Coughlan Professional Responsibility Fall 2011

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Professional Responsibility Outline Fall 2011

*cases, model rules, SPLITs **Top reasons for disbarment: 1) commingling of funds; 2) failure to file documents ***Terminology: -knowingly, known or knows [MR 1.0 (f)]=denotes actual knowledge of the fact in a persons knowledge may be inferred from circumstances -informed consent [MR 1.0 (e)]=contribute to the trust which is the hallmark of client-lawyer relationship -confirmed in writing [MR 1.0 (b)] I. Introduction to Professional Responsibility A. Foundations of PR Lawyer as a Fiduciary o Duty of loyalty [MR Conflicts 1.7; 1.8; 1.9] o Duty of competence [MR Competence/Diligence 1.1; 1.3] o Duty of confidentiality [MR 1.6] Lawyer as an office of the court o Adversarial system [MR 3.3; 3.5; 3.6] o No frivolous claims Lawyer as a person w/ personal and financial interests o MR Fees, Advertising, Unauthorized practice 1.5; 1.8(a); 7.1-7.5; 5.5 o In re Pautler : (Colorado Chief deputy district atty impersonates a public defender to get murder to surrender) Penalty: 3 mos suspension (never happ) + 12 mos probation Legal Advice: Pros (deceit): good intention as a mitigating factor Cons (problems)violations next [MRs] 4.1 Truthfulness in Statements to other 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; or (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Applied to Pautler No due processconstitutional claimundermines the goal (get of jail card b/c of Neals lie) Miranda Rightstainted evidence b/c of the lie can be excluded from trial Jury perceptionhelp (enthusiast) v. hurt (rep as a liar, creditability is ruined) Comments: [1] Misrepresentation: lawyer is required to be truthful when dealing w/ others on a clients behalf, but GENERALLY has NO affirmative duty to inform opposing party of relevant facts. Misrep can happen f they
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incorporate/affirm a stmt that they KNOW is false OR if partially true with equivalent misleading or omissions [2] Statement of Facts: depends on the circumstances [3]Crime or Fraud by Client: (b) states a specific application of the principle in MR 1.2(d) and addresses when a clients crime or fraud takes the form of a lie or misrepresentation. Can avoid by WITHDRAWING and in extreme case disclose info to avoid assisting unless prohibited by MR 1.6 8.4 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; Pautler: If the police officer does the action, but you induce them o Police officer cannot violate the MR o Lawyer cannot induce another to break the rule (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; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. Comments [1] (a) does NOT prohibit a lawyer from advising a client concerning action the client is LEGALLY entitled to take [2] (b) Distinction b/w moral turpitudeoffenses involving violence, dishonesty, breach of trust, serious interference, repeated offenses [3] Knowingly manifests by words or conduct, bias or prejudice [4] good faith challenge [5] abuse of position can suggest inability to fulfill role 4.3 Dealing w/ Unrepresented Person In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to CORRECT the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, 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. Neal did not try to correct the misrepresentation Comments [1] To avoid misunderstanding, lawyer will typically identify their client & when necessary, explain that the client has interests opposed to those of the unrep person. Org & constituent [MR 1.13(f)] [2] Difference if the interest are not adverse and the lawyer can explain they rep the client and inform of the terms will agree or settle
o HYPO: 3 prior terrorist attacks and possibly another. As lawyer in the interrogation room, what do I advise? Weight the PROs and the CONs SLIPPERY SLOPE: Factual Q to decide whether action is needed nowticking bomb OR day-to-day Aggressive argument for violation: save lives, get the truth post 9/11, more leads Against: not a state of liberty, short run v. long run costs Steps: Go to Congress or refer to a committee, analyze the situation more, practical instinct Apply Pautler: Other alternative? Justification (legally permissible) v. Excuse (blameworthy, but wont punish) Exception to the rules when imminent danger under MR Penalties for Violating the Rules o *Firm or client sue for malpractice (e.g. legal malpractice) MR 1.1 (competence) and 1.3 (diligence) o *Disqualification motion (e.g. conflict of interest) o *Monetary Sanction (e.g. frivolous suit) o Statutory law may apply and affect the outcome Administrative rules & regulations e.g. Sarbanes-Oxley Act of 2002 Some states have statutes limited contingent fee agreements o Other law may apply e.g. criminal or civil law
B. Going Beyond the Rules Approaches to resolving Qs of PR when the rules are UNCLEAR o Moral Accountability (Problem 1-1): law firm deciding whether to take Demjanjuk (allege involvement in bombing of World Trade Ctr) as a client? TIGAR: individual moral accountability, value to defend (fair trial, due process, suppressed evidence), questionable facts FREEDMAN: freedom to choose not to take him as a client (moral decision) and may be a conflict b/c of personal or business interest [MR 1.7(a) (2)] or repugnant [MR 6.2 cmt 1] o Client-centered philosophy=act as zealous partisan on behalf of client and lawyers are not legally or morally accountable for their clients (neutral partisanship) Im obligated to do what is BEST for my client o Philosophy of morality=lawyers are morally accountable for their clients 1.2: Still suppose to do what the client asks b/c of client-atty relationship o Philosophy of social value=grounded in norms expressed in social institution (objective) o HYPO on the approaches: whether a law firm will accept to represent Guantanamo Have to ask: Can they do it zealously? Whole-heartedly? Are you good? Have the skills? Sense of commitment? Handle the press? Money/Rep issues? o Rules 1.1 Competence (client-lawyer relationship) 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: o [1] Relevant factors: complexity; specialized nature of the matter; lawyers general practice; training and exp; preparation & study; whether feasible to refer to assc or consults w/ lawyer o [2] newly admitted lawyer can be competent o [6] to maintain requisite knowledgekeep abreast of changes in the law, cont study and edu, and comply w/ edu requirement 1.2 Scope of Representation and Allocation b/w client and lawyer (b) A lawyer's representation of a client, including representation by appointment, 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 rep, or whose cause is controversial or the subject of popular disapprovalby rep it doesnt constitute approval of clients views or activities 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Comments: o [1] A lawyer must pursue a matter of behalf of a client despite personal views or schedule, also w/ commitment & dedication to the interest and with zeal of advocacy. Only professional discretion to the mean to pursue o [4] Unless the relationship is terminated by MR 1.16, must carry to the conclusion of the all matters (resolved) 1.16 DECLINING or Terminating Representation (a) A lawyer shall NOT represent a client OR, where representation has commenced, shall withdraw from the representation of a client IF: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. Comment: [1] A lawyer should not accept representation in a matter UNLESS if can be performed competently, promptly, w/o improper conflict of interest and completion (matter is resolved) C. Issues Facing the Profession: Methods of Regulating Atty Conduct Formal Regulation: Admission to Practice & Discipline of lawyers admitted to practice for misconduct with the courts ultimate authority o Admission to Practice Three requirements: law school accreditation by the ABA, pass the states bar examination, and good moral character Good moral character is an universal requirement, but AMBIGUOUS Sup Ct: whether a reasonable man would fairly find that there were substantial doubts about [the applicants] honesty, fairness, and respect for the rights of others & for the laws of the state and nation Criticism: minimally helpful, vagueness, subjective, 1st Amd implications, privacy issuesbetter to look at actual misconduct
Residency requirement: some states traditional include, but Sup Ct has invalidated in a serious of cases based on P & I Clause, art IV, 2 Two exceptions: motion by reciprocity in a 2nd state and pro hac vice (handle a particular matter usu. w/ local counsel) 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law (a) A lawyer shall NOT practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, OR assist another in doing so. (unauthorized) (b) A lawyer who is NOT ADMITTED to practice in this jurisdiction shall NOT (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. [See MR 7.1 Communication for services not false or misleading; 7.5(b) firm names & letterheadsindicate jurisdiction limit] (c) A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a TEMPORARY basis in this jurisdiction that: (no unreasonable risk to client or cts) (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (**participate & SHARE resp) (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction and is authorizes or will be (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, 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; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. (UNCERTAINTY in profession over this OPEN Q) (d) A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, MAY provide legal services in this jurisdiction that: (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (general counsel or govt atty) (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. o Disciplinary System Reporting Misconduct by another lawyer (Problem 1-2): discover discrepancy in settlement and allocation of monies (not paid upfront) Financial Misconduct o Lawyer is a fiduciary e.g. dog on behalf of the client (FIDO) o Disbarment: #1 commingling of funds Avoid this problem Set up a IOLTA (interest on lawyers trust acct) with banking industry or bar Cannot use the money (borrowing is theft) Duty to report misconduct by another lawyer o Wieder v. Skala (NY): litigation associate in firm discovered that fellow associate neglected the matter & made fraudulent
