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1. The Regulation of Lawyers: Historical Background and an Overview of Bar Admissions, Professional Discipline, and Judicial Sanctions. Casebook, pp.1-16, 31-82 a) Restatement Third, The Law Governing Lawyers§ 2, Comment d i) ―A license to practice law confers great power on lawyers to do good or wrong. Lawyers practice an occupation that is complex and often, particularly to nonlawyers, mysterious. Clients and others are vulnerable to wrongdoing by corrupt lawyers. Hence, as far back as the first bars in medieval England efforts have been made to screen candidates for the bar with respect to their character. * * * The central inquiry concerns the present ability and disposition of the applicant to practice law competently and honestly.‘‘ ii) Concerns about how bar committees might enforce this? -Communist party membership -In re: Hale (Ill., 1999) (outspoken racist) -In re: Converse (Neb., 1999) (law school weirdo) iii) Rule 8.4 Professional Misconduct: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; Comment 2: o ―A lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.‖ o -violence, dishonesty, breach of trust, or serious interference with the administration of justice. o -not crimes of ordinary ―moral turpitude‖: adultery, etc. iv) Rule 8.1 Bar Admission and Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter…except that this Rule does not 1. require disclosure of information otherwise protected by Rule 1.6. v) Should there be a statute of limitations on how long prior incidents can affect current bar admission decisions? Matter of Prager (Mass, 1996) – not enough lapsed time to admit reformed druglord to bar. ABA Standards for Imposing Lawyer Sanctions, approved by 1986 ABA House of Delegates (amended in 1992). [adapted by many states] o Four factors: 1. The duty violated 2. The lawyer‘s mental state 3. The seriousness of the actual or potential injury 4. The existence of aggravating or mitigating factors vi) Why discipline attorneys? ABA Standards: ―The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession.‖ 1
(a) Protects clients and other non-attorneys (b) Removes seriously deviant lawyers (c) Deters deviance and maximizes compliance with rules (d) Forestalls public dissatisfaction, protects the public image of the profession. (e) Not punishment, per se. (f) Not the equivalent of a criminal sanction. vii) Model Rule 8.3 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. In re Hinson-Lyles (34) – three felonies for sex with students sufficient to deny. (a) Exceptions? (i) -(Rule 1.6) (ii) -But what about Himmel (pg 56) – first case to discipline lawyer solely for failure to report. viii) Model Rule 1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comments: (1) Sometimes general practitioner competence is enough. Sometimes expertise in a particular field may be required. Relevant factors for determining whether a lawyer has the requisite knowledge and skill include: 1. How complex or specialized is the matter? 2. What is the lawyer‘s experience (in general and in the specific field) 3. Does the lawyer have time to prepare and study? 4. Can the lawyer refer matter to, or associate or consult with, a lawyer of established competence in field? (2) A lawyer need not necessarily have special training or experience to handle unfamiliar types of legal problems. (3) Emergencies = different standards. (4) Can accept case if you can achieve competence through reasonable preparation. (5) Inquiry into and analysis of the factual and legal elements; methods and procedures. (6) Continuing legal education: must keep abreast of changes in the law and its practice. Examples of Incompetence (1) Not understanding basic legal rules and principles 1. not knowing the necessary procedures to complete an adoption 2. Misadvising client about basic tax and bankruptcy rules, etc. 3. Failure to name necessary parties in a lawsuit 4. Not knowing local court rules re: filings and service (2) Lack of preparation 1. Not conducting necessary legal research 2. Filing sloppy, incoherent briefs ix) Model Rule 1.3 A lawyer shall act with reasonable diligence and promptness in representing a client. Types of 1.3 Violations: (i) Missing deadlines; statutes of limitations. (ii) Unreasonable delay (iii)Neglect 2
1. ―indifference and a consistent failure to carry out the obligations which the lawyer has assumed…or conscious disregard for the responsibility owed‖ 2. Note: Malpractice v. Professional Discipline (iv) Inadequate investigation work In Conduct of Loew (Or. 1982): burn-out syndrome is an excuse x) What if two states have incompatible rules (i.e. one requires disclosure and the other forbids it)? Which jurisdiction can discipline the attorney? Which rules? Rule 8.5(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, 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 rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer‘s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer‘s conduct conforms to the rules of a i. jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer‘s conduct will occur. xi) Regulating lawyers outside of the formal disciplinary system. By what standard should a lawyer be judged in a malpractice case? Restatement Third, The Law Governing Lawyers § 52(1): ‗‗[A] lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances.‘‘ ‗‗[T]he essential elements of a cause of action for professional negligence are: ‗‗(1) The employment of the attorney or other basis for imposing a duty; ‗‗(2) the failure of the attorney to exercise ordinary skill and knowledge; and ‗‗(3) that such negligence was the proximate cause of damage to the plaintiff.‘‘ -Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 8.13 (2010 ed.). Some courts loosening up on the ―proximate cause‖ rule: ―substantial factor‖ of plaintiff‘s damages may be enough. Wide range of potential penalties: compensatory damages (including business costs), punitive damages, contempt charges, disqualification, and fee forfeiture. xii) Medical Malpractice Case. PP4, Field is likely liable to Moore because: Failure to have client examined by independent physician does not demonstrate ―the competence and diligence normally exercised.‖ Because of her failure to do so, she had no reasonable basis to advise Moore to accept the settlement. xiii) Tax Case Was Field obliged to refer the tax case to a specialist? Almost certainly. (1) Horne v. Peckham - told client that he had no knowledge of tax matters. Still liable for malpractice. 1. Duty to refer client to a specialist or recommend the assistance of a specialist if a reasonably careful and skillful practitioner would do so. Lucas v. Hamm ―Rule against perpetuities‖ case will almost never save you On unsettled points of law, reasonable judgment may not be the basis of malpractice claim, even if it ultimately proves to be wrong xiv) Proving malpractice claims 3
Plaintiff must ordinarily present expert testimony about duty of care. Evidence must be presented on the record with chance for cross examination (unless absolutely obvious). Experts can cite the model rules as evidence of standards, but the model rules are not determinative. Some courts have argued that violations of professional rules create rebuttable presumptions of malpractice. xv) Non-negligence malpractice claims For non-negligence breaches (e.g. breach of duty of loyalty), lawyers are subjected to fee forfeiture, even if client does not show actual damage. (Hendry v Pelland (DC Cir 1996)) - Firm hired by son to prevent sale of property on terms agreed to by mother; eventually represented all family members: son, mother, infant grandchildren). Because Court found impossible conflicting interests, firm was denied fees from any of these clients. xvi) Liability to Non-Clients At least 4 situations (Restatement): 1) Negligence or lack of loyalty to prospective clients 2) Beneficiaries named in a client‘s will. 3) non-client to whom lawyer has expressly assumed obligation to accurately report information (e.g.insurance cases) 4) Aiding a client breach their fiduciary obligation to a third-party intended beneficiary. 2. Prospective Clients. (pp5) Casebook, pp.84-97 a) Morality viii) Does a lawyer makes an implicit moral decision every time she takes a case? ix) Monroe Freedman: Yes. Because you are not bound to take cases, you can be morally accountable. x) ABA: No. xi) Rule 1.2(b): A lawyer‘s representation of a client…does not constitute an endorsement of the client‘s political, economic, social or moral views or activities. Comment 5: Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities. b) Duty to Prospective Clients viii) Rule 1.18(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. Potential malpractice liability for bad advice. c) Formation of Client Relationship (pp5) Restatement Third, The Law Governing Lawyers § 14: ‗‗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
charge. you had talked to him during the pro bono work that you do at a local legal services agency. Suppose that Mr. d) 3. he simply wanted to be given some basic advice and told how to file a claim against the broker himself. 5 . pp. confirmed in writing. if apparent to the client. except as provided in paragraph (d). and (ii) written notice is promptly given to the prospective client. or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client. that the acceptance of the particular employment will preclude other employment by the lawyer. Rule 1. or collect an unreasonable fee or an unreasonable amount for expenses. (5) the time limitations imposed by the client or by the circumstances.5 (a) (a) A lawyer shall not make an agreement for. and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. Nonprofit limited legal service programs Imagine that. instead of meeting Mr. Therefore. representation is permissible if: (1) both the affected client and the prospective client have given informed consent.18(d) (d) When the lawyer has received disqualifying information as defined in paragraph (c). The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required.5 seems to treat Mr. no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter. If a lawyer is disqualified from representation under this paragraph. Casebook.‗‗(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 Rule 1. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program. except as provided in paragraph (d). the novelty and difficulty of the questions involved. Under those circumstances. no imputed disqualification.98-115 a) Model Rule 1. The qualifier is that it is not a ―continuing‖ relationship. (4) the amount involved and the results obtained. Comment 4: By virtue of paragraph (b). Cannell did not want to hire you. Cannell have been a prospective client or an actual client? Rule 6.18(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. and the skill requisite to perform the legal service properly. Cannell as an actual client. however. (2) the likelihood. Attorney Billing Issues and Contingency Fees. not a prospective client. (6) the nature and length of the professional relationship with the client. would Mr. (3) the fee customarily charged in the locality for similar legal services. a lawyer's participation in a short-term limited legal services program will not preclude the lawyer's firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program's auspices. Cannell in your office.
– Faxing. except when the lawyer will charge a regularly represented client on the same basis or rate. charge. Rule 1. preferably in writing. 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. • Charging for time necessitated by own inexperience. and ability of the lawyer or lawyers performing the services.5 (d) •Criminal defense cases: May discourage guilty pleas to lesser charges. before or within a reasonable time after commencing the representation. and whether such expenses are to be deducted before or after the contingent fee is calculated. e) Improper Billing • Nonlawyer work at lawyer rates. c) Model Rule 1. – Alternative proposal: contingency based on gap between initial settlement offer and ultimate result? Incentives to ―play the litigation lottery‖? (this is largely a red herring) Prohibitions • Domestic relations cases: May discourage reconciliation. Some courts have disagreed. being a friend. except in a matter in which a contingent fee is prohibited by paragraph (d) or other law.Raymark Industries: client proposed million dollar fixed fees. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. making basic phone calls. tried to fire firm 10 weeks into work.5(d) A lawyer shall not enter into an agreement for. delivering documents. g) Model Rule 1. d) Nonrefundable retainers are generally NOT permissible Clients do not have to pay for legal services they have not received • It is still the client‘s money: Retainers and flat fee payments must be placed in a trust fund until they have actually been earned. Rule 1. including the percentage or percentages that shall accrue to the lawyer in the event of settlement. litigation and other expenses to be deducted from the recovery. Ex. or collect: 6 . reputation. Green (Colo 2000): fees for time lawyer spent faxing documents found excessive. – excessive hours doing research or consulting with other attorneys f) Concerns about Contingency Fees Attorney windfalls •Minimal relationship between effort and skill of attorney andpayment. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined. • Real world: this happens every day.5 (comment 1): you can bill for it. Rule 1.5 (b) (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. but it has to be part of billing arrangement. c) – Practical issue: measuring the contingency. .5 (c) (c) A fee may be contingent on the outcome of the matter for which the service is rendered. Exceptions: •lawyer can demonstrate opportunity costs (that had been foreseeable to client) •Fee arrangement proposed by sophisticated clients (sometimes).5 (d) •Civil defense cases: – ABA formal opinion found them permissible.(7) the experience. and (8) whether the fee is fixed or contingent. trial or appeal. b) Model Rule 1. .
