s okay to help witness give clearer.Problem 11-5: Body Double F. but not if you KNOW evidence is false .In a civil case.Should resolve doubt in favor of client D. coherent.First duty is to try and dissuade client from unlawful course of conduct.No rule deals expressly with problem of half truths .A lawyer‟s knowledge of a client‟s intent to give false testimony . pertinent testimony must reveal perjury to court if it‟s .Can present evidence about which you‟re unsure.American law tolerates considerable amount of coaching bc uncoached witnesses often ramble and contradict themselves. You committed . Lawyer’s duties if client intends to mislead the court without lying . lawyer may refuse to offer it . you must KNOW evidence is false to not offer it .In a criminal case.Rule 3. if lawyer reasonably believes testimony is false.

reveal to witness other testimony or evidence that will be presented and ask witness to reconsider her recollection in that light.4(a) Fairness to Opposing Party and Counsel . Concealment of Physical Evidence and Documents . A lawyer shall not falsify evidence.State v. rehearse testimony.4 .Duties of Criminal defense Lawyers with Respect to Evidence of Crimes . should not disclose source of evidence in presence of jury . destroy or conceal a document or other material having potential evidentiary value.Rule 3. prosecutor.39 .A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter. Lawyer shall not counsel or assist another person to do any such act .4 Fairness to Opposing Party and Counsel b. Olwell – To encourage lawyer-client confidentiality. or offer an inducement to a witness that is prohibited by law .Rules restrict lawyers from hiding evidence of criminal misconduct under Rule 3.Restatement more explicitly allows coaching that doesn‟t induce false evidence: can discuss demeanor.Lack of clarity about meaning of „unlawful‟ . counsel or assist a witness to testify falsely. when attempting to introduce evidence at trial that was given to Ds attorney by D himself.Rule 3. witness‟s recollection and probable testimony. suggest choice of words G.

Prosecutor who receives evidence of crime from lawyer for suspect should take steps to avoid revealing to jury that evidence came from Ds lawyer .40 .Guidance for lawyers . lawyer must turn evidence over to law enforcement within reasonable time – at least in some jurisdictions (this was state case and ABA criminal justice standards don‟t require this) .Ryder – lawyer‟s intent to keep D from disposing of evidence doesn‟t matter if he places it within his own control and conceals it . Applicable law may require lawyer to turn evidence over to police or other authority .If lawyer merely inspects evidence w/o disturbing it.If client tells lawyer about location of evidence. lawyer can take temporary possession of physical evidence of client crimes for purpose of conducting limited exam that will not alter or destroy material characteristics of evidence.If client delivers physical evidence of crime to lawyer. lawyer‟s knowledge of location remains privileged .In many states. lawyer may inspect evidence but shouldn‟t disturb it or move it unless doing so is necessary to examine or test it .Lawyer cannot make it more difficult for prosecution to find evidence .

Could maybe delete files bc mere possession is a crime.Civil Matters .4 applies to both criminal and civil cases.First see if state law requires turning over of evidence . .I would immediately return the computer to the rector.Rule 3.Criminal Matters . First of all there are no current charges and Gardner is not a client. No ongoing criminal investigation.If lawyer has no knowledge that violation of law has been committed and no investigation is foreseeable. lawyer has no duty to turn over evidence to a prosecutor .41 . but lower requirements under state law for civil suits may allow lawyers to keep possession of evidence . It would be against interests of church to turn over the computer to the authorities and as of now there is no other party seeking the computer as evidence in any type of charge.Concealment of Documents and Evidence in Civil Cases .Duty not to conceal takes effect as soon as lawyer believes there will be investigation or as soon as one has started .Problem 11-7: Child Pornography . Could be lawful . though the Church is.

state law varies as to when duty to preserve evidence arises .Unless court disclosure or discovery rule applies. But Rule 3. of an opponent hasn‟t already informed judge of that authority. When suit is foreseeable.3(a)(2) prohibits failing to disclose legal authority in controlling jurisdiction that lawyer knows is directly adverse to client‟s position. or lawyer is required to remedy false testimony or some other ethical breach. .Rule 3.Some state laws require preservation of biz records for period of time even if no dispute is on horizon. Duty to Disclose Adverse Legal Authority . lawyer representing client need not inform adversay of adverse facts.42 .Duty to respond to Discovery Requests .Where lawyer has reason to believe wrongdoing has occurred.4(d) Lawyer shall not in pretrial procedure make a frivolous discovery request or fail to make reasonably diligent efforts to comply with legally proper discovery request by opposing counsel H.Litigants must comply with discovery requests or formally object to request .Once duty to preserve documents applies. records and objects should be retained even if they could be destroyed . higher duty to protect and disclose .

