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1.0 Terminology 3.7 3.8 3.9 Lawyer as Witness Special Responsibilities of a Prosecutor Advocate in Non-adjudicative Proceedings

Client-Lawyer Relationship 1.1 Competence 1.2 Scope of Rep + Allocation of Authority 1.3 Diligence 1.4 Communications 1.5 Fees 1.6 Confidentiality of Information 1.7 Conflict: Current Clients 1.8 Conflict: Current Clients: Specific Rules 1.9 Duties to Former Clients 1.10 Imputation of Conflicts of Interest 1.11 Special Conflicts of Interest for Govt Employees 1.12 Former Third-Party Neutral 1.13 Organization as Client 1.14 Client with Diminished Capacity 1.15 Safekeeping Property 1.16 Declining or Terminating Representation 1.18 Duties to Prospective Client Counselor 2.1 Advisor 2.3 Evaluation for Use by Third Persons Advocate 3.1 Meritorious Claims and Contentions 3.2 Expediting Litigation 3.3 Candor toward the Tribunal 3.4 Fairness to Opposing Party and Counsel 3.5 Impartiality and Decorum of the Tribunal

Transactions with Persons Other Than Clients 4.1 Truthfulness in Statements to Others 4.2 Communication with Person Represented 4.3 Dealing with Unrepresented Person 4.4 Respect for Rights of Third Persons Law Firms and Associations 5.1 Responsibilities of Supervisory Lawyer 5.2 Responsibilities of a Subordinate Lawyer 5.3 Responsibilities Regarding Assistant 5.4 Professional Independence of a Lawyer Public Service 6.1 Voluntary Pro Bono Publico Service 6.2 Accepting Appointments Information About Legal Services 7.1 Communication Lawyer's Services 7.2 Advertising 7.3 Direct Contact with Prospective Clients 7.4 Communication of Specialization 7.5 Firm Names and Letterhead Maintaining the Integrity of the Profession 8.1 Bar Admission and Disciplinary Matters 8.3 Reporting Professional Misconduct 8.4 Misconduct 8.5 Disciplinary Authority; Choice of Law

Problem Analysis 1) Identify Actors + Lawyer Duties

a. Clients (Organization? Limited representation? Agreement in writing?) b. Non-clients (Duties? Foreseeable?) c. Lawyers (Firm? Solo? Govt?) a. Common Law (Tort & Contract) b. Statutes? c. Restatement Section 6, 51, 56-57

2) Spot Issues (Rules + Privilege/Work Prodct) 3) Connect Facts to Rules

a. Rule Number, Language, Elements b. Restatement

4) Identify Remedies

5) Discuss Case Law 6) Discuss jurisdiction requirements a. Consult local rules b. Consult local opinions on out-of-jurisdiction cases. 7) Perspective

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Who is a Client? Except by appointment, lawyers have no obligation to take cases. CRIMINAL: constitutional right to counsel CIVIL: no constitutional right to counsel
o o Court MAY NOT Bind Lawyer in Civil Action (Mallard v. US Dist. Court) UNLESS the principle reason for refusing a client is indigence. (Bothwell ) Policy Arguments: fair and just adjudicative process Courts must be empowered to take measures to maintain justice system Lawyers have exclusive key to meaningful participation.

Accidental Clients (Restatement 51: Duty to Non-Clients) Type Prospective Clients Nonclients Lawyer invites reliance 3dP intended beneficiary Joint Clients Insurance Defense Organizations Clients Who Morph Court Appointments Rule 1.18 Restatement Qualifications 15 51(2)(a) 51(3)(a) not too remote
will not impair obligations to client & absence of duty would make enforcement of obligations unlikely

1.8 134 1.13 Quasi-Clients , Imputed Clients

Factors to consider when appointing civil counsel for indigent clients: (1) complexity (2) ability of P to investigate facts, (3) Conflicting testimony, (4) Ps ability to present Claims, (5) Ps ability to obtain own counsel. (if market, use market analysis)

Pro Bono Service Control and Communication


Informed Consent 1.0(e): agreement by a person to a proposed course of conduct after the lawyer
has communicated adequate information and explanation about the material risks and reasonably available alternatives to the proposed course of conduct.

Client: (1) Understood information (2) Appreciated Consequences of their Choice (3) Used Reason to Evaluate the information Lawyer: Duty to explain 1.4(b)

Competence Malpractice and Breach of Fiduciary Duty o Togstad v. vesely, Otto, Miller, & Keefe o Engagement, Nonengagement, and Disengagement Letters o Tort Liability

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Ineffective Assistance of Counsel o Roe v. Flores-Ortega o Lawyers and Clients: Criminal Defense Duties to Nonclients o Misrepresentation Greycas, Inc. b. Proud Dishonesty, Fraud, Deceit, and Misrepresentation o Aiding and Abetting Chem-Age Industries, Inc. Glover Duties to Nonclients