(1) any fee in a domestic relations matter. a lawyer may not hold funds to coerce a client into accepting the lawyer‘s contention.000 memos • Quality of life concerns – Especially for mothers • Alternative Trend: Fixed fees for ―commodity work‖ 3. The disputed portion of the funds must be kept in a trust account and the lawyer should suggest means for prompt resolution of the dispute. 760 So. for example.2d 940 (Fla. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. or (2) a contingent fe for representing a defendant in a criminal case h) Hourly Billing Issues • Creates incentives for firm to perform unnecessary work. its special value to the client * * *. Comments: o  A lawyer should hold property of others with the care required of a professional fiduciary. Other property shall be identified as such and appropriately safe-guarded. 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. All property that is the property of clients or third persons. except when some other form of safekeeping is warranted by special circumstances.15(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. • Otherwise. or elsewhere with the consent of the client or third person. if monies. Casebook. a lawyer shall promptly notify the client or third person. or to lie about work. Restatement § 44. must be kept separate from the lawyer’s business and personal property and. Funds shall be kept in a separate account maintained in the state where the lawyer‘s office is situated.‘‘ Grosso. in one or more trust accounts. including prospective clients. Except as stated in this rule or otherwise permitted by law or by agreement with the client. o  Lawyers often receive funds from which the lawyer‘s fee will be paid. (d) Upon receiving funds or other property in which a client or third person has an interest. such as arbitration. – Particularly in larger firms (pressure to bill) – Attorneys dealing with unsophisticated or desperate clients Leads to absurd results o $30. However. by placing them in a safe-deposit box or office safe. pp. Comment e: ‗‗This Section requires a lawyer to use reasonable measures for safekeeping such objects. o •Lawyers need client permission to sign clients‘ names.. but can sign their own..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.2000) (client‘s guns in humid garage) PP7 . The reasonableness of measures depends on the circumstances.Did Jackson violate the Model Rules by signing the check? •Not on these facts. including the market value of the property. and special difficulties that would be required to replace it if known to the lawyer * * *. Handling Client Property and Withdrawing from Representation. the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement in lieu thereof. possible disciplinary and criminal liability (conversion) Model Rule 1. 7 . The undisputed portion of the funds shall be promptly distributed. Securities should be kept in a safe deposit box.115-131 Rule 1.
5 year requirement RULE 1. such as giving reasonable notice to the client. the client‘s lawyer. Casebook.131-148 1) Attorney-Client Privilege a. pp. a lawyer shall take steps to the extent reasonably practicable to protect a client's interests.16 (a) Except as stated in paragraph (c). FRE 503) – Expansive. emails & electronic files (NY opinion) • Lawyer needs individual records of each client‘s funds. or another authorized agent of the client voluntarily discloses the communication in a non-privileged communication (see Restatement 79). MO state bar opinions). • ABA Model Rules for Client Trust Accounts o • Detailed ledger records. with some exceptions •Source of considerable litigation b. (d) Upon termination of representation. 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. 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. •Communication between privileged persons. Loss of Attorney Client Privilege A-C privilege is waived if the client. (Restatement §68. (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. where representation has commenced. (3) the client has used the lawyer‘s services to perpetrate a crime or fraud. 4. (2) the client persists in a course of action involving the lawyer‘s services that the lawyer reasonably believes is criminal or fraudulent. The lawyer may retain papers relating to the client to the extent permitted by other law. a lawyer shall not represent a client or. (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. a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client. allowing time for employment of other counsel. or (7) other good cause for withdrawal exists. 8 . for the purpose of legal assistance. Privilege and Confidentiality. (b) Except as stated in paragraph (c). or (3) the lawyer is discharged. in confidence. Fiduciary responsibilities regarding client property No intent or harm required for discipline • One of the easiest ways to get disbarred • Property includes client files (AZ. (2) the lawyer‘s physical or mental condition materially impairs the lawyer‘s ability to represent the client. (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.
possible full subject matter waiver (same regarding work product waiver).6: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Comment 2: The Policy Rationale 9 . • Once A-C privilege is lost. (3) to prevent. mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client‘s commission of a crime or fraud in furtherance of which the client has used the lawyer‘s services. Extra: Marzan: duty remains even if information is ―publicly available‖ (but not ―generally known. (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Should be a balancing test. whatever its source. (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.‖) This is broader than A-C privilege. other than underlying facts. prepared by a lawyer for litigation then in progress or in reasonable anticipation of future litigation. Comment 3: The confidentiality rule…applies not only to matters communicated in confidence by the client but also to all information relating to the representation. the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Not automatically lost with client‘s death o – Swidler & Berlin v US (1998) (Vince Foster) (1) Restatement 77 disagrees with this. (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.‖ (Hickman) 2) Duty of Confidentiality Model Rule 1. lawyer must still protect confidentiality from prosecutor. Attorney Work product: –Tangible material or its equivalent in unwritten or oral form. or (6) to comply with other law or a court order. (4) to secure legal advice about the lawyer‘s compliance with these Rules. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved. or to respond to allegations in any proceeding concerning the lawyer‘s representation of the client.o – Most common scenario: client shares information with outsider o – A-C privilege can be waived through accidental disclosure (a real concern in large document-intensive production cases). o •―not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. –Not absolute: ‖substantial need‖ and ―undue hardship‖ showing –Courts grant special protection to ―core‖ or ―opinion‖ work product (―extraordinary circumstances‖ standard). confidentiality duty remains o – When A-C privilege waived (like ineffective assistance of counsel claim). Despite loss of A-C privilege.
2002): turned over privileged matter to gov‘t with non-waiver statement (ex. and the law is upheld. Investigations and Waiver Should the attorney-client privilege and work product immunity be lost as to later private litigation if a company voluntarily turns documents over to a government agency in an effort to demonstrate there has been no violation of law? Hot button issue due to federal enforcement efforts in the 2000s. in the complex of laws and regulations. to advise the client to refrain from wrongful conduct. in the absence of the client‘s informed consent. o •Post-Enron. Tyco. emphasis on punishing bad corporate actors and deterring them by any means necessary. The lawyer needs this information to represent the client effectively and. Standard– ―The communications concerned matters within the scope of the employees corporate duties. See Rule 1. pp. WorldCom. shareholders bringing a derivative suit may have access too. and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. Casebook. but successor management can clearly see the report]. This contributes to the trust that is the hallmark of the client-lawyer relationship. 3) Differences between A-C privilege. Based upon experience. 10 . •Unlike in individual representation.‖ b. HealthSouth fall-out. c. A lawyer‘s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. • Purposes: client trust. attorney diligence and preparation • Scope of Protection: confidentiality extends beyond legal proceedings. ABA and local bar associations vehemently opposed this. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. This does not waive the confidential status of this). Rule 1. clients come to lawyers in order to determine their rights and what is. Organizational Clients. the lawyer must not reveal information relating to the representation. Corporate criminal defendants got credit for waiving/disclosing. • A-C: absolute. Now this is supposedly no longer a consideration. credit for doing so In re: Columbia/HCA Healthcare Corp (6th Cir.A fundamental principle in the client-lawyer relationship is that. civil procedure law.0(e) for the definition of informed consent. WP: subject to necessity exception. Court found that this waived A-C and work product protection in later civil litigation. deemed to be legal and correct. 5. Almost without exception. Comment 4 This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. if necessary. agency law. work product immunity.148-167 a. lawyers know that almost all clients follow the advice given. Upjohn (1981): rejected ―control group‖ test. technically. this is not necessarily for the person who hired you or the person most at risk to decide.13 –Organization as a client •Privilege is the corporation‘s to waive [not either group of managers. o •Pressure to waive. Adelphia. and confidentiality duty Sources: evidence law.
•NOTE: This is different than Rule 1. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.6(b) Lawyer might have affirmative obligation to disclose to avoid assisting fraud. 1.6. 6. PP 10 a) Model Rule 1. Is A-C privilege and WP immunity lost in later litigation as to documents a company turns over to its outside accounting firm as part of the company‟s annual audit?(PP9) a) General rule: Work product protection not waived if given to non-adversaries (unlike A-C privilege). 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. or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. would your duty of confidentiality under Model Rule 1. Does either the attorney-client privilege or work product immunity protect the memorandum from the former assistant general counsel that purports to authorize false reporting? a) •The Crime-fraud exception (see Restatement 82) a. and Waiver. Only waiving privilege to government and no one else. Thus. Common Interest Privilege o If a single lawyer represents more than one defendant.- Limited waiver – turning over information to government to prove innocence.6(b)). a former client or a third person or by a personal interest of the lawyer.7(a) ‗‗A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client.6. Casebook.1 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.7(b) (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a). Direct Adversity. The Duty of Loyalty: Conflicts of Interest. Rule 4.6 prevent you from voluntarily turning the memorandum over to the EPA? Attorney is clearly allowed to disclose (1. Comment 6: Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. No one else should be able to see/use government. Restatement § 121 b) Model Rule 1. pp. a lawyer who knows that a client has accidentally discharged toxic waste into a town‘s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life threatening or debilitating disease and the lawyer‘s disclosure is necessary to eliminate the threat or reduce the number of victims. 11 . unless disclosure is prohibited by Rule 1.‘‘ [emphasis added] see also. (2) the representation is not prohibited by law.168-201. a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client. she is likely to get confidential information from each. Putting aside A-C privilege and WP issues.
If you find that a conflict develops between two clients. –Court considers actual prejudice and whether confidences and feelings of disloyalty are actually at risk Advance waivers of future conflicts: Should clients be able to agree at the outset of the representation that. Comment d: Positional Conflicts a. Factors: 12 . if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise. See also.): •Especially when conflict created through no fault of the attorney‘s (e. • Municipal clients: common sense – Westinghouse (7th Cir.7. Comment 24: Advocating a legal position that might create precedent adverse to client in an unrelated matter does not create a conflict of interest. Gould. e. courts will sometimes allow firms to drop client instead of disqualifying the firm completely. considering actual relationships: • Divisions: usually treated as part of the same client • Subsidiaries/Parents: depends on the actual corporate family context. the greater the likelihood that the client will have the requisite understanding. for example. the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation.g. Model Rule 1. On the other hand. Rule 1. Restatement § 122(1) Model Rule 1. 1978) Escaping Conflicts a. Inc. unrelated business mergers). See also Restatement § 122. because it is not reasonably likely that the client will have understood the material risks involved. such consent is more likely to be effective..7.9(limited to ―the same or a substantially related matter‖) Corporate clients – Generally a matter of common sense and fairness.g. if a conflict later arises. if the client agrees to consent to a particular type of conflict with which the client is already familiar. when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. may you avoid the problem by ‗‗firing‘‘ one of the clients and continuing to represent the other? Usually not. particularly if. If the consent is general and open-ended. the lawyer may represent one of the clients against the other? a. b. confirmed in writing. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations. Comment 22 ‗The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. then the consent ordinarily will be effective with regard to that type of conflict. •Policy concern: loyalty –Some flexibility though (Pennwalt Corp. •COI if ―there is a significant risk that a lawyer‘s action on behalf of one client will materially limit the lawyer‘s effectiveness in representing another client in a different case. and (4) each affected client gives informed consent. Thus.7(a)(1) v. The Hot Potato Rule: –Attorney cannot turn one current disfavored client into a former client to continue representing the favored client. Model Rule 1.o c) d) a) b) (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.. then the consent ordinarily will be ineffective.
must show incompetence AND actual prejudice. Conflicts of Interest in Criminal Litigation. o US v. Sullivan (1980): – Unless court should have know of COI. – where the cases are pending. Nonconsentable confict because lawyer may have been precluded from using trial tactics that would harm the firms‘ civil defense (lawyer without the split loyalties might have blamed other cops). d. If there is significant risk of material limitation.. any action in either spouse‘s best interest would unavoidably harm the other. Conflicts of Interest between Client and Attorney. Constitutional standards • Holloway v. Kemp (1987). Once that happened. Mickens v Taylor (2002): very tough standard. may get free attorneys – but courts are more concerned with the avoiding conflicts of interest. Arkansas (1978): – ―joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. must prove that there was an actual COI that adversely affected lawyer‘s performance) – Strickland (1984): for reversal. Prosecutors requesting separate defense counsel • Permitted.‖ •Court has affirmative obligation to ―promptly inquire with respect to such joint representation and shall personally advise each defendant of his right to the effective assistance of counsel. def. This was not accounted for in the earlier conflict waiver. lawyer needs informed consent. – whether the issue is substantive or procedural..229-245 a. 2002): Law firm who represented one of Louima‘s torturers also represented PBA. prosecutor made offer for them to each plea to half.‖ – For example. State (SC 2001): layer represented husband and wife. – Even where defense objects: US v Locascio (2nd Cir. wrt to advice about testifying against others in exchange for leniency • Cuylver v. • Possible strategic drawbacks: – clients may benefit from sticking together (avoiding prisoners‘ dilemma). including separate representation. may get better attorneys.‖ (Federal Rules of Criminal Procedure 44(c)) •Unless ―good cause to believe no conflict of interest is likely to arise‖… •Constitutional (6A) Issue: Ineffective assistance of counsel. 1993) c. Rule 1. b. Insured and Insurer. Casebook. incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question…The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. e. The Court must inquire if brought to their attention. Schwarz (2nd Cir. Representing Clients in Conflict o Thomas v.7.201-228. def. • This is for overturning convictions. – the temporal relationship between the matters.– the clients‘ reasonable expectations in retaining the lawyer. There is a much lower bar for attorney discipline. Comment 23: ―conflict may exist by reason of substantial discrepancy in the parties‘ testimony. Prosecutor’s Personal Ambitions (PP11) 13 . – Burger v. - 6. – the significance of the issue to the immediate and long-term interests of the clients involved and . pp.