misrepresentations, informed partners, asked them to report, they refused, tried to reimburse him for his losses, he persisted and they filed but fired him. Won claim for breach of contract Bohatch v. Butler & Binion (distinguished; TX): firm not held liable for damages to a partner who the firm expelled for alleging good faith that another partner has violated ethical ruleswould undermine the trust essential to the partnership relationship o Before reporting: (*try to not blow whistle until you have facts) Dig deeper into the facts beforehand (might not be fishy) Think thru the consequences (rep) Cover-Your-Ass file (notes & dates & emails) Contact accounting dept (big firm) Consult mentor/senior lawyer o Steps for reporting: Go to the bar (lodge a complaint) Tactful meeting w/ boss, not conclusionary (want to keep job) Ethics Committee/Ethics Office in DOJ Office of Professional Responsibility 1-800 number to complain o 5.2 Responsibilities of a Subordinate Lawyer (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding (despite) that the lawyer acted at the direction of another person o Comment: [1] Lawyer is not relieved of responsibility, but is relevant in det if he had the knowledge req to render conduct (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 o Comment: [2] supervisor may assume responsibility GREY AREA: if supervisor says it is okay, then associate is okay b/c his actions are reasonable Partner has more experience, more legal judgment , and therefore responsible for legal malpractice o 8.3 Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, SHALL INFORM the appropriate professional authority. Mandatory reporting if there is no informed consent knowledge [MR 1.0 (f)] Example: 5 USC 2302violation to take a political party into consideration when hiring, promoting, etc. Woman did it working for fed govtduty to report to barknowledge and issue of fitness
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 (confidentiality) or information gained by a lawyer or judge while participating in an approved lawyers assistance program. o Comments: [1] Self-regulation of the legal profession req the members to initiate disciplinary investigations [2] Substantial referred to seriousness of the possible offense, not amount of evidence [5] Exception for participation in lawyers or judges assistance program e.g. volunteer legal service on a satwant them to volunteer o EXCEPTIONS: knows AND confidentiality unless informed consent (c) In re Himmel: duty to report unprivileged knowledge of misconduct Obligation to report to Boss/Superior and how o Qs: do we have a duty to report? Enough evidence? Duty to investigate prior? Conscious avoidance? o 1.6(b) (4) Confidentiality of Information A lawyer may REVEAL information relating to the representation of a client to the extent the lawyer reasonably believes necessary: to secure LEGAL ADIVE about the lawyers compliance w/ these Rules Comment: [9] in most situations, disclosing info to secure such advice will be impliedly authorize for the lawyer to carry out the rep II. Defense and Prosecution of Criminal Crimes A. Confidentiality Lawyers want clients to be honest, but what do you do w/ certain confidences o Information about Unsolved or Contemplated Crimes (Problem 2-3): Public defender told by client, Albert, who is accused of burglaries reveals during an interview about killing a missing girl and where the body is located, he wants to get bail to hide the evidence. What do I do? Options: Tell him criminal charges could be brought and cannot destroy evidence Suppose to give him competent legal advice for burglaries, but not murder Withdraw once the burglaries charges are completedgive notice to the fact 1.6 (b) only applies for revealing info if you are preventing a crime or fraudcould argue that you are preventing the injury to the family or the injury that is being done to the girls body o Model Rules: 1.2 Scope of Representation and Allocation of Authority b/w client & lawyer
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, as to the means by which they are to be pursued, whether to settle a matter, as to a plea to be entered, whether to waive jury trial and whether the client will testify. Comments: [1-4] Client decides to settle, duty to communicate, fundamental disagreement then may w/d or terminate, may reply on advance authorization (b) A lawyer's representation of a client, including representation by appointment, 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 rep, or whose cause is controversial or the subject of popular disapprovalentitled t o fair trial (c) A lawyer may LIMIT the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. Comments: Scope may be limited by agreement, terms of services, too costly or disgusting. Limitation must be reasonable and the lawyer has a duty to provide competent rep. The limitation is a factor to det the legal knowledge, skill, thoroughness, & prep necessary (d) A lawyer shall NOT counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, 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, scope, meaning or application of the law. Applied to the problem: the defender doesnt have to cover up the murder in his representation Comments: Cannot assist or counsel, but doesnt mean they should not give honest opinion about the actual consequences likely to result. If is has started, then avoid assisting, w/d, and sometimes give notice of w/d and disaffirm/affirm any opinion/doc (4.1 truthfulness) 1.6 Confidentiality of Information (a) A lawyer shall NOT REVEAL information relating to the representation of a client UNLESS the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation OR permitted by paragraph (b). Comments: informed consent contributes to the trust of CLR, applies to info communicated in confidence and relating to representation Note: Broad rule to not reveal info unless informed consent (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; (2) to prevent the client from committing a crime or fraud (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; (4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, civil claim which client was involved, or respond to allegation concerning representation of client; OR (6) to comply with other law or a court order. o Comments: Overriding value of life and physical integrity 1.16 Declining or Terminating Representation (a) A lawyer shall NOT represent a client OR withdraw from the representation of a client IF: (1) the representation will result in violation of the Rules or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or [MR 1.14 Client w/ Diminished Capacity] (3) the lawyer is discharged. (b) A lawyer MAY WITHDRAW from representing a client IF: (permissive, if 1 of these reasons exists) (1) can be accomplished without material adverse effect on the interests of the client; (2) lawyer reasonably believes clients course of action is criminal or fraudulent which their services are involved; (3) used services to perpetrate a crime or fraud; (misused in the past) (4) the client insists on taking a repugnant (disgusting) action or with which the lawyer has a fundamental disagreement; (5) client fails to substantially fulfill an obligation and has been given reasonable warning that lawyer will w/d if not fulfilled; (6) unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. Tribunal can order a lawyer to continue even w/ good cause for terminating (d) After termination, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, time to find new counsel, giving papers and property, refunding advance payment. Lawyer may retain paper relating to the client to the extent permitted by other law. Comments: A client has the right to terminate a lawyer at ANY TIME with or w/o cause, subject to liability for paying for services. If unfairly discharged, the lawyer must still mitigate the consequences to the client & may retain papers as security for a fee (lien) if permitted by state statue (MR 1.5 Safekeeping Property) RS 46: Client is entitled to receive all documents in the file, except internal firm memoranda. REJECTS retaining lien, but will allow the lawyer to retain specific doc provided it doesnt substantially harm Three Sources of Confidentiality: o Ethical Duty of Confidentiality (C-L-R) 1.6: requires lawyers to maintain confidential info relating to the representation under all circumstances other than when evidence is sought w/ certain circumstances to disclose EXECPTIONS Informed consent [1.6(a)]