Rule 3. the credibility of a witness. assert personal knowledge of facts in issue except when testifying as a witness.43 .4(e) Fairness to Opposing party and Counsel . in trial. lawyer must inform tribunal of all material facts known to lawyer that will enable tribunal to make informed decision whether or not the facts are adverse . lawyer still may have no duty of disclosure . allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.Even if opponent has filed last permitted brief w/o disclosing some legal authority adverse to client.A lawyer shall not.This overrides 1.3(d) requires that in one-sided proceedings.6 confidentiality but lawyer doesn‟t have to reveal attorney-client and work product information . not dicta .Rule 3.Lawyer must KNOWINGLY fail to reveal so can‟t be disciplined for overlooking case I. Disclosures in Ex Parte Proceedings . the culpability of a civil litigant or the guilt or innocence of an accused .Only DIRECTLY adverse law need be disclosed. or state a personal opinion as to the justness of a cause.

Rule 4.No rule appears to require lawyer to correct false record given to interrogating cops by client. unless disclosure is prohibited by Rule 1. rules 4.6.Duty to avoid Material False Statements .1 through 4.When lawyers communicate w/others on behalf of clients outside of proceedings. But it could be argued lawyer‟s presence during event at which client provides false info is use of services to commit a fraud.1 – Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person. Communications with Lawyers and Third Persons .4 apply . .False statements by clients to 3rd parties . permitting disclosure under 1.44 PROFESSIONAL RESPONSIBILITY Chapter 12: Lawyers’ Duties to Adversaries and Third Persons A.1(b) .6b and maybe requiring disclosure under 4. or (b) 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.Deception of 3rd Persons .

directs. and doesn‟t have permission. Lawyer can say she doesn‟t believe her client would accept less than 80k settlement when she knows she would walk away with 75k.45 . has authority to obligate the organization w/respect to the matter.Rule 4.Rule 8.In representing a client. B. unless the lawyer has the consent of the other lawyer or is authorized to so by law or court order .2 comment 7 says lawyer can‟t interview one who: supervises. a lawyer shall not communicate ab the subject of the representation w/a person the lawyer knows to be represented by another lawyer in the matter. . Restrictions on Contact with Represented Persons . This limited use of deception to learn about ongoing acts of wrongdoing is not violation of rules .1 allows a little bit of untruthfulness in negotiation.Negotiation .4c doesn‟t apply to misrepresentation solely to identity or purpose and solely for evidence-gathering purposes. or regularly consults w/org‟s lawyer concerning the matter.Rule 4.Comment 2 to Rule 4.If lawyer wants to interview employee of an organization represented by another lawyer.2 applies to communications initiated by the lawyer and to those initiated by the represented person .2 Communication with Person Represented by Counsel . 4.

Rule 4. D.Doesn‟t require seeking readily available exculpatory evidence.2 may be interpreted in favor of allowing prosecutors to have contact w/suspects before they‟re charged or allowing them to direct investigations involving contact w/suspects.Depending on the state.46 act or omission in connection/matter may be imputed to the org for purposes of civil or criminal C.Prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by PC .Some courts have excluded evidence improperly or illegally obtained from the opposing party and disqualified lawyer who received.Rule 3.4 Respect for rights of Third Persons . Restrictions on Contact with Unrepresented Persons .McDade Amendment puts prosecutors on same level as other attorneys and holds responsible for state laws and rules . But some courts don‟t disqualify.8(a) Special Responsibilities of Prosecutor . Duties of Prosecutors (North Carolina has not adopted (g) and (h) of rule 3.Required Investigation by Prosecutors before charges are Filed . rule may prohibit such contact w/o consent of D‟s lawyer after charge is filed .8 . 4.3 – Dealing with Unrepresented Persons . so decision to prosecute can be based on one-sided info. Also. .Rule 4.

4d – Professional misconduct for lawyer to engage in conduct prejudicial to administration of justice PROFESSIONAL RESPONSIBILITY . prosecutor who gets new credible and material evidence creating a reasonable likelihood that a convicted D didn‟t commit an office of which D was convicted must disclose evidence to appropriate court. Conduct Prejudicial to Administration of Justice . and.Rule 3. E. Unreliable Evidence . disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor. in connection with sentencing.8(d) Prosecutor Shall: 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.8. Prosecutors with clear/convincing evidence of innocence of convicted person must seek to remedy conviction F.In states adopting 2008 amendment to Rule 3. except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.47 .Rule 8.

Advertising . Supreme DID uphold saying it was reasonable restriction on lawyers . State Bar of Arizona – SCOTUS said lawyers could advertise their services and fees B. Direct Mail .The Supreme Court did seem concerned in Bates about preserving the integrity of the Court advertising profession and I think they would probably uphold some sort of waiting period.Bates v.Rule 7.1978 decision. Ohio State Bar Assn ruled state could ban in –person solicitation by C. Ohralik v.3 Problem 14-1: Do you Need a Lawyer? .48 Chapter 14: Regulatory Restrictions on Law Practice A. Solicitation .1 – 7.

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