property or financial transaction with a client. invest in the parcel near the industrial park? As we have posed the problem. but courts draw the line at actual personal conflicts. Stock as Fee Payment Fees paid in the form of stock = business transaction (Rule 1. Comment 9: An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer.. Privitization/contingency fees: create risks that prosecutors will be influenced by money (and less likely to drop cases).May Doe. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. (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. Policy Rationale Rule 1. Writing about your cases Okay if you wait until the conclusion of the trial Model Rule 1. 14 .8(d): Prior to the conclusion of representation of a client. including whether the lawyer is representing the client in the transaction. and (3) the client gives informed consent.8) Rule 1.Lewis (Cal.‖ •Counter-arguments: o – Make it easier to afford representation o – Can help clients in their business operations o – Can function as a good faith sign PP11 .8(a) requirements (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. a loan or sales transaction or a lawyer investment on behalf of a client. . to the essential terms of the transaction and the lawyer‘s role in the transaction. 1997): auditor-controller of OC. . f.Greer (Cal. in a writing signed by the client. create the possibility of overreaching when the lawyer participates in a business. for example. . g.Rook (Or..8. restitution/voiding of the agreement in others (even when deal was patently reasonable and in good faith). alleged misconduct led to cuts in prosecutor‘s office. Sanctions: o Professional discipline in bad cases. without Johnson‘s consent. Court disqualified entire office. a lawyer shall not make or negotiate an agreement giving the lawyer literary/media rights to a portrayal or account based in substantial part on information relating to the representation. together with the relationship of trust and confidence between lawyer and client. Comment 1: o ―A lawyer‘s legal skill and training.. Yes. 1977): victim‘s mother worked in prosecutor‘s office and stood to gain custody from the conviction (also seems to have influenced the arrest). 1976): prosecutor refused to plea bargain because he didn‘t like two attorneys. Johnson does not want to buy the property himself.Of what relevance is it that the prosecutor in this problem is highly motivated to get convictions that will tend to further his political ambition? Could a prosecutor‟s personal motives ever constitute a conflict of interest with his or her duties as a public prosecutor? Political ambitions are fine.
checkered history of lawyers sleeping with clients.7a(2) standard applies.• With clients‘ consent. Would it be proper for Doe to admire the car and let Johnson know she would like to have it? No.Should this type of arrangement be allowed? o Maybe not. . h. 15 . Conflicting views on whether the insurer is actually a client It‘s a matter of state insurance law: Model rules offer no direct guidance. Nextel agreed it would pay the law firm up to $5. b. • The 2nd Circuit said that employees demonstrated sufficient evidence to claim that the law firm had breached its fiduciary duty.5 million. either way: There‘s a conflict if: ―a significant risk that the representation of one or more clients will be materially limited by the lawyer‘s responsibilities to another client. a former client or a third person or by a personal interest of the lawyer. Morelli & Brown to file employment discrimination claims against Nextel. Doe cannot prepare the instrument (1. based on the number of claims resolved. . Morelli & Brown entered into an agreement with Nextel to persuade the employees to forego litigation and commit to mediation and arbitration. and with undivided loyalty to appellants.8(c)) a. A lawyer ―shall not solicit any substantial gift from a client‖ (Rule 1. – Emotional involvement may cloud lawyer‘s professional judgment – Confusion about confidentiality of communications •Long.‖ Are the problems of obtaining consent different depending on whether the insurance company is characterized as a client? (PP12) No. and (3) information relating to representation of a client is protected as required by Rule 1. Rule 1. Sexual relationships between lawyers and clients Model Rule 1. honestly. Conflict of Interest? .• In 2000.6.7. Courts felt that this was unseemly but not against the rules." Judge Ralph Winter wrote on behalf of a three-judge panel. . Leeds. and getting away with it. In exchange. Gifts to Attorneys (Rule 1.8(c)).8(f) (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent. Informed consent about fact of payment still required under Model Rule 1.8.What‘s wrong with sleeping with clients or their significant others? Rule 1.8(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.Model Rule 1. (2) there is no interference with the lawyer‘s independence of professional judgment or with the client-lawyer relationship.8(c)) May Doe follow Johnson‘s direction to prepare the documents necessary to give herself title to the Mercedes Benz? No.8(b): a lawyer ‗‗shall not use information relating to representation of a client to the disadvantage of the client‘‘ unless the client consents. • Majority view seems to be that both (insurer and insured) are clients. Model Rule 1. The agreement "created overriding and abiding conflicts of interest for LMB and thoroughly undermined its ability to deal fairly. a class of 500+ Nextel employees retained Leeds.8(f) and any ―materially limiting‖ conflicts under Model Rule 1. Comment 17: – Relationship ―almost always unequal‖ – risk of unfair exploitation/ coercion.
1994): attorney could not impeach testimony of insured to help insurer. two depositions in the case? . Different in professional malpractice context. pp. Does that in itself create a conflict of interest for a lawyer? . – courts often hold that attorney misconduct can waive an insurance carrier‘s defenses against payment. including interests in minimizing the amount spent on the representation and in learning how the representation is progressing‖ occurs in other contexts as well: family members.245-261 a.Lawyer must keep client informed though In order to reduce the cost of litigation. What is the lawyer to do if the insurer wants to settle but the insured does not? . •Also. law makes insurer completely liable for ultimate award if they turn down reasonable settlement.– Insurance law usually gives insurer the right to settle.Would Henderson be barred from representing a client in an unrelated case suing the insurance company that retains her in other cases to represent its policyholders? o •Yes. 6. Lawyer defending the insured must be sure not to get caught in the middle. for confidentiality reasons. then 1. 1. unless insured wants to sign away his policy.•Yes.7(a)(1) – If insurance company not a client. What standard defines when a lawyer may undertake a matter that is contrary to the interest of a former client? Model Rule 1. unions… Conflicts of Interest and Confidentiality What must a lawyer do when she learns embarrassing or incriminating information about the insured that the insurance company would want to know? •Parsons (AZ. several states don‘t allow lawyers to submit their files to insurance companies‘ auditors. insurer might have nothing to gain) .– Often conflicting interest with respect to settlement offers (insured doesn‘t care if its . Montanez v.7a(2) Reservation of Rights All–Mutual is defending the insured under a ‗‗reservation of rights‘‘ of the kind in Parsons. .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 16 .illegal only if it works against the client‘s best interest. Comment 11: o ―Third-party payers frequently have interests that differ from those of the client.within the limit. 1976): – attorney owed ―undivided loyalty‖ to insured. Reaction to settlement offer? (pp12) . Casebook. – If insurance company is a client. not allowed to disclose information to client‘s detriment to help the insurance company. At this point. Irizarry-Rodriguez (NJ. Insured and attorney generally are not allowed to thwart this.Not if it disadvantages the client‘s case (see model rule 1.8(f)) •Utah advisory opinion. separate lawyers are usually required.– In many states. Former Clients. may the insurer direct the lawyer to take no more than. PP 12 . say. Does a lawyer owe the same duty of loyalty to a former client as to a current one? Not exactly b. employers.
The Restatement‘s ―accommodation client‖ concept is the minority position. or when the information has become generally known. confirmed in writing. e.9(c) that is material to the matter.9. or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. This is generally not enough. and (2) about whom the lawyer had acquired information protected by Rules 1. d. The proof dilemma Touchstone in most cases is whether lawyer received relevant confidential information in the prior representation.g. Could that make the cases „„substantially related‟‟? No. Past Representation of codefendant 17 . confirmed in writing. there are often loyalty concerns nonetheless. that Abraham operates while intoxicated)..6 and 1. Courts apply different tests that generally use similar factors: (1) Is it the same case? Are the matters actually related? (2) Does it directly involve work the attorney performed for the first client? (3) Are the cases factual similar? (4) Are there legal similarities? (5) the extent of the lawyers‘ involvement in the cases? (6) Is there a substantial risk that the lawyer learned confidential information that would help the client in the second matter? Should cases be considered „„substantially related‟‟ if the factual issues in two or more cases are closely related. (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 these Rules would permit or require with respect to a client.adverse to the interests of the former client unless the former client gives informed consent. but she does have general impressions of Abraham‟s personality and specific knowledge of his financial situation. c. (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) whose interests are materially adverse to that person. Model Rule 1. but how do you prove this without revealing the confidential information that you are trying to keep secret? Courts use an ―objective‖ approach. but there is no confidentiality? Yes. Comment 3: ―A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services. Chugach is the minority rule– most courts seem to think it goes too far. Substantially Related Should the current medical malpractice case and the former adoption proceeding discussed in this problem be held to be ‗‗substantially related matters? (PP13) Real question is whether they look alike… whether there is overlap. unless the former client gives informed consent.‖ Showing of actual prejudice is not required. Rulemakers do not want clients at mercy of their former attorney‘s ethics in these scenarios. Suppose Heath knows no crucial secrets (e.
participated in discussions. access to files and the computer network. pp. Should that bar her from taking the current case against Dr. does. Rule 1.261-275 a. Could Heath use that information in a suit against that other patient on behalf of a current client? Only with Dr.9 have anything to say about that situation? What about law students (summer associates)? . What about temp attorneys? . g. Abraham in any earlier malpractice case. Some analogous principles apply via agency law though. it becomes much harder to prove that the work product is not also tainted. Does Model Rule 1. Confidential Information Suppose that. they are governed by Rule 1. h. Abraham wouldn‘t consent because of patient‐confidentiality rules. while doing discovery in her earlier representation of Dr. If there was cooperation between the defendants then there may be an implied attorney‐client relationship. Is Heath now prohibited from representing the department store suing a customer who happened to be a member of the former class for failure to pay a department store bill? There is generally no obligation of loyalty to past unnamed class action clients. But if counsel is disqualified to protect client confidences. but she had represented a codefendant in such a case. but otherwise it would be permissible.Assume that Martha Heath had not represented Dr. a secretary or paralegal. Imputed Disqualification. Here Dr. but the lawyer‟s nonlawyer assistant.) i. for example. Heath had learned something about a different patient of that doctor—the patient‟s tendency to alcoholism.Yes. depending on facts of representation and relationship. none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1..9(a) or (b) and arises out of the disqualified lawyer‘s association with a prior firm. Abraham? Quite possibly‐‐It depends on the facts of the past representation.9… (2) the prohibition is based upon Rule 1.9 only applies to lawyers. BUT There may be an obligation of confidentiality. Model Rule 1. Past class action clients Suppose Heath recently settled a class action on behalf of all the residents of her city against a local department store for systematically overcharging interest on past due accounts. 5. Model Rule 1. It depends on how they were used at their previous firms— whether they were treated like permanent attorneys (i. should substituted counsel have access to Heath‟s work product? Usually. and 18 . e. Access to Disqualified counsel‘s work product If Dr. Abraham‟s motion were granted and Heath were disqualified. working on multiple cases. Casebook.10: Imputation of conflicts of interest (a)While lawyers are associated in a firm.e. Abraham‟s co‐defendant. unless the work product is likely tainted. Other legal personnel Suppose that the lawyer does not change firms. Abraham’s consent.9(c): a lawyer may not use or reveal information acquired in a prior representation contrary to the interest of the former client unless the information has become generally known.7 or 1.9. f. etc.No.g.
and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures.‐Helps firms make as much money as possible 19 .11. confirmed in writing. b. e. Model Rule 1.‐Helps lawyers to find new jobs . at reasonable intervals upon the former client‘s written request and upon termination of the screening procedures. d. (d) The disqualification of lawyers associated in a firm with former or current a.(i) the disqualified lawyer is timely screened from any articipation in the matter and is apportioned no part of the fee therefrom. then no risk to any client. Disqualification imputed to one attorney does not spread with them when they go to another firm. a statement that review may be available before a tribunal.7.Suppose Xeres resigns from the firm of W & X. c. (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.10(b) When a lawyer has terminated an association with a firm.‐Helps clients secure legal counsel . Model Rule 1. Will Willis still be disqualified from representing World Wide? No. then it becomes a firm conflict. and (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm. government lawyers is governed by Rule 1.6 and 1.9(c) that is material to the matter. • But. • If ―personal conflict‖ is political/philosophical. and (2) any lawyer remaining in the firm has information protected by Rules 1. if loyalty to the conflicted lawyer might limit representation.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. unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client. a statement of the firm‘s and of the screened lawyer‘s compliance with these Rules. (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule. and not about confidences or loyalty. Pros and Cons of Allowing Screening Pros: . which shall include a description of the screening procedures employed. 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. Should conflicts that are „„personal‟‟ to one lawyer be imputed throughout a firm? Model Rule 1. PP14 .10 (a)(1) (exception): ―the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm‖ Personal interests are treated very differently than law firm business conflicts.‐Enables firms to merge .