informed consent [1.0(e)]=agreement by a person to a proposed course of conduct after the lawyer has communication adequate info & explanation about material risks & reasonable available alternatives McClure v. Thompson: atty learned where clients were missing by a map drawn by client, anonymously called police, bodies found, but atty argues that he thought they were alive. Court: Could infer consent of disclosure, BUT the consent was not sufficient b/c he didnt advise. However, 2-1 decision that it was okay to disclose to PREVENT imminent death Prevention of harm DEBATE about prevent and rectify Past wrongful conduct Only allowed to disclose if it PREVENTS death or substantial bodily harm o Attorney-Client Privilege Rule of evidence that deals with a lawyer having to reveal info received in confidence from a client or be called as a witness. Crime-fraud exception [1.6(b) (2)] REQUIREMENTS: A communication Made b/w privilege persons (incl. agents of atty or client) In confidence, AND For the purposes of obtaining or providing legal advice HYPOS: birthmark [yes, not a communication]; [witness report to non-privilege person [put it out there for ppl to see, not privileged] o Work Product Doctrine (FRCP) Discovery rule recognized by SC in Hickman v. Taylor: prevents discovery in anticipation of litigation UNLESS substantial need for the material AND cannot obtain w/o undue hardship Preserve the proper functioning of the adversarial system to allow attys to prepare cases w/o fear the material prepared in anticipation of litigation will be made available to opposing side (limited discovery already in crim) o Ethical duty of confidentiality (disclose) v. Atty-client Privilege (testify) Purcell v. Dist. Atty for Suffolk Dist (Mass): Tyree went to Purcell, provides legal service to low income individuals, about be ordered to vacate after being fired as maintenance man. During which, he said he was going to burn apt building, Purcell informed police, and found evidence of which. Arrested for attempted arson, tried to subpoena Purcell for trial, but Q whether to grant motion to quash. Commonwealth found stmts not protected under atty-client privilege, denied motion, order to testify. Purcell challenges Holding: Lawyer ethically may disclose confidential info to prevent a client from committing a crime that will harm another person, but the
lawyer CANNOT be compelled to testify about the communication because it would violate the atty-client privilege Crime-fraud Exception Tyrees stmts were protected under privilege, UNLESS crime-fraud exception applies [MR 1.6(b) (1)] General principle of the exception: Q of fact for Judge discretion to do in camera review AND discussion of future crime activity prep Crime-fraud exception CANNOT BE UPHELD for there is not sufficient evidence that he consulted Purcell for purposes of furthering a crimeo Disclose voluntarily, no ethical duty o Did so to protect lives SLIPPERY SLOPE o If info always can be used adversely against clients, lawyers wont reveal o Lead to warnings in advance that info may not be held confidential o SOLUTION: Crime-Fraud Exception ONLY applies if the communication seeks assistance in OR furtherance of future crime Judge looks at the facts: public interest is served by disclosure *Q on remand to figure out whether Tyree informed Purcell for legal advice or assistance Attorney-Client Privilege SPLIT among courts o Purcell: rejected that atty-client privilege did not apply b/c client was NOT seeking legal advice when threat was made o Some courts (US v. Alexander): Atty could testify regarding threats b/c testimony was not subject to atty-client privilege, the client was NOT seeking advice Rationale: If still seeking some type of advice, there is granted secrecy. A loophole, will allow layers to use inappropriately & harm the public image. Lawyers testifying will decrease biz and adversely effect trial Duty of Confidentiality o Tort or criminal liability: Failure to disclose to prevent/rectify wrongful conduct 1.6 (b)(6): must comply with other law Does tort or statutory law req disclosure?
Tarasoff v. Regents of the Univ of Cali: tort case where patient confided to psychotherapist intention to kill a woman who rejected him, called police, but let him go and then killed her. [negligence suit] Holding: Duty of care to 3Ps foreseeably (identifiable) injured by patient Rationale: public policy to protect others, recovery rare Hawkins v. King County: psychiatrist tell atty the client is mentally ill and dangerous, atty doesnt mention to the court, client is released on bond, then assaults his mom and attempts suicide [duty to disclose + failure to warn suit] Holding: No duty to disclose adverse info to the court and the mother and sister were aware of his release and they he might be dangerous (distinguished from Tarasoff) Movie Clip: at a clients death bed he confesses to killing 2 young girls, went to one location, tell no onepolice nor families, kept oath and didnt report it Ethical Issues: common decency? Officer of the court? Public outrage? Suffered reputations? Outcome: client admitted to 7 murders & several rapes, took forever to get a jury, shunned both atty in the community People v. Belge: 2 lawyers rep a client accused of murder, informs them of 3 unsolved murders & locations, one goes to the scene, dont tell anyone but comes out in insanity defense Outcome: atty that went to scene was indicted for 2 charges under NY Public Health Law for the dead to be given decent burial (general statue) Appellate: NOT absolute or all encompassing, but found attyclient privilege protected from the health law KEY: Report to police to PREVENT [1.6(b) (3)] Does this just apply to alive bodieswhat about corpses being left to discompose????
o Scope of Duty of Confidentiality Advocates for a Strict view: Two arguments: Rights of Clients (legal or moral) 5th Amendment: Privilege against self-incrimination Fisher v. US: SC held that privilege against selfincrimination protected info that a client had given the lawyer, IF: Attorney-client privilege applied Info could NOT have been obtained directly from the client b/c of S-I privilege This privilege only applies if the info is incriminating and does not apply if the materials are from a 3P th 6 Amendment: Right to counsel Should not prevent disclosure of info to prevent harm
Doesnt come into play in crim cases until initiation of adversary judicial proceedings Only right to effective representation, not a particular person Social Utility of Client Confidentiality Rationale: If clients are encouraged to reveal confidential info e.g. wrongdoings, then lawyer may be able dissuade & prevent harm Counter: Many clients disclose after the fact they committed the crime (human nature) Assumptions are unproven and doubtfully valid assume clients will be deterred from seeking legal advice if lawyers have to disclosure wrongful intention Counter: clients have no choice in many cases to seek rep, law binding citizens have a incentive to seek legal advice regards of disclosure rule to conform their conduct, & many clients are going to commit regardless What should be the scope of strict conf? How far should prevention of harm go? Reasons to keep strict: clients openness w/ atty; services to the client (best possible defense); constitutional rights Criminal Material/Evidence o Dealing with Physical Evidence, Fruits, and Instrumentalities of Crimes (Problem 2-4): client accuses of armed robbery, weak identification by store clerk, but admitted committing and you know you can get a plea bargain. The girlfriend comes to the office w/ the bag, what do I do with it as a lawyer? Answers: Under 1.6, probably not req to report where the money is because I dont have possession. If asked to hold it, then obligated to turn it over (fruit). If asked should I move it, cannot strategize/assist client [1.2(d)] Model Rules: 1.2 (d) Scope of Representation (e.g. confession & need to move bag$) (d) A lawyer shall NOT counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, BUT a lawyer MAY discuss the legal consequences of any proposed course of conduct and counsel/assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Comment: distinction b/w presenting an analysis of legal aspects of questionable conduct & recommending means by which a crime can be committed 2.1 Advisor (e.g as lawyer, what do I say) In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation. Comment: In general, a lawyer is not expected to give advice until asked, however if the clients course of action will likely
result in substantial adverse legal consequences related to the representation then the lawyer can offer advice 3.4 Fairness to Opposing Party & Counsel (e.g. confession & bag $) A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party UNLESS: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. Comment: In most jurisdictions, improper to pay an occurrence witness any fee for testifying and improper to pay expert a contingent fee 4.3 Dealing w/ Unrepresented Person (e.g. girlfriend) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, 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. 8.4 Misconduct o Tangible Criminal Material in Lawyers Possession Under the MR: lawyers have discretion to reveal confidential info to prevent reasonably certain death or serious bodily harm, BUT lawyer have an ethical obligation to maintain conf info regarding past crime Mandatory reportingcannot assist their clients in concealing tangible criminal material In re Ryder: Ryder represented a client accused of bank robbery w/ a sawed-off shotgun, paid to put pkg in safe deposit box, box signed over to Ryder, who transferred the contents (gun & money) to a box in his nametrying to make the evidence inadmissible under A-C-P