Privilege (Protection from COMPELLED disclosure) Restatement 68-86 COMMUNICATION: communication (made for the purpose of seeking legal advice) is privileged, but the facts are not. CRIME/FRAUD EXCEPTION (Will a lawyer have to testify against client?) 1. Is it privileged communication at all? Statement made between client and lawyer AND to seek legal advice? 2. Did the client USE the advice to commit a crime? Even if the lawyer did not know that the advice would be used to commit a crime. 3. Was the advice obtained and advice used in furtherance of the crime? If the advice was about a landlord issue, and an off-hand admission made about another case? If advice was about something else, crime/fraud exception does NOT apply (still privileged). (Lawyer didnt help, knowing or unknowingly) 4. Is there ALSO a confidentiality problem? 1.6(b)(1)

Work-Product Immunity Restatement 87-93

Confidentiality GENERALLY Fiduciary Duty o Matter of Anonymous o Perez v. Kirk & Carrigan o The Directive Lawyer and Fiduciary Duty Evidentiary Protections: Attorney-Client Privilege and Work Product Immunity o Hughes v. Meade o Dean v. Dean o Upjohn Co. v. United States o Representing Organizations

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Express or implied Authority /Waiver o In re Pressly o United States v. Citgo Petroleum Corp.

CONFIDENTIALITY EXCEPTIONS Physical harm o Hawkins v. King County o Purcell v. District Attorney for the Suffolk District o Spaulding v. Zimmerman o Swidler & Berlin v. United States o Bounds of the Law: Court Orders Financial Harm o The Opinion Letters o In re American Continental Corporation/Lincoln Savings and Loan Securities Litigation o The instrumental Lawyer and the Bounds of the Law o United States v. Chen o The Bounds of the Law: Client Fraud Seeking Advice and Self-Defense o Meyerhofer v. Empire Fire & Marine Insurance Co. Compliance with Law or Court Order: Physical Evidence o People v. Belge o NY Penal Law 205.50

Conflicts of Interest Clients, Lawyers, and Third Persons Introduction o Maritrans GP Inc. v. Pepper, Hamilton & Scheetz o Losing a Client by Disqualification or Injunction Client and Lawyer Interests o Monco v. Janus o It wasnt the money o In re Halverson o Sexual Relationships with Clients Client and Third-Person Interests o Paradigm Insurance Co. v. the Langer Law Offices, P.A. o Insurance Defense

Conflicts of Interest: Multiple Clients Current Clients Former Clients Imputed Clients

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Government Lawyers

Fees and Client Property Hourly Fees o Retainer (Paid up front, earned over time, refundable) Contingent Fees o Not in family or criminal law. o Must be in writing. Flat Fees o Engagement Fee (Paid up front, earned up front, merely for taking the case) Fees on termination Statutory Fees

Lawyers and Justice: The Limits of Advocacy Frivolous Claims, Discovery Abuse Bias (Be nice. 4.4) Old Rule: DR 7-101 (avoid offensive tactics, treat courteously) Motions to Exclude: cannot be based on prejudice alone. (race, disability) o Judicial Rule 2.3(c) (p. 325): judge must prevent harassment by lawyers

Communication with Unrepresented and Represented Persons Represented: 4.2 o Client seeks OPPOSING COUNSEL STOP the other side from talking. MUST get the other side to confirm that their client (1) has permission or (2) is no longer represented. [4.2 Comment 8] o Client seeks SECOND OPINION Non-opposing lawyer may give second opinion (no conflict). Unrepresented: 4.3 o Identify self, and client you represent. o Be CLEAR that you are not disinterested o With laypeople, be extra clear. o Give no legal advice to unrepresented people (except to get lawyer) Organization Represented: 1.13 o 4.2: Opposing counsel CANNOT contact: Messing, Rudavsky, Weliky Manager/Supervisor/Director (with regard to THIS matter) Person whose acts/omissions may be imputed to the company. Person who has authority to bind the company in the matter. o 4.3: Opposing Counsel MAY contact: Former employees Current employees who are WITNESSES. (Rstmt 100) Communication through SECRET SPIES

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o 8.4(a): Cant farm out dirty work. Scripting (may redraft, may not write.) o Rstmt 99: More lenient than rule. o Client is Lawyer: Rstmt says lawyer as CLIENT may break anti-contact rule, rules disagree (once a lawyer, always a lawyer) Prosecutor Exception Noncustodial, pre-indictment communication with

Communication with Judges and Jurors 3.5(a): no attempted illegal influence JUDGE-- 3.5(b): no Ex Parte Communication JUROR-- 3.5(c): No communication if (1) illegal, (2) juror severs communication, (3) misrepresentation, coercion, duress, harassment. Judicial Conduct: Rule 2.3

Lawyer as Witness 3.7(a): Lawyer shall not advocate if likely to be called as witness. UNLESS (1) about uncontested issue, (2) about lawyers fees/services, (3) substantial hardship Policy: avoid confused jurors, Tactical Disqualification (Motion to disqualify opposing counsel) o Substantial Hardship Factors SunCrest v. DJ Investment Complexity/length of litigation Size of record Expense and timing of new trial Other partys culpability in hardship

(Self) Regulation of Profession Advertising and Solicitation Varies by region. Advertising 7.1 & 7.2 o Cannot be misleading, must be dignified. o Cannot lead to unjustified expectations (Won $1mil in a dogfight case.) Solicitation 7.3 o No in-person, real-time solicitation (unless for pro-bono) Referrals 7.2(b) o May not trade referrals for money (unless official lawyer referral service) o May not be in an exclusive referral service Firm Names & Letterheads 7.5 o Cannot hold solo practitioner out as a firm.