2) – Does not mean that you cannot answer any questions about legally suspect actions. Purely technical legal advice. PP 15 a. that may be relevant to the client‘s situation. Although a lawyer is not a moral advisor as such. Miscellaneous • You can be disqualified if an attorney with whom you share office space is disqualified. court presumes prejudice 6. can sometimes be inadequate.291-319.The firms are affiliated for purposes of Comment 1. Advising Clients (Individual and Business Clients). f. a lawyer shall exercise independent professional judgment and render candid advice. These facts are not enough to impute such knowledge to W & X. may C & B simply get new local counsel? Will the disqualification of W & X require that C & B be disqualified as well? o Almost certainly. Casebook. – Cannot tell them how to commit a crime with impunity • Does this really seem straightforward though? Any ambiguities? – What does it really mean to ―counsel‖ or ―assist‖? – What if your client wants to know the likelihood of being punished for speeding a certain amount? – What if they say that they‘re just curious? – Should it matter if it‘s a serious crime or not? – What if the lawyer expressly states that he is not advising them to commit a crime or tells them not to? 20 . social and political factors. a lawyer may refer not only to law but to other considerations such as moral. • Public Defenders not treated like private law firms: – but courts still require proof that confidences will be kept – Wrt some conflicts. moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. economic. Giving Advice re: crime and fraud • No exception here– the rule is clear. therefore. especially where practical considerations. Cons: . pp. The S&L cases (FDIC cases) attorneys got in big trouble for accepting their clients‘ representations at face value.1 • Requires candid advice • Sometimes even moral advice‐‐ purely technical advice may be inadequate • Comment 2: lawyer may initiate advice when it appears to be in the client‘s interest • Comment 4: May require recommendations to consult other professionals In representing a client. –Usually a matter of if they publicly hold themselves out as connected. In rendering advice. Comment 2: Advice couched in narrow legal terms may be of little value to a client. are predominant. in heavily regulated industries where catastrophic consequences possible.‐Appearances of impropriety If the court disqualifies the firm of W & X and all of its partners and associates. . It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Lawyer may not counsel or assist a client to commit a crime or fraud (Rule 1. Model Rule 2. such as cost or effects on other people.‐Client discomfort. if you are not careful to protect confidences. b.
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. if warranted by the circumstances. 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.13 is to make sure that the clients‘ representatives are acting in accordance with the client‘s true interests.c. 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.2(d) (d) A lawyer shall not counsel a client to engage. May you report the corporate client to a public enforcement agency? Rule 1. e.13(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. like an organized crime family. if (1) despite the lawyer‘s efforts in accordance with paragraph (b) 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 or a refusal to act. Rule 1. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. employee or other person associated with the organization is engaged in action. f. Model Rule 1. or a violation of law that reasonably might be imputed to the organization. and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization then the lawyer may reveal information relating to the 21 . meaning or application of the law.13(e) ―A lawyer who reasonably believes that he or she has been discharged because of the lawyer‘s actions taken pursuant to paragraphs (b) or (c). does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client‘s conduct.‖ • You would probably need to inform the Board of Directors (in writing) • Lawyer may be liable to the client. • Under ABA rules. you are not allowed to advise a group who you are certain will regularly violate the law.13(b) If a lawyer for an organization knows that an officer. or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs. to the highest authority that can act on behalf of the organization as determined by applicable law. Comment 9: ―…This prohibition. Rule 1. however. d. the lawyer shall refer the matter to higher authority in the organization.13(c) and Comment 6 (c) Except as provided in paragraph (d). that is clearly a violation of law. g. or assist a client. Fired? Being fired does not necessarily relieve you of your ethical responsibilities. • The premise of Rule 1. scope. and that is likely to result in substantial injury to the organization. There is a critical distinction between presenting an analysis of legal aspects of question‐ able conduct and recommending the means by which a crime or fraud might be committed with impunity. • The exhaustion of internal remedies is a way to ensure you really know what the corporation wants. then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Rule 1. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so. including. in conduct that the lawyer knows is criminal or fraudulent. if they fail to adequately investigate or inform other people.
pp.inadvertently saying things against their interests. Consent of the organization‘s lawyer is not required for communication with a former constituent. and no. increase legal costs.Protects clients from overreaching from opposing counsel and from .stealing others‘ clients. c. . the consent by that counsel to a communication will be sufficient for purposes of this Rule. 22 . no. Contact with Represented and Unrepresented Persons. good way to keep clients in some instances. but it seems possible (under Tarasoff logic) and basic tort law.to the representation. and the truck driver? Yes. Model Rule 4. If a constituent of the organization is represented in the matter by his or her own counsel. h. Pros: . 5. this Rule prohibits communications with a constituent of the organization who supervises. Casebook.320-336 a. interference by those lawyers with . clearly there is no per se prohibition. Direct communication between parties • Rule does not prevent this. prevents lawyers from .– Unclear where/how you draw the line though. PP 16 .has chosen to be represented by a lawyer in a matter against possible overreaching by . In communicating with a current or former constituent of an organization. Comment 35 – a bunch of potential conflicts that you should consider though.other lawyers who are participating in the matter. b. See Rule 4. • Lawyer as witness • Lawyer with personal interests in tension with the corporation‘s • Lawyer not being objective because of personal involvement • Ambiguity over A‐C privilege – But benefits: prestige and money for attorney. but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. Compare Rule 3.Can Shabazz interview Barry Winters. 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. . Attorneys serving as directors If you are Sleepware‘s counsel.– Lawyers can give advice but cannot mastermind the entire encounter.the client‐lawyer relationship and the uncounselled disclosure of information relating . Rule 1.representation whether or not Rule 1. Mary Speedy.Can frustrate clients‘ wishes.7(b).‖ [Comment 1] Cons: . Comment 7: In the case of a represented organization. . can you also serve as a director? • Common practice. slow the resolution of conflicts.―contributes to the proper functioning of the legal system by protecting a person who . • Failure to inform will not render lawyer automatically liable. unless the lawyer has theconsent of the other lawyer or is authorized to do so by law or a court order.6 permits such disclosure.2: In representing a client.4(f).4. directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer‘s role in the matter.1: lawyer may not lie • 4. f. see Rule 1. as well as the setting in which the behavior and comments occur. a.4 lawyer cannot harass people e. and 4. sanctions its drivers who are late? What if any prospective customer can do that? Probably ok. she needs their consent h.1.13(f). the lawyer shall make reasonable efforts to correct the misunderstanding.• Conflicts of interest.‖ This seems general enough not to fall into that category. What rule governs how Bentley should handle her interviews with her the truck driver? Rules 4. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person.4 are all still relevant • 4. o Note: Some courts require more. Former Employees are generally fair game Unless they are represented by independent counsel i. might assume that a lawyer is disinterested in loyalties or is adisinterested authority on the law even when the lawyer represents a client. or an investigator on his behalf. phone a receptionist at Speedy Corp. a lawyer shall not state or imply that the lawyer is disinterested. In order to avoid a misunderstanding. thus making all of them ‗represented persons‘ under Rule 4. . May Shabazz. • Restatement disagrees. 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. g. other than the advice to secure counsel. • ABA rules and DC opinion: lawyer is a lawyer for all purposes. Lawyer as party There is disagreement about whether the rule applies if the lawyer is a party. 23 . o [Comment 2] The Rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer‘s client and those in which the person‘s interests are not in conflict with the client‘s.2? No. explain that the client has interests opposed to those of the unrepresented person. •The truck driver‘s act may be imputed to the organization •Only Barry Winters is fair game to interview in absence of counsel.3 In dealing on behalf of a client with a person who is not represented by counsel. same rules apply. Should Bentley announce that she is the attorney for all employees personally. The lawyer shall not give legal advice to an unrepresented person. particularly one not experienced in dealing with legal matters.3.3 limits what lawyer can say to unrepresented people o Cannot make them think you are disinterested or on their side(see Comment 2) • 4. a lawyer will typically need to identify the lawyer‘s client and. In the former situation. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent.Straightforward application of Comment 7: •Mary Speedy regularly consults with counsel and has authority to obligate the company. o [Comment 1] An unrepresented person. apart from the advice to obtain counsel. where necessary.. and ask the receptionist if Speedy Corp. d. – There are questions of fairness and public policy. Depends on whether this is considered to be ―the subject of the representation. Non‐represented persons What limits apply to his contact with Winters? Model Rules 4. 4. the possibility that the lawyer will compromise the unrepresented person‘s interests is so great that the Rule prohibits the giving of any advice.
For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client. or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. What rule explains which types of statements are impermissible during negotiations? Model Rule 4. .4. Model Rule 1.The principle behind this isn‘t clear. Model Rule 1.. certain types of statements ordinarily are not taken as statements of material fact. PP17. Comment 2 This Rule refers to statements of fact. Under generally accepted conventions in negotiation. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. A lawyer shall abide by a client‘s decision whether to settle a matter. unless disclosure is prohibited by Rule 1.Comment 1 A lawyer is required to be truthful when dealing with others on a client‘s behalf. b.1 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.. You can make statements about how they‘ll never be able to prove it. can you assert that Young had nothing alcoholic to drink the day of the accident? a. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. maybe. Whether a particular statement should be regarded as one of fact can depend on the circumstances. 4. as required by Rule 1. but generally has no affirmative duty to inform an opposing party of relevant facts. No. o Lower standard than what would be required in court. What is the first potential ethical issue here? Lawyer has not consulted with the client about objectives of representation.336-352 a. pp. d. prob 20 When you discuss the case with the prosecutor. shall consult with the client as to the means by which they are to be pursued. (4) promptly comply with reasonable requests for information… (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (2) reasonably consult with the client about the means by which the client‘s objectives are to be accomplished. Estimates of price or value placed on the subject of a transaction and a party‘s intentions as to an acceptable settlement of a claim are ordinarily in this category…Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortuous misrepresentation.6.2 (a) …a lawyer shall abide by a client‘s decisions concerning the objectives of representation and. (3) keep the client reasonably informed about the status of the matter.4 (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client‘s informed consent…. Should there be higher obligations of truthfulness in negotiations? Do lawyers have a higher obligation to be truthful than non‐lawyers? [Burden really not all that great on attorneys here. Seems to just be that we all know people exaggerate and bluff during negotiations so you would be a fool to rely on your opponent too much. .6.4. Ethics of Negotiation Casebook. see Rule 8. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. 24 .1 only ―false statement of material fact or law‖ c.
i.8 The prosecutor in a criminal case shall: ….6(b) A lawyer shall not participate in offering or making: …. (PP17) Suppose that in investigating Young‘s case you learn that his car had a serious steering defect that could have involved him in an even more serious accident. Model Rule 5.1.Not a license to commit fraud. which requires that defense request evidence. . (e) in trial. . Model Rule 3. Is this a sound rule? But what if defendant– after the case is over– wants to hire the plaintiff‘s attorney as a consultant? Does not violate any rule. g. neither the lawyer nor the client will file criminal charges against the opposing party (assuming that the party engaged in conduct that would justify such charges)? Modern rule seems to be that you can do so. h. lawyer may even have to affirmatively disclose certain adverse facts if client is obligated to do so. Do the Model Rules permit you to make such a deal for Young? No. or state a personal opinion as to the justness of a cause. ABA Formal Opinion 94‐383: Might not be ok to threaten the other attorneys though You have discovered information that the city would prefer be kept quiet. in connection with sentencing. You realize that thousands of other drivers have cars with the same defect that the manufacturer has not acknowledged. assert personal knowledge of facts in issue except when testifying as a witness. f. 25 .Somewhat broader than Brady. Higher standard for prosecutors Model Rule 3. May you negotiate a handsome settlement for Young that includes a provision that you will keep what you know confidential and not use it on behalf of any future client? Probably. Assume that the city proposes to drop all charges against Young in exchange for your agreement to never defend another drunk driving case. and. (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. except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. as long as it doesn‘t amount to extortion under state law. that in exchange for a generous financial payment to the lawyer‟s client.e. Should there be any limit on what parties to a negotiation may agree? May a lawyer agree. ABA Formal Opinion 92‐363: Requires that both civil and criminal case are well founded in fact and law. disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor. the culpability of a civil litigant or the guilt or innocence of an accused Would the lawyer have a lesser duty of disclosure when making representations on behalf of a financial institution client in the course of its review by a federal agency? Of course not. the credibility of a witness. (b) an agreement in which a restriction on the lawyer‘s right to practice is part of the settlement of a client controversy.4 A lawyer shall not: …. for example. allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. Under Rule 4.