Holding: Court held that Ryder had gone far beyond the receipt of confidential info to become an active participant in concealment of a crime (accessory after the fact) Penalty: removed from the case, 18 mos suspension Better steps: 1) report b/c he had the guncannot hide fruits and instrumentalities of a crime; 2) Can discuss legal consequences, but not counsel/assist (e.g. if you give me $, then I have to turn it over) 1.2 (d) may discuss legal consequences, willful blindness is a version of knowledge 2.1 can give honest assessment Other case law: Must turn over real evidence Sowers v. Olwell: (possession of knife and refused to comply w/ subpoena) obligation to turn over materials to the authorities Morrell v. State: (telephone call from roommate of client about legal pad w/ kidnapping plan) Sought the advice of the Ethics Advisory Committee of the bar associationreturn the pad, advise about the law, and withdraw. Ct find the same obligation if evidence comes from client OR 3P State v. Carlin: (made tape recordings which were turned over to atty, objected to turn them over) Duty to turn over evidence under the lines of cases Commonwealth v. Stenhach: (kept possession of rifle stock used in homicide committed by client, learned of location & existence) overwhelming majority of states hold physical evidence must be delivered to prosecution, but found the statues vague and overbroad on appeal Restatement 119: Physical evidence of Client Crime A lawyer may when reasonably necessary take possession & retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy it, BUT lawyer must notify authorities of his possession or turn over it th 5 Amendment self-Incriminating privilege In re Fisher: have a bunch of docs, subpoena, hard to resist the subpoena In re Hubbell: some things are tangible v. mental energy to figure out how to respond i.e. all relevant fraud billing records. This forces the D and lawyers to dig around and figure out what is incriminating (doing their work). Self-incriminating privilege applied How should lawyers comply w/ obligation to turn over materials? Voluntarily take to authorities Request use of immunity; motion in limine to prevent use of material based on privilege against self-incrimination Return the material to its original location RS: impossible and unavailable option when the lawyers reasonable should know that the client or another can intentionally alter or destroy the evidence ABA stds agree w/ this limitation
Return to the authorities anonymously Inform authorities that the lawyer has possession
III. Ethical Issues in Civil Litigation: The client-lawyer relationship, Confidentiality, Conflict of Interest A. Client-Lawyer Relationship Ethical obligation to charge reasonable fees o Contingent Fees, Expenses, and Fee Splitting (Problem 3-1): Carnes injured on job and negligence suit against doctor, Lawyer #1 referred her to #2. Settled for 100K and signed contingent fee, but only got 40K Breakdown: Settlement 100K- 45% fee 45K- Expert 10K- Other expense 5K Problems: other expenses vague category, many firms make this detailed Note: Get paid for expenses UPFRONT, set up a retainer, esp. crim defense o 1.5 Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: Cts: Regulate in 3 ways: 1) discipline for charging excessive fees; 2) reduce amount of fees if unreasonable; 3)determine reasonable fee NOTE: Common Fee Amounts: 25% Settlement, 33% Jury; 40% Appeal Comment: some cases come w/ high risk/change, lots of time and resources, so the high contingent fees are justified FACTORS not exclusive (1)- (8) the time and labor required, the novelty and difficulty, skill req; precluded from taking other cases; custom fee charged; amount involved and results obtained; time limitations; nature and length of prof relationship; experience, rep, & ability; whether the fee is fixed OR contingent (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method, %s, expenses, when to be deducted, plus notify of any expenses which they will be liable. At end, provide client w/ written stmt stating outcome, recovery and should how it was determined. Contingent fee=lawyers right to receive compensation is contingent on the clients receiving an award, either by settlement or judgment (%) (d) A lawyer shall NOT enter into an arrangement for, charge, or collect: (NO contingent) (1) contingent upon the domestic matters, securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (referrals are okay) (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (same % wk & difficulty)
(2) the client agrees (informed consent) to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. NOTE: fee splitting was traditionally improper under 5.4 (a) unauthorized practice of law. Referral rate is typically 1/3 contingent fee. 2 concerns: excessive fees & unethical practice of solicitation of biz. Cross-sector referring more natural today SPLIT in enforcing fee splitting in the contractual effect if the lawyers fail to get an agreement regarding joint responsibilitypublic policy or estoppel to prevent unjust enrichment o Contingent Fees & the Expert Paying Expert fee CL in Most jurisdictions: Fee has to be included in the agreement, but CANNOT be contingent on the settlement/judgment awarded 3.4 (b) A lawyer shall NOT offer an inducement to a witness that is prohibited by law C3: improper for an occurrence witness to receive any fee, except expenses and improper for expert to get contingent fee Other Expenses 1.5 (c) whether such expenses are deducted before OR after the contingent fee is calculated EX: 100K-expenses 15Klawyers fee(15%) 36,350 (not 40K) Consumer favored more 1.8 Conflict of Interest: Current Clients: Special Rules (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer MAY advance court costs and expenses of litigation, which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. Resolving issue w/ the Lawyer If several violations, try to work it out by pointing them out 1. Probably will try to settle w/ a non-disclosure clause (most rational action) 2. Next, try a bar program such as arbitration 8.3 Reporting Professional Misconduct: indication of dishonesty However, dont really know if this is a mistake or not being forthright 3. Last, try other options before going to litigationmore exp Withdraw of client or discharge of attorney 1.2 (a) lawyer shall abide by the clients decisions HYPO: clients gives advance authorization for lawyer to settle for up to 100K, lawyer settles for 125K
o Theres an apparent authorityreasonable reliance, then the client pays the 125K o Sue defense attorney for breaking the agreement (breach of K + malpractice tort claim) Legal Malpractice: engagement & non-engagement agreements o Four Elements for Legal Malpractice: (*hard to win) Attorney-client relationship existed D (lawyer) acted negligently or breach of K Acts were proximate CAUSE of Ps damages That but for Ds conduct the P would have been successful in the prosecution of their claim (e.g. how much would they have won) Examples of clear malpractice cases: missed statue of limitations, said there was no case where the client had one if investigation was done properly, and big law firms typically w/ conflicts of interest 1.4 Communication (a) A lawyer SHALL: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. o Togstad v. Vesely,Otto, Miller & Keefe: Medical malpractice claim, went to atty suggested by his job, attorney said he did not have a legal case and would discuss w/ partner, no fee arrangement was discussed nor medical authorization were requested, never contacted her back, denies that she was urged to see another lawyer. He didnt contact the malpractice firm and they said they would never render a categorical opinion. He also didnt inform her of the 2-year SOL Holding: There has to be a atty-client relationship for legal malpractice, however lawyers have a duties to prospective clients who consult them for advice even if the lawyer does not accept the case B. Confidentiality Use of email, faxes, and cellular telephones (IT) o NY & Minn Ethics Op: lawyers may ethically use analog cordless or cellular telephones only w/ client consent after consultation [255 Fn 127] COUNTER: analog phones are archaic and are not as hard to intercept. Digital use is harder to break and very common w/ lawyers (e.g. email, blackberry, etc) o Way to protect confidentiality: Fax: cover pg says privilege and destroy/return if wrong person Email: says confidential privilege and return/destroy; expectancy of privacy (prima facie), usu. automatic privilege mark Personal v. Work email
Work email on a blackberry will be filed in the work pile EX: Larry Lasik, asked for his work emails being expert for tech issues for Microsoft, found he sent emails to Netscape & Internet Explorer (just made a pact w/ the devil) and asked he be removed b/c he compared their to Satan, hes not neutral EX: Claire Swire, young lawyer in London, went out and had sexual exp w/ another lawyer, Mon he wrote some colleagues, but it got sent to millions EX: Karl Rove addicted to Blackberry and all White House emails are archived. He used Republican Natl Political Committee account instead of the White House to raise money limits on poli activity in fed capacity Scope and exceptions to the attorney-client privilege o RS 68: The attorney-client privilege may be invoked if all these requirement are met: A communication Made b/w privilege persons In confidence For purpose of obtaining or providing legal assistance for the client o Examples Problem 3-3: IM a company has been allegedly accused on producing vehicles w/ defective fuel tanks, IM has resisted giving doc that are covered by A-C-P and work product doctrine. All their designs are reviewed by DRC committee w/ an atty as chairman and all the docs to DRC have confidential smt. Depends if the persons involved were privileged, # doesnt matter Not a legal issue, NOT privileged Privileged log parts of memos may be protected by A-C-P o Two exceptions to A-C-P Waiver RS: by agreement, disclaimer, or failure to object; voluntary disclosure in a non-privileged communication; or by raising the lawyers communication or assistance as an issue in proceeding (defense) Crime-fraud exception RS 82: A-C-P does not apply to a communication when a client consults to engage in crime or fraud or aiding a 3P to do so, OR uses advice to engage in such EX: Ford rather kill people that fix the car blowing up b/c it would be a higher cost (cost or safety) Asked the lawyer what to do and how must the cost of law suits would be Then, look at RS to see if exception applies Scope and exceptions to work product doctrine [FRCP 12 (b) (3)] o Requirements: 1) be prepared in anticipation of litigation; 2) party may obtain discovery of work product material by showing substantial need coupled w/ undue hardship Two exceptions: Waiver and most courts recognize crime-fraud exception Hickman v. Taylor: wanted to obtain by discovery copies of all written stmts from members of ship crew taken by Ds.