Remedies Elements of Legal Malpractice Claim: 1. Attorney-client relationship existed 2. Defendant acted negligently or in breach of contract

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o Violation of Rules EVIDENCE of the standard of care. o Might need an expert to testify. 3. Acts were the proximate cause of the plaintiffs damages 4. But-for the defendants conduct the plaintiffs would have been successful in their claim. o Mini-trial on the merits. o Demonstrate the damages that the client would have received Restatement 6: Possible Remedies for Lawyer Wrongs Award of Money o Make client whole o Prevent unjust enrichment o Punitive o Constructive trust o Forfeiture of lawyers fees (Rstmt 37) Clear and serious violation Depends on (1)gravity of harm, (2) timing of violation, (3) willfulness, (4) effect on the value of lawyers work, (5) threatened or actual client harm, (5) adequacy of other remedies. Injunctive Relief o Specific performance of contract o Enjoining nonperformance Court Orders o Specific restoration o Cancellation/Reformation of Contract o Declaratory relief (client can pursue in civil court) o Contempt Case-Damning Remedies o Disqualification of lawyer o Denying admission of evidence wrongfully obtained o Dismissing the claim of a litigant o Granting a new trial Procedural/other sanction

Engagement Letters ENGAGEMENT LETTER AND FEE ARRANGEMENT Date of conference I have agreed to represent you in (matter) OR We have agreed Fee Arrangement o Hourly rate Incurred Expenses Filing fees

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Copying/printing/postage Depos/paying for witness travel When will be billed? Estimated total cost (subject to change with other expenses) Promise to advise before doing anything to increase estimated cost o Contingent Fee Must get in writing. May spell out here. Treatment of Retainer o Where/how much retainer is, promise of monthly statements. o If over retainer, bill sent (if not paid, right to withdraw) Future Meetings o I may send you documents about the case. They are your copy, please keep them.) o I may send you pleadings, documents, correspondence, and other information throughout the case. When case is over, file closed and original document goes back to client. Other files destroyed after period of time (unless otherwise instructed). Return signed copy (informed consent!!) o I have read this letter and consent to it. Furthermore, I grant and give my informed consent after (your name) has proposed the course of conduct, has communicated adequate information, and has explained all material risks of and reasonable available alternatives to the proposed course of conduct.

NON-ENGAGEMENT LETTER: Standard To confirm that I will not represent you. Will not monitor changes in law or your circumstance. Statute of Limitations: o Important time limits are (could be) involved in processing your case. o Urge you to contact another lawyer immediately if you wish further advice/pursuit o Your failure may keep legal matter being forever barred by a time limit Refer to other lawyer or bar referral service (with phone number)

NON-ENGAGEMENT LETTER: After Review of documents, not law. ALL points above. Enclose all original documents given to you by prospective client In declining to undertake this matter, I am not expressing an opinion on whether you will prevail if a complaint is filed. I encourage you to seek a second opinion if you wish to do so. Please contact another attorney of your choice. I am not charging you for any legal fees or expenses on this matter and at this time.

NON-ENGAGEMENT LETTER: May Take Case For With Initial Payment I require that you pay $(dollar amount) before I will begin work on your case. If applicable: statute of limitations

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Explain Fee Agreement from Engagement letter At this time, I will do nothing further until I hear from you. I do not represent you on your legal matter at this time as you have not paid my retainer fee.

NON-ENGAGEMENT LETTER: Conducted Legal Research Pursuant to (my letter) (our meeting ) on (date), I conducted (legal research or investigation) to determine whether or not you have a claim that could be asserted against (insert appropriate name(s)). Result of Research o strong likelihood that there is no enforceable legal basis o AND My opinion is based upon my preliminary research; however, I have found (insert number of cases) cases that support my conclusion. Refer to other lawyers Statute of Limitations

DISENGAGEMENT LETTER: Unpaid Fees What has been paid already, what agreement was about fees. Amount of outstanding fees + will not finance case At this point, in my opinion, the Trial Court will permit me to withdraw. o Sufficient time to retain other counsel without jeopardizing your case o Other factors (complicated, prejudice, etc.) Agree to meet with new counsel (with compensation for time and expense) o Willing to share work product according to rules. Enclose Petition to withdraw (to file with court in two weeks)

DECLINING FURTHER REPRESENTATION: Absentee Client Have not heard from client in XX days, Assume client does not wish to retain further or proceed in matter. For this reason, I am closing file. Advise of Statute of Limitations Refer to other lawyers

CLOSING LETTER In order to complete this matter, I will (wrap up procedures). In addition, you will need to... o For Divorce: remind to change insurance/will/retirement beneficiaries Since this matter is now closed, I suggest that you keep all information Close file, return original docs (records, documents) Firm will store file for X years, then destroy unless we hear otherwise (within a week)