000 for his personal injuries and then tell his other client.000 left to pay for the property damage? Seems possible. k. for example. the insurance company has offered to pay $20. m.1) Lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. or at the behest of a borrower for the information of a prospective lender. In some situations. Comment 1:  An evaluation may be performed at the client's direction or when impliedly authorized in order to carry out the representation. Under some circumstances. 4. Joint representation and aggregate settlements raise special problems: •Risk of differences in willingness to make or accept an offer of settlement •Each client has the right to have the final say in deciding offer of settlement or plea offer (under 1. inconsistent or suspicious o If the investigation has been so limited that the facts are not reliable You may not let a client purchase your ratification of its officials‘ socially beneficial objectives in the guise of a legal opinion. Lawyer as Evaluator. a lawyer shall exercise independent professional judgment and render candid advice. 353-366 l. Model Rule 2.‖ (see also Comment 1) Sometimes attorney must refuse to write the opinion: o If the facts appear to be untrue. pp.8(g) and Comment 13 (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. the terms of the evaluation may be limited.000 to settle a total of $25. Any such limitations that are material to the evaluation should be described in the report. but does not violate any specific rule. Model 2. PP18.‖ (see also Model Rule 1. however. but very problematic.1 In representing a client.2(d). Casebook. Such an evaluation may be for the primary purpose of establishing information for the benefit of third parties.1 and comment 1(rule 2. or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas. o Certain issues or sources categorically excluded o Scope of search may be limited by time constraints or the noncooperation of persons having relevant information. In other instances.3. the car owner.2) 5. Model Rule 2. in a writing signed by the client. the evaluation may be required by a government agency. slide 9: there are specific limits for tax avoidance issues o ABA formal opinion 85-352: ―lawyer can only take position if there is some realistic possibility of success if the matter is litigated‖ o Probability of success should approach 1/3 o Not okay to argue unconstitutionality of tax code 26 . Obvious public policy reasons to oppose this practice. unless each client gives informed consent. Rule 1. 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.3) still apply. such as a purchaser of a business. an opinion concerning the title of property rendered at the behest of a vendor for the information of a prospective purchaser. that there is only $2. the evaluation may be required by a third person.000 in claims. In this Problem. for example. an opinion concerning the legality of the securities registered for sale under the securities laws. See Rule 1.2. j. Comment 4: ―In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this rule. May counsel negotiate a settlement that would pay the other driver $18.
) then no privilege. for the sake of legal advice. that is clearly a violation of law. Quite possibly IRS may sanction attorney too. Client Fraud and SEC Issues. It depends if the information is to be disclosed to someone other than the client. Disclosure May you disclose the possible fraud outside the corporation? Which rules might allow this type of disclosure? Rule 1.367-384 a.n.3 (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‘s response may be made in accordance with procedures recognized in the legal profession. Facts that are discovered but not require to be disclosed remain privileged. Will you be liable to investors if your advice about the likely success of a tax shelter turns out to be erroneous? a. that there is a reasonable possibility that the outcome will be unfavorable. especially if you express more than 50% chance that the IRA will accept tax shelter (reliance opinion) 6. Cannot just hide or ignore responsive. b. and 27 . If you find damaging facts during the court of investigating the company to issue an opinion: a. p. If truly internal.6 confidentiality? a. a. a. If going to be handed over to another party (bank. Rule 2. Try to convince your client to remove itself from the situation requiring the opinion c.‖ broadly construed. making confidential communication. Lawyer must ask the client for consent to give the opinion to the bank even the client as already asked the lawyer to prepare it. lawyer should furnish information ―only if the client has determined that it is probable that a possible claim will be asserted. When a question concerning the legal situation of a client arises at the instance of the client‘s financial auditor and the question is referred to the lawyer. comment 6 – responsibilities in replying to independent auditors (pp18. for ex. What is the legal status of what you have learned from the director of research and development? Is the information privileged and/or confidential? • Probably A‐C privilege. Casebook. – Presumably ―information relating to the representation. q. o. pp. the lawyer shall not provide the evaluation unless the client gives informed consent. Privilege and Confidentiality a. Model Rule 2. Reports or opinions arising out of internal affairs may or may not be privileged. then privileged. ABA/AICA Treaty Unasserted claims clause.13(c) o allows disclosure outside the corporate client after ―climbing the ladder‖ if: (1) despite the lawyer‘s efforts…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 or a refusal to act. and that the resulting liability would be material to the financial condition of the client. – Director is a high‐ranking official of the corporate client. presumably for purpose of legal advice… (not just gossip) b. • Yes. p13) a. damaging information if it would render your opinion inaccurate or false. 1. Try to help client re-negotiate the scope of the opinion requested b. c.‖ r. but btw attorney and corporation.3.
2). 28 . or violation of any federal or state law. Under 4. Model Rule 1. f. or is about to occur. material breach of a fiduciary duty.4 govern Rule 3. 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 Any possible obligation to report? • Model Rule 1. comment 3 excludes representation of a client in a negotiation or other bilateral transaction with a governmental agency or in connection with an application for a license or other privilege. and may disaffirm documents prepared in the course of the representation that are being. then the lawyer may reveal information relating to the representation whether or not Rule 1. based upon which it would be unreasonable. under the circumstances.‖ Model Rule 1.2(d) forbids attorneys from assisting in clients fraud • Model Rule 1.6(b) o allows disclosure if lawyer reasonably believes necessary: (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. Do not rely on my participation in this matter. See Rule 4.‖ Controversial. Comment 10: ―In some cases.1(b) requires lawyer to disclose information necessary to avoid knowingly assisting a client to commit a crime or fraud d. (3) to prevent.1-4.9. Notice of withdrawal If you do withdraw. affirmation or the like.6 permits such disclosure. even though such a ―noisy‖ withdrawal may have the collateral effect of inferentially revealing client confidences. of Energy should not test your client‟s device when you know the device would not pass the test? Probably not. withdrawal alone might be insufficient. or will be. document.1 (and 1. Notice of withdrawal is a compromise that doesn‘t really please either side. for a prudent and competent attorney not to conclude that it is reasonably likely that a material violation has occurred. SEC regulations standard Do the SEC regulations require us to report the director‟s claims? What is the standard? 17 CFR §§205. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion.‖ Material violation: any material violation of state or federal securities law. etc.1. used in furtherance of the fraud.13(b) requires the lawyer to ―proceed as is reasonably necessary in the best interest or the organization‖ • Model Rule 4. is ongoing. Advocacy in Nonadjudicative Proceedings May you argue that the Dept. but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. That would likely be the case here. Why? e. lawyer is forbidden from furthering a course of fraudulent conduct. Typical language something like: ―I have withdrawn for ethical/professional reasons.2(e) requires evidence of a material violation: ―credible evidence. Model Rules 4.2.(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. should you give a “notice of withdrawal” to other parties? ABA Formal Opinion 92‐366: A lawyer who knows or with reason believes that her services or work product are being used or are intended to be used by a client to perpetrate a fraud must withdraw from further representation of the client.
that is ―likely to result in substantial injury to the organization. Willful ignorance is not allowed. in practice it doesn‘t necessarily make a big difference. SEC regulations require awareness of evidence such that it would be unreasonable for an attorney not to conclude that fraud is likely afoot. BUT Lawyer must investigate if anything seems suspicious. o Under SEC regulations…If lawyer works under a supervising attorney. which allow permissive disclosure) 29 .13 specifies ―violation of a legal obligation to the organization‖ or legal violation that might be imputed to the organization. • CLO must investigate the problem and report back.‖ • 1. or incorrect. but the evidence is not there yet. g. Securities fraud is ordinarily a continuing crime.6 and 1. permitted to disclose company‘s conduct to the SEC ―to the extent the attorney reasonably believes necessary‖ to prevent or rectify conduct ―likely to cause substantial injury to the financial interest of property of the the issuer or investors. • If she does not get a satisfactory response. • Unless the reporting lawyer receives a timely and appropriate response.13 and the SEC regulations differ? • SEC regs apply only to people ―appearing and practicing‖ before the SEC. o How do the requirements of Model Rule 1. she must report the problem to the client‘s audit or compliance committee or to the client‘s board of directors. If lawyer should know that further investigation would prove that statements are false.‖ (adapted before the new 1. Otherwise: • Lawyer must: report the problem to the client‘s chief legal officer (CLO). can just report to them. Does this apply here? Probably. h.13 requires actual knowledge.13 limited to information ―related to the representation‖ • 1. Information from friend/director should raise suspicions about truthfulness of legal opinion.13. agencies may be next) o Why should the desire to protect the public against securities fraud require a compromise of lawyers‟ ethical standards? o Lawyer is preparing documents that he knows (potentially many) 3rd parties will rely upon in making their investment decisions. then they are false (see ABA Formal Opinion 346). SEC Authority: Policy considerations? Should the SEC have the authority to discipline attorneys whose conduct results in inadequate disclosures or other violations of securities laws? Pros: ‐substantive expertise ‐additional oversight Cons: ‐May try to unduly harass or coerce attorneys ‐More appropriate for the Bar to discipline attorneys ‐Slippery slope (other govt. incomplete. so there would be no obligation to protect those confidences anyway. o Not like dealings with IRS where you are just giving advice to client and the IRS will not depend on lawyers‘ statements/advice.o Do we have that here? Violation would be material. o However. Lawyers’ duties to investigate May the securities lawyer accept the client‟s representations about matters to be disclosed? Must the lawyer independently investigate the client? Under ABA formal opinions and case law. lawyer usually permitted to accept clients‘ information (see ABA Formal opinion 335). • Under SEC regulations. she must explain that to them. • 1.
The action is frivolous. Comment 3: ―The lawyer‘s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.385-403 a. modification or reversal of existing law. pp. law firms can still be liable for their own negligent.g. or the respondent in a proceeding that could result in incarceration. o DC Ethics Opinion 320 (2003): Arguments for jury nullification of existing law are also permissible. Lawyer can make the prosecutor meet its constitutional burden of proving every element of the offense. unless there is a basis in law and fact for doing so that is not frivolous. ABA position is that client‘s purpose is not relevant to the objective merits of the client‘s claim • Thus. however. Ethics Opinion 88‐F‐117 (1988): attorneys cannot file motions to suppress with no basis 30 . is that they inform themselves about the facts of their clients‘ cases and the applicable law and determine that they can make good faith arguments in support of their clients‘ positions. Should you be liable to investors in an offering of securities if your investigation is inadequate or if you fail to prevent fraudulent conduct by your clients? Courts have held that the securities statutes don‘t provide private cause of action for civil damages based on ―aiding and abetting‖ claims. groundless claims – Sometimes bad motive is evident (e.1 in the criminal defense context Does it matter whether the appeal is a criminal conviction or civil verdict? Model Rule 3.1 A lawyer shall not bring or defend a proceeding. ridiculous defamation and discrimination suits) – Zdravkovich (Md.1 by attempting to remove action to federal court when clearly not allowed) – In re Richards (N. 5. no reference to lawyer‘s state of mind. 1999) (lawyer relied on clearly inapplicable precedent) – Filing a time‐barred case is not necessarily frivolous Model Rule 3. material misstatements. ‐Objective standard. if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension. may nevertheless so defend the proceeding as to require that every element of the case be established ―not frivolous‖ standard. however. modification or reversal of existing law. Policy concerns a.1 case law • Fairly high bar • These cases tend to involve lawyers making truly baseless. But Tenn. 2000) (lawyer violated 3.‖ Lawyers can enter non‐guilty pleas and defend their clients even if the plea is frivolous. Comment 2: The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client‘s position ultimately will not prevail. (see Central Bank andStoneridge) • But under case law (Mehaffy.1 case law Model Rule 3. which includes a good faith argument for an extension. Casebook. What is required of lawyers. Model Rule 3. Ethical Issues in Litigation.• This does not apply if lawyer has been hired to investigate wrongdoing that has already been reported.1. A lawyer for the defendant in a criminal proceeding. i.M. Enron). or assert or controvert an issue therein. mixed motives are permissible. Model Rule 3.