Holding: Work products material is not absolutely immune from discoveryrelevant and non-privileged facts remain hidden in attys file and where production of those facts is essential to ones case, then discovery made be properly had Upjohn v. US: scope of corporate A-C-P in dealing w/ subpoena for written questionnaires sent by general counsel to various mid-managers as part of internal investigation into questionable foreign payments by one subsidiary Holding: Broad protection for communication by all corporate employees to corporate counsel in fed ct. Control group test overlooks the fact that the privilege exists to protect giving advice to those who can act and giving info to the lawyer to give sound & informed advice SPLIT: Some courts follow control group test Others follow subject matter testneed to know C. Conflict of Interest Three Categories: Currentnon-waivable, otherwise consent curest; formersubstantial relationship test, confidential info used, consent cures o 1.7 Current Clients (a) A lawyer shall NOT represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists IF: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer MAY represent a client if: (1) the lawyer reasonably believes will provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) does not involve the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Comment: client may revoke consent and may terminate lawyers rep o 1.8 Current Clients: Specific Rules (a) A lawyer SHALL NOT ENTER into a business transaction with a client OR knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client UNLESS: [lawyer cannot be lawyer and client] (1) the transaction and terms are fair and reasonable to the client and are fully disclosed and in understandable writing to client; (2) advised in writing of desirability of seeking & giving opp to seek independent legal counsel & (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction (b) A lawyer SHALL NOT USE information relating to representation of a client to the disadvantage of the client UNLES the client gives informed consent, except as permitted or required by these Rules. [dont take info to hurt the client] (c) A lawyer SHALL NOT SOLICIT any substantial gift from a client, including a testamentary gift or any substantial gift UNLESS related or other close familial relationship
(d) Prior to the conclusion of representation of a client, a lawyer SHALL NOT make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. [e.g. no book rights] (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) advance court costs and expenses of litigation, repayment contingent, & (2) indigent client may pay court costs and expenses of litigation (f) A lawyer SHALL NOT ACCEPT compensation for representing a client from one other than the client UNLESS: (1) the client gives informed consent; (2) no interference with the lawyer's independence of professional judgement or with the client-lawyer relationship; and (3) information is protected as required by Rule 1.6. (g) A lawyer who represents +2 clients SHALL NOT PARTICIPATE in making an aggregate settlement of the claims of OR against the clients, UNLESS each client gives informed consent, in a writing signed by the client. The lawyer's disclosure includes existent & nature of the claims/leases and participation of each (h) A lawyer SHALL NOT: (1) make an agreement limiting the lawyer's liability to a client for malpractice UNLESS the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client UNLTESS that person is advised in writing of the desirability of seeking & given opp to seek the advice of other counsel (i) A lawyer SHALL NOT ACQUIRE a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case. *(j) A lawyer shall not have sexual relations with a client UNLESS s a consensual sexual relationship existed before (no blurred line of personal & professional) (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them o 1.9 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, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client, (1) whose interests are materially adverse to that person; and (2) acquired information protected by Rule 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) 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 rep to the disadvantage of the former client except if the Rules would permit or require, or info is generally known, OR (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Comments: substantially related=same transaction/legal dispute OR substantial risk that confidential factual info would materially advance te clients position in the subsequent matter. In disqualification motion, firm has the burden to prove the lawyer has privy to info about clients serviced but those of other cliets
Representation against current clients o Problem 3-4: member of PR committee of the firm A. small amount of work for comp. in past 2 yrs, not suit against comp that would bring in $1 million for firmformer client (1.8), OK if NOT substantially related matters. If current client, then decide if directly adverse B. Concurrent clients: NYM Assc partnership of doc and Hospital 1.7 (b) Lawyer may represent a client if: o (1)competently & diligent rep for both, esp. big firms o (2) not prohibited by lawlets assume it is not o (3) not same litigationNOT MET This element is not metcannot sue a current client in court, NON-WAIVABLE conflict o (4) informed consent from both partiespossible HYPO: Current client (general retainer), but what if work every 3 years o Classification matters, these facts can det that the client is not current o Hot potato doctrine= drop client and det how quickly more to the new client (check local statues) Strategize against this limitation o Big firms: Prospective Waiver in the agreement; Engagement letter (limit scope & time)follow rules, but business positioning too Problem: o Current client=Hospital; former=NYM Ass Adverse to the hospital? No Is the doctor a client? Maybe if client confidence. NO under 1.13 1.13 Organization as Client: (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. Client=NYM Can represent NYM and hospital, but NYM will say its the docs fault Business/Ethic Analysis o Client relationship issues o Firm should: Set up ethical wall to protect confidences Reassure the hospital that they can trust the firm Inform the clients of whats going on
E. Positional Conflicts: one client wants broad reading and another client wants a narrow reading of an Act 1.7 This conflict is waivable, not directly adverseonly need informed consent o C#24: Ordinarily, a lawyer may take inconsistent legal positions in diff tribunals at diff times on behalf of diff clients Only if significant risk that it will materially limit the lawyers effective in rep another client or the same court/same time will the lawyer be prohibited [1.7(b) (3)] o Ethical (can do it) & Business (should do it) Analyzes F. Prospective (general) Waiver: firm incl. general waiver in its retainer agreement DEBATE: problem w/ the future is that is in the future, dont know what will happen o Harmful: BK says blanket waiver should not be enforced; big warning that the cts dont accept them 1.7 C#22: General open-endedconsent ineffective; experience user and understands the risks, more likely effective o Okay: Some big sophisticated corp know what they are getting o Representation against sister or parent corporation Discontrade Ltd v. Wyeth-Ayerst Intl (2002): complaint, then on the same day a temp restraining order & preliminary injunction was filed the next day. WAII moved to dismiss Ps counsel b/c of conflict of interestrep Wyeth Research, company related to WAII. Court had to decide if conflict of interest Holding: Adopted a functional approach where the court examined the facts and circumstances and determines the entities were closely related as to the amount to one client o Substantial integrationof day to day Functions: computer network, email system, travel dept, health benefit plan, financial reports, same CFO, in house law dept, legal correspondence o WAII is a current client: Corporate relations w/ WAII and Pharmaceutical are so close to deem one entity. Not former clients, so it doesnt have to meet the heavy burden of substantial relationship test Applying the conflict of interest rules to members of corporate groups SPLIT o Some apply per se rule: client-lawyer relation w/ all subsidiaries, affiliates, or other members of group (duty to the undivided loyalty) McCourt Co v. FCP Properties, Inc.: (Mass SC) stated a law firm may not at the same time be counsel w/o consent of both parties. Doesnt matter parent & subsidiary Stratagem Development Corp v. Heron Intl NV: law firm was per se ineligible to rep the P where the firm also wholly owned subsidiary of the D