– Attorney‘s fees (only relating to the Rule 11 violation) • Non‐monetary: 1. slide 19) Policy trade‐offs? o Pros: ‐Forces lawyers to do homework. unnecessary delay or needless increase in litigation costs) • The legal claims. but non‐frivolous motions may be found to violate Rule 11 if clearly driven by improper motives. or to gain inappropriate leverage • Courts have different positions about the mixed motives issue: o – Some courts (2nd Circuit and 4th Circuit) find that bad motives do not matter if there is also a valid purpose and warranted judicial relief. • Other improper purposes: publicity. formed after an inquiry reasonable under the circumstances. 3.— • No improper purpose (harassment. or even a requirement to raise every non‐frivolous issue b. but are limited to deterrence considerations. • Modest sanctions usually appropriate but depends on the nature of the offense 2. or reversal) • All factual contentions (or denials) have evidentiary support or are likely to after further investigation or discovery Applies to all papers submitted to trial courts in civil actions (excluding discovery materials). Frivolous legal claims under Rule 11 o • Legally frivolous if ―no chance‖ of success under existing law. – requiring offender to attend seminars o NOTE: sanctions intended to deter the attorney from violations.This is not a right (or requirement) to raise frivolous issues at trial or on appeal. have merit (either warranted by existing law or by a nonfrivolous argument for the extension. 2. – Penalties paid to the court a. o – Objective standard: ―empty head. 2. and belief. if there is no pattern of such conduct. • Candor before the tribunal is advisable here. – reprimand. – striking the offending paper. not the client. Possible Rule 11 Sanctions o • Sanctions up to the trial court‘s discretion. pure heart‖ not a defense. (pp20. embarrassment or intimidation. o – Following client‘s wishes/commands no defense. Other Rules Against Frivolous Litigation: Federal Rules of Civil Procedure. modification. Rule 11 (a) Paper shall be signed by attorney of record in the attorney‘s individual name… (b) Signee certifies that to the best of the person‘s knowledge. • Each claim is analyzed separately. o – Non‐frivolous initial filings almost always proper. reduces costs to courts and opposing parties 31 . o Not clear that the sanctions would be high in our case. no intent to injure. information. • Depends on the nature of the claim: generally must be some basis to believe that Court may rule differently than in past. o • Can be difficult to determine whether arguments to change the law are frivolous or not – Litigants are not generally forbidden from requesting that court reconsider past rulings or interpretations 1. Monetary 1. • It is implied that the lawyer should read the document. o – Other courts (5th Circuit)– this does not apply if it can be established that improper motive was a ―but for‖ cause of the filing.
―Third‐party neutrals‖ Model Rule 3. •Benefits of improper delay do not count as an interest of the client. 6. lawyer may be sanctioned for bad faith under Chevron Chemical reasoning. A lawyer shall not counsel or assist another person to do any such act‖ Is that really what is going on here? Here. Maybe broad reading of 8. attorney may have less burden. • Failing to make adequate verification of the facts may result in sanctions (including opponents‘ attorneys‘ fees) • Lawyers‘ investigation burden depends on the circumstances: o – When time is of the essence.2: ―A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. should explain the difference. pp. d. • Lawyer serving as a third‐party neutral shall inform unrepresented parties that the lawyer is not representing them and.o Cons: o ‐Can lead to drawn out collateral litigation ‐Sometimes Rule 11 motions over other side‘s Rule 11 motions o ‐Can be used to bully attorneys o ‐Can be unpredictable and inconsistently applied. Litigation Tactics. Requirement to expedite litigation Model Rule 3. Attorney Obligations • Lawyer must have evidentiary support for factual allegations (includes client‘s first‐hand version of events) • If no first‐hand evidence.403-421 a.4 • Third‐party neutral assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Why care? Pros: ‐Pursuit of truth/ administration of justice 32 .‖ Mixed motives still permissible e. when necessary. there is a significant potential for confusion when the parties are unrepresented in the process (Comment 3). since judges have a lot of discretion c.‖ e. Casebook. suggestion would not be ―unlawfully obstructing‖ per se. f. lawyer must identify those items as likely having evidence that will be found during discovery. but must follow up promptly. • May include service as an arbitrator or mediator. Still. •―Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party‘s attempt to obtain rightful redress or repose…The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client. Obligations to make witness available What obligation do you have to make witnesses available for trial and for deposition of the opposing party? Can lawyer suggest non‐emergency surgery? Model Rule 3. – Extra requirement because unlike non‐lawyers who serve as third‐party neutrals.4(a) Lawyer shall not ―unlawfully obstruct another party‘s access to evidence or unlawfully alter. destroy or conceal a document or other material having potential evidentiary value.4(d): ―conduct that is prejudicial to the administration of Justice‖ a.
E. 1996): court found lawyer‘s racial decision permissible Can a lawyer aggressively question witnesses whom the lawyer believes is telling the truth? Model Rule 4.4.‖ • Georgia v. religion. 1981): switched defendant at counsel table. in the course of representing a client.4: MISCONDUCT It is professional misconduct for a lawyer to:… (c) engage in conduct involving dishonesty. Weatherwax (3rd. delay.M.1. Cherryhomes (N.. d. zealous representation ‐Lack or rules leads to unevenly applied sanctions ‐Possible 1st Amendment issues too Wearing different clothes to court as you do the office (PP 21. . Cir.4(d) Would it be proper for Martin to have a low‐income employee sit at the counsel table instead of a company manager to make the company appear nearly broke? Was the incident with Martin‟s secretary improper? Do any rules apply? • Model Rule 8. 2004): Prosecutor accused expert witnesses of fabricating testimony (with no evidence). or use methods of obtaining evidence that violate the legal rights of such a person. T. 1992) (fined for wearing a bandanna instead of a tie) RULE 8. allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence…‖ • Possibly Model Rule 3.4(e) and 8.B. (1994) (sex‐based challenges) • Leesville Concrete (1991) (civil litigation) • United States v.4(e): . (d) engage in conduct that is prejudicial to the administration of justice… Model Rule 8. 33 . violates paragraph (d) when such actions are prejudicial to the administration of justice. • Model Rule 3. A trial judge‘s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. national origin. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). p6) .3(a)(1): lawyer shall not knowingly make a false statement of fact or law to a tribunal‖ • United States v.• State v. McCollum (1992): unconstitutional for defense to exercise peremptory challenges based on race. Thorean (9th Cir. a lawyer shall not use means that have no substantial purpose other than to embarrass. fraud. disability. ‐Notions of fair play in an adversarial system ‐Respect for witnesses. 1993) (unmarried females = sex discrimination) Virgin Islands v. deceit or misrepresentation.5(d) engage in conduct intended to disrupt a tribunal. 3. or burden a third person. sex. parties. Alabama ex rel. 3. Sanctioned for violating Rules 3.B. sexual orientation or socioeconomic status.4©.4(a) (a) In representing a client. • What is the primary concern? In re Zawada (AZ. bias or prejudice based upon race.―in trial. • J.4 ―prejudicial to the administration of justice‖ • Possibly Model Rule 3. Omoruyi (9th Cir. knowingly manifests by words or conduct. age. c. • e. ‐Preserving public image and confidence Cons: ‐May have chilling effect on creative. v.Should Martin be subject to criticism for wearing different clothes in court than he wears to the office.b. Comment 3: ―A lawyer who. for example? What rule(s) might apply here? Probably none. etc.
notify. May a lawyer take advantage of a confidential fax that her adversary inadvertently sent to her? What is required of attorney who receives them? Rule 4. later withdrawn. – Admirable.4. Casebook. filed suit against CMR and State Farm. or wait for conclusive court ruling. … (3) offer evidence that the lawyer knows to be false. Comment 2: This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that 34 .1 (received public reprimand) – Attorney said (govt does this too to ―root out evil‖) • DC Ethics Opinion (2004): exception for national intelligence agency employees acting in non‐representational official duties. o – Maldonado v. Client Who Intends to Commit Perjury. May a lawyer use deception as part of law enforcement or other investigatory functions? Not usually.• Cincinnati Bar Ass’n v. has offered material evidence and the lawyer comes to know of its falsity. f. – Colo. the lawyer‘s client.2 and 1. the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.4(c) and 4. A lawyer may refuse to offer evidence. May a lawyer use deception to help catch a criminal? • In re Pautler (Colo 2002): • Prosecutor pretended to be a public defender to get murderer to turn himself in. Rule 3. Statzer (Ohio 2003): sanctioned lawyer for intimidating former legal assistant with false tapes during her deposition. that the lawyer reasonably believes is false. – No public harm exception to Rule 8. court disqualified plaintiff‘s attorney • Metadata: – ABA Formal Opinion 06‐422 (2006): metadata is fair game 7.3.4(b) A lawyer who receives a document relating to the representation of the lawyer‘s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. other than the testimony of a defendant in a criminal matter. g. State (DNJ 2004): [discrim case. If a lawyer.4 a. (stayed for 12 months of probation). • Model Rule 4. Supreme Court suspended him for 3 months. notify the sending lawyer and either destroy or return.3 (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.‖ ABA Formal Opinion 92‐368 (1992): lawyer should refrain from reading. 2000): lawyer pretended to be a chiropractor in order to get info about protocols and guidelines. Whistleblowers: o – ABA Formal Opinion 94‐382 (1994): refrain from reading. the lawyer shall take reasonable remedial measures. pp. – Violated equivalent of Model Rules 8. Model Rule 3. disclosure to the tribunal. follow instructions.‖ Comment 3: ―…Where a lawyer is not required by applicable law to do so. or a witness called by the lawyer. if necessary.1: no false statements of material fact • In re: Gatti (Or.454-475 a. including. See Rules 1. principled ruling? h. Comment 2: ―…in order to permit that person to take protective measures.
3. the advocate must take further remedial action. regardless of the client‘s wishes. This duty is premised on the lawyer‘s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. It is for the tribunal then to determine what should be done— making a statement about the matter to the trier of fact. c. Comment 5: Rule ―requires that the lawyer refuse to offer evidence that the lawyer knows to be false. the lawyer must refuse to offer the false Evidence. the lawyer shall take reasonable remedial measures. If the persuasion is ineffective and the lawyer continues to represent the client. even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1. – Seemed to base the constitutional ruling on history of professional ethics standards. Given our norms about loyalty and the constitutional protections of crim. a lawyer‘s compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer‘s disclosure. Performance of that duty while maintaining confidences of the client. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client‘s case with persuasive force. defendants.‖ b.3. however... Whiteside (1986): No right to commit perjury. what should Hawley do? Should Hawley disclose to the tribunal immediately? Model Rule 3. What if the lawyer discovers that the witness made an immaterial lie under oath but the lawyer has an argument that the factual misrepresentation is not material? Model Rule 3. the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation. why isn‟t the lawyer required to allow the criminal defendant to testify falsely under oath. When Smith takes the stand and breaks his promise to be truthful.‖ Attorney is not allowed to knowingly present any false evidence. d. has offered material evidence and the lawyer comes to know of its falsity. the lawyer should seek to persuade the client that the evidence should not be offered. the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false. – See Model Rule 3. . Comment 10: ―…remonstrate with the client confidentially. Comment 15: Normally. but only required to take remedial measures if the false evidence given was material. although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause.6. how should the lawyer proceed? Model Rule 3..‖ See ABA Formal Opinion 87‐353 (1987): –Lawyer who knows client has committed perjury must disclose this knowledge to the tribunal if the lawyer cannot convince the client to rectify it.3. or a witness called by the lawyer. Comment 2 If the lawyer knows the client wants to testify falsely. 35 . the lawyer‘s client. (a)(3) ―If a lawyer. is qualified by the advocate’s duty of candor to the tribunal. Model Rule 3.undermines the integrity of the adjudicative process.3. Consequently.. advise the client of the lawyer‘s duty of candor to the tribunal and seek the client‘s cooperation with respect to the withdrawal or correction of the false statements or evidence. and then argue to the jury as if the client‟s perjury is truthful? • Nix v. ordering a mistrial or perhaps nothing. the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false. If only a portion of a witness‘s testimony will be false. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence.. Comment 6: If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence. If that fails.3.
Elliot (Ohio.0(f): ‗‗Knowingly.. Comment 9: Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false. Bright (5th Cir. Because of the special protections historically provided criminal defendants. – Court may disagree about whether something was material Is this a good rule? What about the Monroe Freedman argument? – Trilemma: lawyer must determine all relevant facts. How does an attorney ever really „„know‟‟ that a witness will commit perjury? Model Rule 1. o – compromised the integrity of the courtroom. act as officer of the court. h.‘‘ or ‗‗knows‘‘ denotes actual knowledge of the fact in question. 1999): deposition prep crossed the line. See also Comment . Is it permissible to use perjury if the lie comes from government witnesses and its purpose is to trap criminals? Should it be? Not usually. Some courts even ―beyond a reasonable doubt‖ f. hold confidences.‘‘ ‗‗known. A person‘s knowledge may be inferred from circumstances. Offering such proof may reflect adversely on the lawyer‘s ability to discriminate in the quality of evidence and thus impair the lawyer‘s effectiveness as an advocate. v. • Pros: – preserves some of the A‐C relationship. 2003): Not enough that lawyer just doesn‘t believe client. • Resolution Trust Corp. even if it was for a good cause • Operation Greylord? (see Murphy (7th Cir. 1979) (prosecutor had cop perjure self to collect bribe from defense attorney) o – disciplinary action brought against him. – removes lawyer from direct complicity. g. ‐Very high standard. however. this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false.. if Smith tells Hawley a story that appears untruthful. Comment 8: ―A lawyer‘s reasonable belief that evidence is false does not preclude its presentation to the trier of fact.. 36 .. • Abner v.. courts may still find ―harmless error‖ j.. In preparing Smith‟s testimony.. – Did the conduct described there seem appropriate? – Where do you draw the line? a. Lawyer cannot decide whether a client in a criminal case will take the stand to testify in his own defense • Nichols v. 1992): ineffective assistance of counsel bc lawyer threatened to withdraw if defendant testified) –But.although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client. • In re Friedman (Ill. question of fact.3. may Hawley explain to him the weaknesses that the prosecutor would see in his story? Thin line re: witness‐coaching. and reveal to court e. it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. – allows client to defend self. the lawyer must honor the client‘s decision to testify. the lawyer cannot ignore an obvious falsehood. 1993): permissible for lawyers to try to convince witness to sign an affidavit with favorable version of facts. Arkansas (1987) See Model Rule 3. 1985)) i.‖ US v. Model Rule 3. Client has constitutional right to testify (see Rock v.3. Midgett (4th Cir.– But potentially risky to decide that it is not material. Unless the lawyer knows the testimony will be false. Is allowing a client who wants to testify falsely to do so in the form of a narrative a good compromise? • This is the DC Rule and has been allowed in a minority of jurisdictions. Butler (11th Cir.
– can still be pretty prejudicial to defendant. p6 May Gene truthfully respond to the reporter by saying: “the commentator is simply repeating a charge that one of the suspects has made and the suspect is lying?” Rule 3. 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. or a witness called by the lawyer. other than the testimony of a defendant in a criminal matter. Publicity . disclosure to the tribunal. Model Rule 3.6. including: 37 . 1999): • Few cases with prosecutors being sanctioned for such violations (or for police and other non‐attorneys‘statements) • Exceptions: – Michael Nifong‐ Duke lacrosse case.8 (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. and apply even if compliance requires disclosure of information otherwise protected by Rule 1. Comment 5(1): Certain factors particularly likely to be prejudicial. Casebook. refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators. the lawyer shall take reasonable remedial measures. that the lawyer reasonably believes is false.6 or this Rule. (but he denies responsibility) . including. the lawyer‘s client. k.6(a) (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. including. pp. is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures. • In re Morrissey (4th Cir.3 (a)(3) If a lawyer.6. law enforcement personnel.487-521 a. A lawyer may refuse to offer evidence.What limits do the Model Rules place on White‘s use of press conferences and other public statements to tell the public about his office‘s work? Model Rule 3.– signals something is awry • Cons: – allows perjury. if necessary..PP 23. NOTE: Some argue that the deck is stacked against defense attorneys • Most cases involve over‐zealous defense attorneys. The Crusading Prosecutor. – Gansler (Md. 8. Model Rule 3. has offered material evidence and the lawyer comes to know of its falsity. a. 2003) (only issued formal reprimand) . • Shapiro: ―No comment‖ comment is interpreted as a comment and harms defendants. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding. disclosure to the tribunal. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage. if necessary.References to possible future indictments? • Likely improper: not public record and ―substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
.May a prosecutor file a charge that he or she does not believe can be proved beyond a reasonable doubt? Suppose overcharging would help encourage the defendant to enter a plea to an offense the defendant clearly committed? o Under the model rules.8(a)) BUT ABA Standard Relating to the Prosecution Function 3‐3. credibility. There is no constitutional right here. and (3) no other feasible alternative to obtain the information… Fee Forfeiture Cons: • creates a contingency fee in a criminal case (lawyer only collects if client avoids conviction on certain charges—can shape attorneys‘ incentives to plea bargain) • May force litigation against the client (to find ―clean‖ funds) 38 . Model 3. the identity of the persons involved.9(a): should have sufficient admissable evidence to support a conviction. (3) that an investigation of a matter is in progress. (4) the scheduling or result of any step in litigation. offense or defense involved and. suspect in a criminal investigation or witness…‖ Rule 3. reputation or criminal record of a party. yes. ‗the character. except when prohibited by law.6(c): ―fight fire with fire‖ exception possibly applicable. . (2) information contained in a public record. –somewhat higher standard .6 allows certain types of trial publicity does not preclude other remedies against lawyers. (5) a request for assistance in obtaining evidence and information necessary thereto.Model rules do not require the prosecutor to give exculpatory evidence to the grand jury when seeking an indictment.defendants might be less forthright with their counsel if they worried that they would have to disclose information to a grand jury.8(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.‖ NOTE: the fact that Rule 3. but a stretch: ―lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer‘s client. (6) a warning of danger concerning the behavior of a person involved. (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution. Prosecutor shall ―refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause‖ (Model Rule 3. a lawyer may state: (1) the claim. ABA Formal Opinion 94‐385: urges resistance to such a subpoena (all ―nonfrivolous claims‖) Model Rule 3. when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest… .6(b) (b) Notwithstanding paragraph (a).vii.―need‖ requirement: makes defense attorneys the last resort.Should lawyers have more right than non‐lawyers to resist a subpoena to produce records or appear for questioning? o Concern over the chilling effect: .
• Not clear that there would be any duty to the victim not to make her psychiatric studies public.6(b)(1).Cooperation now about disclosing all relevant facts.Prosecutors not allowed to request waiver or consider JDAs or fee advancement x. RULE 3. JDAs. – BUT doesn‘t prevent disclosure either. except when the prosecutor is relieved of this responsibility by a protective order of the tribunal‖ .Consequences can be very serious (disbarment. p 16) Do you have any duty to the court that tired the case or to the man he believes is wrongly convicted? o Not under the model rules. dismissed cases). So far. for example? The prosecutor (former or current)? Model Rules 3. pertains to all favorable evidence). in connection with sentencing. – Undermines the adversarial system xi. bring about justice – Deterrence Cons: – Something unseemly about forcing companies to sell out their employees and officers – Potential for confused employees to be exploited by their companies and their attorneys. • Rule 3. • No obligation to the imprisoned man. suspension.8(d): The 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. • The ordeals of Alton Logan and others establish this xii.ABA Ethics Opinion 09‐454 (Rule 3. Does anyone have an obligation to listen to York? Would former defense counsel have such an obligation. Cooperation Holder Memorandum (privilege waiver.3: only applies to lawyers involved in the original proceeding and only until the end of the case. not privilege waiver .• May need to withdraw because of the unreasonable financial burden viii. and. and attorney fee advancement). Q from 24.8 39 . disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor. Thompson Memorandum (Holder considerations mandatory) McNulty Memo (liberalized but broad exceptions remained) Stein: due process violation in the KPMG case (govt action). Should it be improper for a prosecutor to reduce the sanction on a corporate defendant in exchange for assistance in prosecuting the culpable officers or employees of the corporation? Pros: – Easier to identify and punish wrongdoers.Brady (and Bagley)– constitutional right to (material) exculpatory evidence relating to guilt or punishment (―reasonable probability that…the result of the proceeding would have been different‖) . Disclosure What rules govern the obligations of a prosecutor to provide favorable evidence to the defense? Should a prosecutor disclose all favorable evidence or just material exculpatory evidence? .(PP23. Story from PP 23. Filip Memorandum . no court has held life imprisonment to constitute ―substantial bodily harm‖ under Rule 1.8(d) is broader. ix.
• Public need for information (especially for unsophisticated. Model Rule 7. (i) promptly disclose that evidence to the defendant unless a court authorizes delay. and (2) if the conviction was obtained in the prosecutor‘s jurisdiction.3) Rule 1. Referrals to Specialists. No formal ethical obligation if the case is over and appeal period finished (Rule 3. Comment 3): ―Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment… Limiting the information that may be advertised… assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.‖ d. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor‘s jurisdiction was convicted of an offense that the defendant did not commit. A communication is false or misleading if it contains a material misrepresentation of fact or law. recorded or electronic communication. or omits a fact necessary to make the statement considered as a whole not materially misleading. Marketing Legal Services. the alleged link btw advertising and professionalism and reputation – Increases the difficulty of finding ―the lowest‐cost seller of acceptable ability‖ Advantages established attorneys . pp. Model Rule 7. esp. deceptive or misleading advertising • The Supreme Court sets the range of allowed regulation. 9.2: Allows attorney advertisements through written.522-558 a. regardless of medium(see Comment 1) Misleading if ―substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer‘s services for which there is no reasonable factual foundation‖ (Comment 2) c. credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted. Non‐advertisement communications – Scholarly articles – Responding to reporters‘ questions – Presentations at legal conferences or educational settings 40 .6 allows disclosure here (but you may want to go up the ladder first). or make reasonable efforts to cause an investigation. and (ii) undertake further investigation. state bars and courts issue the rules b.Ruling did not apply to false. the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority.1: ―A lawyer shall not make a false or misleading communication about the lawyer or the lawyer‘s services.‖ Governs all communications about a lawyer‘s services. keeping fees high (cynical view) • Protecting image of the profession • Protecting citizens against exploitation and invasions of privacy • ―stirring up litigation‖ (found to be invalid) Supreme Court has played a major role in this area • Bates v State Bar of AZ (1977) – Found the state interest unconvincing. decreasing competition.2. lowerincome) • Allows basic information (see Comment 2) Policy (Model Rule 7. Casebook. the prosecutor shall seek to remedy the conviction. to determine whether the defendant was convicted of an offense that the defendant did not commit. What are state‘s interests in regulating attorney communications and advertising? • Protecting established lawyers.(g) When a prosecutor knows of new.