o Others: alter ego test (opposite extreme), similar to the piercing the corp veil Brooklyn Navy Yard: (Cali) law firm was not disqualified from rep client against a parent corp when the firm rep the parents subsidiary in unrelated matters b/c the parent was NOT the alter ego of the subsidiary o Others such as Discontrade: functional approach ABA: prefers the fact-and-circumstances test over per se Representation against Former Clients o Problem 3-5: Former clients: Carson is the law firm Corp client (client)problems w/ NS, Benson gave misleading info Enderson CEO (client) Natl Securities (former, sued) Benson (fraudulent broker) Disqualification motion by Natl for representation of Enderson Substantial relationship (a) o YES: arbitration against brokers, DQ If Benson both times, inconsistent positions for the same person Defense, then suing Maybe confidences (b) using same factssubstantially related o Allow if CONSENT/ Prospective waiver o NO: arbitration against diff brokers, no DQ Facts: diff brokers, # of years, new mgmt Substantially related 1.9 C#3= same transaction of legal dispute of if there otherwise substantial risk that would materially advance the clients position New consent? Always okay o Problem 3-6 Imputation of Disqualification Avoid Disqualification when lateral moving b/w jobs Reyer is moving from Chen to Howe a new firm and the firms share same clients o If confidential information, prove she didnt have access or screen her from certain cases Think info is imputed to the whole firm Protect w/ waiver o MR: does NOT accept screens for law firm lawyers, but may cts allow it for paralegals or staff
D. Delivery of Legal Services in Civil Cases: Limitations to Zealous Representation Advertising and Solicitation o Types: General Ads: broadest permission, free speech Direct Mail, or other targeted ads: middle ground
In-person Solicitation: direct real time contact, lawyers have a lot of influence so strict rules and cannot record it o Basic Principles (70s against the law to ads, unprofessional) Step 1: Professional Speech Benefits: helps the mkt, find affordable counsel, poor or unpopular people Step 2: Commercial Speech Central Hudson Test: Intermediate Scrutiny o Has to be substantial government interest +directly and materially advance the interest + narrowly drawn alternative Gives some leeway for the bar to regulate Strict Scrutiny Test o Compelling govt interest + least restrictive alternative + tight link to achieving the interest Case law o Florida Bar v. Went for It, Inc (5-4): OConnorsubstantial state interest, direct & material, narrow Dissent: Central Hudson Test is proper measure, but applied wrong Steps for solving issue: know what to apply, apply, should the bar regulate, need speech so the bar should not regulate as much o Law Firm Marketing Practices (Problem 4-7): A. Television advertisement: no charge and guaranteeing success 7.1 Communications concerning a lawyers services o lawyers shall NOT make a false OR misleading communication about the lawyer or lawyers services o Deceptive advertisingmight be inherently misleading [FTC & MR problem] Ethical Claims?: o Wont pay hourly wage, but there are other costs No fees no costs/expenses Might be misleading! REDRAFT: no attorney fees; no hourly fees; no fees will be charged, but out of pocket expenses will be, or explain during consultation (no bait & switch) Defenses: reasonable person std, unsure about the ad then send it to the bar o 95% of our clients are satisfied or very satisfied Depends on how the survey was done Might be misleading! Substantiation Q: was the survey fair and reasonable? If you have a survey, you can advertise the results! o Offer discount fees
Possibly misleading w/ unsophisticated clients Cost-cutting: Benefit or Problem? o Lead to competition o Decreased cost o Quantity over quality o Court favors price comparison (e.g. antitrust laws) RESULTS on the profession o Cheapen the profession, not high quality o Price will go too low How much? o Anti-trust people: commercial speech o Bar: restrict the mkt, uphold the profession mkt o Can help you get money within 60 days 1.8 (e): lawyer shall NOT provide financial assistance to a client, except for court costs & expenses This sounds like its promising a settlement (wording misleading/confusingcan v. will) o Unmatched experience Substantiation Q: WHO is the firm comparing itself to Reasonable person might think exp is a general claim unmatched sounds like theres evidence 7.4 Communication of Fields of Practice & Specialization Cannot say you are a specialist UNLESS you have been certified by an organization approved by ABA & the name is clearly identified in the communication o 1-800 to Call 7.3 Direct Contact w/ Prospective Clients Lawyer shall not by in-person, live telephone, real-time electronic contact solicit prof employment from prospective client when significant motive is pecuniary gain, UNESS the person contacted: is a lawyer, prior prof relationship Shall not solicit IF: made it know not to contact, involves coercion/duress/harassment Every communication must be labeled Advertising Material Can participate in prepaid or group legal service plan to solicit Many states require the firm to keep records and some you have to send to the bar 7.5 Firm Names & Letterheads
Lawyer can state name, jurisdiction, trade name
B. Other Forms Newsletter and brochures are okay o Good way to help current clients and obtain more business Sponsorship of seminars o Very common way to educate clients o Giving info and building a relationship Aggressive entertainment polices o TRICKYbig gifts are NOT allowed and many companies have policies o 7.2 Advertising (b) The lines are not clear, but the lawyer should NOT be able to give things of value to encourage a prospective client to hire them a lawyer shall not give anything of value Web pages o They are multi-jurisdictionalcannot limit o 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law Shall not practice in violation of local rule, a lawyer not admitted in a jurisdiction shall not est a office, can team up w/ local counsel (pro hac vice), uncertainty when multijuridisctional starts & need local counselfor so many travel for meetings etc, general counsel can practice wherever the corp is and authorized by fed or other law
IV. Lawyers in Public Service: Judges, Government Attorneys, and Public Interest Lawyers A. Judicial Ethics Judges in their Official Capacities (Problem 6-1) o A. Justice and her husband have substantial investments: 1000 shares@$30=$30K Cannon 3 (1): Judge Shall Perform the Duties of Judicial Office Impartially & DiligentlyDisqualification A judge shall disqualify him/herself in a proceeding in a which the judges impartiality might reasonably be questioned, inc. but not limited to instances where: Judge has personal bias, prejudice, personal knowledge, served as lawyer in the matter, economic interest, third degree of relationship, aggregate contributions to campaign, controversial/issue to proceeding earlier public stmts NOTE: Limited partnership thru mutual funds: OKAY, no conflict of interest w/ mutual funds, blind trust HYPO: bank makes loan on the real estate of the judge. Can she judge the case on her bank? Cannon 4: Judge Shall So Conduct the Judges Extra-judicial activities ass to Minimize the risk of conflict w/ judicial obligationsFinancial Matters
o (2):A judge may, subject to the req of this Code, hold and manage investments of the judge and members of his/her family, inc. real estate and engage in enumerated activity o (D) (f) (f): A judge shall not accept, and shall urge members of the judges family residing in the household, NOT to accept a gift/favor/loan from anyone EXCEPT: A loan from a lending institution in its regular course of business on the same terms generally available to persons not judges o B. Securities case: judge appointed 18mos ago, group of related securities class action suits has been assigned to the judge to coordinate pre-trial discovery, however your spouse is a lawyer for one of the Ds Spousal Issues Litigant: cannot judge the case Lawyer: o Canon (3) (E) (2): partner=profits from the shares and will get increase in profit from the case, then should not be able to back track the financial interest Keep informed about judges personal and fiduciary economic interests and make reasonable effort to keep informed of spouse and children in household Lawyer prior in the same proceeding 28 USC 455 (B2): private practice a judge served as a lawyer in the same case, is grounds for disqualification o Cannot be judge and advocate o Federal courts will disqualify, but not for the law firm (B4): judge knows that individually or fiduciary he/she has financial interest, this DQ o C. Class action motion to dismiss: several conferences the judge has expressed hostility to the lawyers position & is making calls asking Qs (bias/personal views) *Allege bias or prejudice for DQ must stem from extrajudicial source and result in an opinion on the merits of some basis other than what the judge learned in his participation in the case Cannon 3 (B) Adjudicative responsibilities: hear matters assigned, be faithful to the law, require order & decorum, be patient, dignified, and courteous to litigants, perform w/o bias or prejudice, require lawyers to refrain from saying prejudicial words or conduct, give everyone a right be heard, not make public comment (E) Disqualification: (1) (a) A judge shall disqualify him/herself I which impartiality may be reasonably questioned, such as the judge has a personal bias or prejudice concerning a party or partys lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings Judge made a speech Canon (3) (B) (7): shall not initiate, permit, or consider ex parte communication. C#6 A judge may not independently investigate facts in a case and must consider only the evidence presented
Extrajudicial Conduct & Judicial Selection (Problem 6-2) Problem: Law clerk for Justice, before her appointment Prez of bar assc, involved in civic and charitable org, member of task force, board of visitors for univ [Cannon 4 C: Governmental, Civic, or Charitable Activities] 1. Taskforce a. Okay: uniform administration, judicial expertise, b. Less okay: time interference, controversial, partisan, impartial appearance, pre-judge 2. Board of Visitors a. Impropriety problem if a case involved the univ as a party b. HOWEVER, we want judges to be open-minded, not empty headed i. Local and community experience is a pluswise, exp, and good judgment c. Cannon 4 (H) Compensation, Reimbursement and reporting i. (1) when it is okay: reasonable & actual costs ii. (2) public reports B. Representation of Public Interest 1.11 Special Conflicts of Interests for Former and Current Government Officers & Employees (a) A lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in which they personally AND substantially participated, UNLESS written informed consent (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter UNLESS: (1) the disqualified lawyer is timely screened & is apportioned no part of the fee; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. (c) A lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. term "confidential government information" means information that has been obtained under governmental authority and not disclosed to the public A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened and is apportioned no part of the fee. (d)A lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) not participate in matter they personally and substantially connected in while in private practice or nongovernmental employment, UNLESS the appropriate government agency gives its written informed consent; OR (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private
employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). (e) As used in this Rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and (2) any other matter covered by the conflict of interest rules of the appropriate government agency. MR: Public Service o 6.1 Voluntary Pro Bono Public Service Every lawyer has a responsibility to render at lease 50 hrs each yraspiration, but not mandatory, cannot be punished o 6.2 Accepting Appointments If you are appointed, then you should that the appt as a fair share. Should not avoid to take the appt except for a good cause, such as likely to result in rules violation, unreasonable financial burden, client is so repugnant to likely impair the C-L-R or the lawyers ability (ways to w/d) o 6.3 Membership in Legal Services Organization Lawyers are encouraged to participate and be officers of legal service organization, but watch for conflicts of interests with clientsshall not knowingly participate if incompatible w/ obligation or material adverse effect o 6.4 Law Reform Activities Affecting Client Interests May serve as director, officer, or member of an organization for reform of the law or its admin, but may affect the interest of a clientif it benefits, then must disclose the fact, but not identity of client o 6.5 Non Profit & Court Annexed Limited Legal Services Programs Non-profit program e.g. volunteer legal services on Sat, helping for that DAY Only subjected to the conflict of interest rules (1.7, 1.9 (a)) if the lawyer KNOWS the conflict exists 1.10 applies, so conflict of interest applies to the WHOLE FIRM, have to know if another lawyer has a conflict of interest w/ that client
Role of Govt Atty: Speakers: Davis, Berstein, & Mehlman o Has an ethical obligation to seek justice, not so much for private atty to strive for a fair outcome or seek justice in cases MR impose no greater obligation on govt attys thatn on private lawyers to achieve just outcomes 2.1 counsel for legal and non-legal (b) client has a right to reject advice and the lawyer bears no responsibility other law may grant greater authority on govt lawyers o Lanny Davis (former special counsel to President Clinton and spokesperson for Prez on matters
concerning campaign finance investigation)
--Working as special counsel for President Clinton Attorney-Client Relationship as Govt employee
Who was his client? (no clear answer) o Advocate for Prez or tell truth to the people Client was the Prez, but the ppl paid the bill Kenneth Stars investigation: he had to testify when subpoena o His own client Have to live w/ yourself and was in the best interest of the Prez for him to tell the truth o Example: Monica Lewinsky scandal Prez had a private and govt lawyer Govt atty covered the impeachment Can be some overlap Intercept of media, law and politics Example: Lincoln Bedroom issue o +800 guestsinvited to energize contributions o How do you deal w/ this? Redact the documents: NO covering up w/ exec privilege doesnt work in the mediathink you are hiding something Spin the words: GET THE WHOLE STORY Give plausible interpretation o OUTCOME: Better to PREEMPT, than respond Do a factual investigation (need all the facts) Then, call a trusted reporter to give the WHOLE STORY, good and bad Release it before a holiday Give all the facts at once o Example: how many stayed, who, who contributed, when Find a mitigating fact Choose reporter from Associated Press Large consumer base, 150 papers, no competition, time sensitive Ethics about lying for a client to the media or court o DO NOT DO IT Opponents will find out Ruin your career o Balance w/ the media 3.6 Trial Publicity 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 o Argumentative: material; right to respond/rebut, truth is not prejudicial
o Internet: once its on the net, it doesnt go awaywant the truth out as soon as possible o Civil Liberties Board Improper structure: reporting to Prez, overseeing Prez, and reporting to Congress Drawing lines: investigation of Guantanamo Great privilege to make sure the authorities are being careful about civil liberties while there are investigating terrorism o Are being careful about civil liberties o Proper training and awareness Resignation (letter to members) Compromise language in Congressional report Edited by the White house w/o permission from the board o No real oversight on policy o Political Mismanagement in the Bush Administration Secrecy World of Terrorismcannot be transparent in intelligent agencies Clinton was open and is still lead to indictment for impeachment Revolving Door Issues: Jodie Bernstein o Worked with HHS, FTC, general counsel, EPA Famous rule under Title 9 while at HHS Athletics for all genders in schools, K-12 level Role of General Counselorrelevant who is responsible for what (i.e. inside or outside cousel) Bernstein was a trusted problem solverspotting and solving issues o Difference in what can be said in the private v. public sector o Obligation to the company, not the individual Revolving Door: Movement of lawyers into and out of govt practice Benefits: no permanent legal bureaucracy, enhances official decision making, balance b/w independence & accountability, aid to govt recruitment, training & experience o Bernstein good exampleable to get exp and bring it to the inside o Way to solve problemsgo to the Ethics Offc and get opinion Problems: abuse of position, protection of client confidences, unfair advantage, encourages favoritism Strategy Work together Share visibility o MR Need to know what bar and what. agency rules exist Need to keep in mind that there are different sources Remember that usually agencies have office of ethics Permitted to give waivers Remember the rules say it is ok to go to a lawyer and get ethical advice