Comment 3: ― …an unsubstantiated comparison of the lawyer‘s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. 1985). – Went For It. • less pressure.3 (b) A lawyer shall not solicit professional employment from a prospective client…if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer. Phone Calls to Past and Present Clients Model Rule 7. What about Harrold‘s writing that some of his former clients agree to act as references? Model Rule 7. Requiring disclaimers: • Depends on the factual context . allows recipient time to reflect • (some states have disagreed and continued to push the envelope). e. h. Nondisclosure of that court fees not included in flat rate Is Harrold‘s failure to disclose that clients will have to pay court fees unethical? Unconstitutional? . j. 41 . or (2) the solicitation involves coercion.1. unless the person contacted: …(2) has a family. close personal. Any ethical concerns about his statement that “most of my clients have found that it saves them a great deal in legal fees…”? o This is potentially misleading speech that the state may regulate. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client g. but the mere fact that they are references does not. Comment 3: Misleading if ―presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client‘s case. .Depends on state rules. (1995): Florida prevented plaintiffs attorneys (but not defense attorneys) from targeted direct mail to victims 30 days following an accident or disaster.. 1998): Not permissible for states to require disclaimer warning possible clients about the consequences of lying f.‖ Does this cross the line? No. Inc. NY Bar found that if primary purpose is to convince audience to retain the lawyer. but courts sometimes reject states‘ claims about the potential for mispresentation . Targeted mailing: constitutional issues • Court treats more like advertisements than solicitation Shapero (1988): struck down Kentucky‘s attempt to ban mailings based on specific events. Testimonials can be misleading. or prior professional relationship with the lawyer. Model Rule 7.filing fees and other costs (Zauderer.3 (a) A lawyer shall not by in‐person. States can require him to add a disclaimer re: .1. live telephone or real‐time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer‘s doing so is the lawyer‘s pecuniary gain. duress or harassment. then it is considered an advertisement.– Permissible if to ensure no misrepresentation occurs.– Tillman (11th Cir.Cannot follow up with plane crash victims families in person Model Rule 7.– Speeches to public Depends on facts.
including the share each lawyer will receive. Rule 1. l.3. such as the Internet.2. Comment 2: A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. Some important legal skills. some pressure to enter agreement. and over‐reaching.3(a) for the prohibition against the solicitation of a prospective client through a real‐time electronic exchange that is not initiated by the prospective client.Yes. – but not nearly as coercive (easier for recipient to disengage) 10. Casebook. NOTE: Technically not allowed to collect ―referral fee‖ but you can ―divide the fee‖ • What are the policy concerns regarding referrals? – Chasing and selling clients (but so what?) • What are the benefits? 42 . 594-610 a. pp. but serve important purposes Model Rule 7. electronic media. and (3) the total fee is reasonable. m. A lawyer can provide adequate representation in a wholly novel field through necessary study. which are strongly recommended. and the agreement is confirmed in writing. Roles and Responsibilities in Law Firms. prohibiting television advertising. Competent representation can also be provided through the association of a lawyer of established competence in the field in question. Policy concerns re: solicitation ban • ―the lawyer‘s presence and insistence upon being retained immediately. Comment 3: ―Television is now one of the most powerful media for getting information to the public. Comment 1) • There are safer alternative means (pre‐recorded. A newly admitted lawyer can be as competent as a practitioner with long experience. Internet chat‐rooms Should “real‐time electronic contact” be treated more like in‐person solicitation or letters/advertisements? • An intermediate medium: – Real‐time. etc).) k. Television Ads Drive state bars crazy. if they abide by Model Rule 1. • Prospective clients ―may already feel overwhelmed by the circumstances. a skill that necessarily transcends any particular specialized knowledge. ―may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self‐interest‖ (7. (2) the client agrees to the arrangement. b. written.• Narrower than Shapero. such as the analysis of precedent. Division of Fees PP 25 Can Ramirez refer the case to Castro? . particularly persons of low and moderate income.559-574.1. are required in all legal problems.‖ The situation is fraught with the possibility of undue influence. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve. intimidation. • can be permanently recorded so that they cannot be disputed and may be shared with others. therefore.‖ Similarly. would impede the flow of information about legal services to many sectors of the public. can be an important source of information about legal services. But see Rule 7.5(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. and lawful communication by electronic mail is permitted by this Rule. specific population and time window (sparing already traumatized victims from the pain of seeing lawyer pamphlets. the evaluation of evidence and legal drafting.
fraud.1(b). or has direct supervisory authority over the other lawyer. possible significant payday for relatively little work c.‖ Model Rule 5. and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Why the concern about lawyers calling themselves specialists? • Fear that lawyers will play upon the ambiguity of the term to exaggerate their skills and experience. Model Rule 5. safe way to gain experience. and (2) the name of the certifying organization is clearly identified in the communication. Comment 1: ―a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor‖ 43 . and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm.Supervisor’s Responsibility Model Rule 5.1(a).Unreasonable billing – Rule 1.4(c) .1(c): A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or. Specialists Model Rule 7. deceit or misrepresentation‖ Rule 8. unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association. but still responsible for oversight under Rule 5. ratifies the conduct involved.1.Supervisor in example (pp25) was responsible because: (1) No reasonable efforts taken under 5.Would Able‟s liability be different if he had been instructed to overbill by his superiors? Model Rule 5. 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. account for client funds and property and ensure that inexperienced lawyers are properly supervised. Billing for hours never worked .4 (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law.. Responsibility if instructed by superiors . Such policies and procedures include those designed to detect and resolve conflicts of interest. ―A partner in a law firm.1(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.‖ . Co-managing partner also responsible? Not quite (no 5. • States have considerable discretion to set their own standards (but must be even‐handed) d.– Clients‘ best interests. identify dates by which actions must be taken in pending matters. (2) Also.―Conduct involving dishonesty.5(a) . with knowledge of the specific conduct. or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices..1(c) violation). Comment 2 ―[Rule] requires lawyers with managerial authority…to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance.‖ Depends on the organizational context (see Comment 3) e.2.
2 A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause.‖ Substantial majority of pro bono hours should be devoted to: (1) persons of limited means or (2) charitable. perhaps. civil liberties or public rights‖ and includes ―activities for improving the law‖ (b(3)) Why should lawyers have pro bono responsibilities when other professionals do not? o • They are officers of the court o • It is necessary for adversarial system to work o • It can inform the public. such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law. If a lawyer refuses a direction to do something illegal.Although some attorneys have personal incentives.Also extends to parties ―seeking to secure or protect civil rights. c.630654 a. – Question is whether they can recover damages – Early cases (Illinois): lawyers cannot recover damages – Other courts have mostly refused to follow (incentives) • What about for law firm associates fired by partners? – Cases mixed: Wider and Lichtman v.BUT Model Rule 5. or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client‐lawyer relationship or the lawyer‘s ability to represent the client. Limitations on Court Appointments i.2(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. MJD practices. What is the basis of the should/shall distinction between Model Rules 6.1 and 6. Important source of ethical issues. Jacobson and Bohatch 11. Unauthorized Practice. this is essentially a tax b. civic. and Ancillary Legal Services.2? Do cases holding that defendants have a constitutional right to counsel necessarily imply that attorneys must bear the uncompensated burden of such representation? Is this distinction principled? Tradition and the aura of the constitutional rights. ―Voluntary‖ pro‐bono work Model Rule 6. community. does that lawyer have any protection against being fired for it? • General rule: clients can fire lawyers for any reason they want. Appointment by tribunal Model Rule 6. pp. Casebook. governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means.1 Every lawyer has a professional responsibility to provide legal services to those unable to pay. 44 . f. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.‖ Nothing arguable about attorney‘s duty not to bill fraudulently. increase public faith in the profession o • Moral obligation? . (b) representing the client is likely to result in an unreasonable financial burden on the lawyer. religious. and .
money can come with limitations d. ABA Task Force considered listing specific tasks but ltimately left it to the individual states. Bradshaw. Computer-assisted drafting programs .Courts have often treated this as practice of law.2007)(no legal advice was involved. . makes it harder for courts to regulate the profession. Representing outside of your licensed jurisdiction .D. Ferri v. Unlicensed Practice of Law .• Parsons Technology (N.1999) (helping clients fill in blanks on divorce and real estate forms was UPL)) but courts/bar assocations seem to be moving away from this.5.A lawyer…may provide legal services on a temporary basis in this jurisdiction that: 45 ii. Kentucky court rejected this. or assist another in doing so. clearly a demand for these products h. federal agency • Govt. . entering factual information into forms is not legal work.Generally does not constitute the unlicensed practice of law • As a general matter. .App. if unlicensed practice is so terrible? It is a narrow exception that ultimately undermines the rule. selected and completed bankruptcy forms—UPL . Zarabia v. per se.• Kistler (9th Cir.Tex. 912 P. interferes with right to counsel. • Condra (Ind. threatens the adversarial system. comment 2). Should counsel be appointed in civil suits? What are the pros and cons? .The definition very vague.―A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Maas (Fla.2d 5 (Ariz.Courts not allowed to impose undue burdens or unreasonable limits on counsel: Olive v. filling in the blanks was well within the skill set of the nonlawyers) • Kentucky state bar issued advisory opinion arguing that performance of a real estate closing was unauthorized practice of law. . takes $$ from attorneys Then why do we let people act pro se. Why not develop a more robust publicly‐funded system. Ackerman (1979) (indigent federal criminal defendant may file malpractice suit against appointed counsel).Model Rule 5. g. like with medicine/healthcare? • Legal Services Corporation (LSC). Filling in the Blanks . Books are usually not unlicensed self-practice of law f.2002): Cap on post‐conviction relief in capital cases unconstitutional.Definition is ―established by law and varies from one jurisdiction to another‖ (Model Rule 5.1999): overturned – Quicken Family Lawyer program‐‐UPL .Why such strict regulations of the unlicensed practice of law? Endangers clients. The practice of law .5c: .5(a)) But what is the practice of law? . • Some caselaw to the contrary (see Glasgow (Tenn. e.Mallard (1989): limits on court authority to appoint counsel in many civil cases (can only ―request‖).Model Code EC 3‐5: services that requires attorneys‘ ―professional judgment. iii.• Some public backlash – TX decision overturned.‖ (Model Rule 5.2007): program took client facts.1996): system for appointing counsel from a pool that included lawyers with no experience in either criminal law or trial work unconstitutional. representing themselves in court or in negotiations.‖ applying the law to the specific legal problem of a client.
(2) are in or reasonably related to a pending or potential proceeding before a tribunal …. . . if…authorized by law or order to appear in such proceeding or reasonably expects to be so authorized.Model Rule 5.How do these principles apply to the practice of accounting firms hiring lawyers full‐time to give corporate and transactional advice to the firms‟ business clients? What should be the content of an ethics rule dealing with „„one‐stop business services‟‟ by accounting firms? 46 - . concerns about disciplinary authority Ban on corporate practice of law .Also.4 . Many states allow this though.i.(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.Concern is about lawyers‘ independent judgment being controlled and compromised (see Comment 2). Partnerships with Non-Attorneys .(1) a nonlawyer owns any interest therein.(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. One-Stop Shops .What about insurance companies who hire lawyers as full‐time employees to represent the company‟s policyholders in actions brought by third parties? Is that simply a more efficient way to .Federal law preempts state rules in some instances: tax preparation.(3) …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. . .This is potentially very expansive.A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit.(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.‖ he is in trouble.4(d) .If expecting to appear before a tribunal. or .(c) A lawyer shall not permit a person who recommends. or .5c(2) . employs. But he could possibly argue that he just helps the company when it needs his legal advice.Model Rules very concerned about attorneys working with non‐attorneys. . Plausible? Full Time Representatives for Company Policyholders . a licensed lawyer. does general estate planning work for the customers of an insurance company? . .(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility…. patent filing and research. (1) are undertaken in association with a lawyer who is admitted to practice…. or pays the lawyer to render legal services for another to direct or regulate the lawyer‘s professional judgment in rendering such legal services. under 5. pension planning – See Model Rule 5. l.Why the concern? Is it justifiable? . seems like a violation. If Dowd is ―practicing with the corporation. .Model Rule 5.Debatable in our case. except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration.5c(4)).Should courts be concerned if Dowd. .pay the lawyers? If lawyer is employee of the insurance company and is in that role providing legal services to third party. j. very subjective (see 5. k. if: . . pro hac vice usually required.5(d)(2) (―services that the lawyer is authorized by federal or other law to provide in this jurisdiction‖). FDIC savings & loan legal documents.
• ABA rejected.Could Dowd eliminate all problems with his multidisciplinary organization if he simply ran it out of .Quite possibly.Law firms can hire accountants. if he abides by the restrictions of Rule 5. insurance specialists. . m.The biggest sticking point involves conflict of interest rules. lobbyists as employees. . just not as equal partners. but directed the ABA Ethics Committee to investigate‗‗sideby‐side‘‘ relationships between law firms and other service providers. - 47 .4. . This would eliminate all of the major accounting firms.• The ABA Commission on Multidisciplinary Practice (MDP) issued favorable report in 1999 and proposed a new rule to regulate such firms. Law Firm Based? .his law firm? .
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