Lobbying: Bruce Mehlman o Ethics in Lobbying Lawyers have the code of conduct & precedent Lobbyists have to be ethical for reputation interests Lobbying methods: big corporations & pro bono clients Duties: understand the facts & data, formulate their argmt the best way for their audience Conflicts: Duty of loyalty to client if conflict exists w/ potential client o Example: Pepsi v. Coke or Time Warner v. Coaxial o There are NO Rules that says they cannot do it o Whats the ethical decision? Stay with first client IN or first client w/ this issue BEST: in most cases, work if out Forced to make a decision: BEST: inform the clients of the situation o Do not want to hurt reputation, nor be labeled disloyal o CAN ONLY BURN SOMEONE ONCE!! Bad rep, no biz Withdraw from representation when theres fundament disagreement in the means o EX: client wants you to take aggressive approach w/ friend thats a Congressman Loyal to friend, poli beliefs, or client? o Establish Good Faith Argument Inform client of what you will or will not do If opposing friend, inform them you are not on their side this time & hope they understand Fess: Majority of lobbying firm negotiate a flat fee Set-up a retainer: return the excess and ask for more if need be Model Rules: Partnerships of lawyers + Lobbyists Ancillary Businesses=variety of non-legal services by law firms o Such as: lobbying, tax, inv, intl trade, environmental consulting, real estate, labor relations, econ research, public affairs, & medial relations 5.4 Professional Independence of a Lawyer: o (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 o (d): A lawyer SHALL NOT practice in the form of a prof corp or asss authorized to practice law for a profit, IF: Nonlaywer owns any interest, is corp director or officer, has right to direct or control the prof judgment of a lawyer
o Rationale: prevention of interference by non-lawyers & concern about unauthorized practice of law o DC Rule: CAN team up with non-lawyers 5.7 Responsibilities Regarding Law-related Services (a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided: (1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or (2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist. (b)The term "law-related services" denotes services that might reasonably be performed are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer. Rationale: Questionable distinction w/ regard to business relationships b/w lawyers & non-lawyers. Lawyers may employ non-lawyers to provide various law-related service, but CANNOT share legal fees Gift Rule Believes lobbyist SHOULD be banned from making political contributionscontribute to charity Money & Politics Political Fundraisers: most donors are lobbyists (Tiers: max $4600$200- 250 for young professionals) o Thinks Congresspersons should see the world o Meals are NOT inherently bribes, now max $50 (breakfast good idea) Spouses: Watch how things tie togetherif it smells bad (e.g. chair of FCC telecom biz and wife getting more catering) Dating: No one on the Hill, dates others on the Hill (conflict of interest) Charities: Slippery slope if biz starts donating to your wifes cause smells bad **Obstruction of Justice: most common crime lobbyists and politicians go to jail for Violations of the Model Rules for lobbyist who is a lawyer too (pays dues) Can take his license o Make sure you inform your clients that you are NOT rep them as a lawyer (not legal advice) No attorney-client privilege, but not in a matter nor have a legal client o State scope of representation in the engagement letter V. Business and Securities Practice: Ethical Issues A. Criminal or Fraudulent Conduct by Clients
Enron o o o o
Assets/liabilities Harass the analysts Idea of its not fraud.its cutting edge What is the standard to determine when the lawyer is on the hook Knows Reasonably should have known ( negligent ) Factors Who is the lawyer o Opinion letters Example: Patent validity and Scope 2 people.2 months Partner careful review Corporate counsel Signed letter Every word in the letter is scrutinized o Example Mark to market Enron says $10 million in 5 years PV= $ 8m, profit now Fraud?..Cant tell o Nigerian barge Enron buys 500K Sell to Merrill Lyn 1mil ( cash) Contract - 60 days later Enron will repurchase it for 1.7 mil Model Rules o 1.2 (d) Knows o 5.2 Can talk to someone more senior under 5.2 What is reasonable? If its not then your violating 5.2 o 1.13 (b): Report up Knows, violation and substantial injury to the organization Lawyer SHALL report up o 1.13 (c) Reporting out If no response may report OUT Only can report if harm to the organization ( i.e. Enronnot the clients etc.) o 1.6 (b) (2) (3) Can reveal confidence to prefer .substantial injury to another Uses MAY o 1.13 (d) If your the defense lawyer you do not disclose Cant half way through say I think there was fraud and Im gonna tell everybody
Sarbanes Oxley o It only applies to people practicing in front of SEC ( practicing securities) o Change of 307? Has own version of reporting up (going up the ladder) Evidence Material violation- report up If no appropriate action? Go to audit committee QLCC; if already established go to QLCC o How much do you have to know Knowledge, reckless, negligent Securities Fraud o i.e. maybe you are apart of the fraud and you can be sued o Primary ie. you are involved in the fraud yourself. Then you can be sued for money in civil suits ( Vincent elkins) Sec can sue DOJ can come after you Criminal law yes o Secondary Just helping it alongnot making fraudulent statements.then you are not on hook for civil suits Sec can sue ( same as above) DOJ can come after you ( same) Criminal law yes (same) o Legal malpractice If you were negligent and it CAUSED the injury then you may be liable Summation o MR- diabarrment o SO- cant be a securities lawyer anymore o SF- under federal statue ..could get sued by SEC, DOJ and maybe private folks o Legal malpractice
VII. OTHER MATERIAL A. NIFONG: Ethical duties of a prosecutor Facts: He lied to the court about DNA test results o What MR? 4.1 Truthfulness in statements to Others False statement to 3P 3.4 Fairness to Opposing Party and Counsel Knowing disobey an obligation under the rule of a tribunal (c) Rules of tribunal o Something to worry about in discovery 3.3 Candor Toward the Tribunal (a) (1) A lawyer shall not knowingly make a false stmt of fact to a tribunal or fail to correct
3.8 Special Responsibilities of a Prosecutor (*they have a higher degree of immunity than police, every day they are suing othersthey do it w/ words, other than violencepolice have qualified immunityvery complicated) (d) timely disclosure to the defense of all evidence o Exculpatory material o We know these reasons: Due process, fair trial, but also (d) (f) refrain from making extrajudicial comments and exercise reasonable care o Demonizing untrue factshard to tell the factsallegations went in so many directions Criticism? o Should we have way more ethics? o This happens all the time? The bar was making an example of out him He put himself out therevisiblywas running for office o Hes apologized for making the stmts o 3.6 Lawyers as Witnesses He did violate this Speaker Davis was trying to say you were freebut the bar viewed you stricter than 1st Amd o Who are the Third persons that were given false stmts? Everyonepeople of North Carolina and every citizens (national public broadcast) o 8.4 Misconduct (c) dishonesty, fraud, deceit or misrepresentation (d) conduct involving prejudicial to the administration of justice o 8.1 Bar Admission and Disciplinary Matters False stmt to the bar A lot like perjury Decision by the Bar Found guilty of 17 counts How can he apply for reinstatement? o There were aggravating (people mad) and mitigating (1st time offender, good reputation, running for officejudgment clouded) factors o Should his license be taken for life? HYPO: A 24 year old lawyer and made a mistake History, we think of rehabilitation and think the person paid their dues and should be able to come back forgiveness o Do you think they should be able to come back? (5 yrs, lifetime) Petition processshow that he is doing good Cloud on their namesthe athletes that he lied onlost reputation o **exonerated list ??? Lost jobs
Left Dukeunspeakable loss No lacrosse $3 million attorney fees Others affected: NC justice Durham B. Drug & Substance Abuse (Dr. Dorn) Model Rules o 1.1 Competence: have to perform competent work o 1.3 Diligence: act w/ reasonable diligence and promptness o 8.3 Misconduct: (a) raised substantial Q to trustworthiness, fitness, or honesty Should inform the bar or alert the firm if you know someone has a problem b/c the client and firm can be harmed Every state bar has a hotline for substance abuse problems Assistant programs and level of confidentiality Penalty: often suspension, but get their license back

Coughlan Professional Responsibility Fall 2011

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