PROFESSIONAL RESPONSIBILITY OUTLINE SPRING 2012

PROFESSOR HOROWITZ

TABLE OF CONTENTS
I.

INTRODUCTION TO LEGAL ETHIC ........................................................................................................................................ 2

II. SOURCE AND APPLICATION OF LEGAL ETHICS RULES. ................................................................................................... 3

III. BEGINNING AND ENDING THE LAWYER-CLIENT RELATIONSHIP .............................................................................. 4
DUTY TO TAKE SOME KINDS OF CASES ................................................................................................................................................................ 4
PRO BONO PUBLICO SERVICE ................................................................................................................................................................................ 5
GENERAL RULE: DUTY TO FOLLOW THROUGH .................................................................................................................................................. 5
FRIVOLOUS CLAIMS ................................................................................................................................................................................................. 6
IV. ATTORNEY FEES AND FIDUCIARY DUTIES.......................................................................................................................... 6
V. CONFIDENTIAL INFORMATION ................................................................................................................................................ 7
VI. ETHICAL ISSUES IN SOCIAL MEDIA & E-DISCOVERY........................................................................................................ 9
EMAIL ...................................................................................................................................................................................................................... 9
METADATA ............................................................................................................................................................................................................ 9
OPTION WHEN RECEIVING PRIVILEGE INFORMATION...................................................................................................................10
SOCIAL NETWORKING ....................................................................................................................................................................................10
VII. CANDOR IN LITIGATION ........................................................................................................................................................ 11
VIII.

FAIRNESS IN LITIGATION .............................................................................................................................................. 11

IX.
CONFLICTS OF INTEREST .................................................................................................................................................. 12
LAWYERS, CLIENTS, AND THIRD PARTIES .........................................................................................................................................................12
CONFLICT BETWEEN TWO CLIENTS ...................................................................................................................................................................13
X. COMPETENCE, DILIGENCE, AND UNAUTHORIZED PRACTICE ...................................................................................... 14

PROFESSIONAL RESPONSIBILITY OUTLINE SPRING 2012

PROFESSOR HOROWITZ

I.

INTRODUCTION TO LEGAL ETHIC

The Myth of Self Regulation, Fred C. Zacharias

o People like to say the law is self regulated but in actuality it is a heavily regulated industry.
Common law liability
Administrative Agency rules
o ABA Model Rules Even thought they talk about self regulation they were meant to be adopted by the courts
and applied to all attorneys

Legal Ethics Fall Apart, John Leusdorf

o Trends in Legal Ethics
The innovations have tended on the whole to restrain the freedom of lawyers to pursue their clients
interests at the expense of others
Innovations tend to enact reqs. That are relatively particularized in their content and in their
addresses compared to the generalities addressed to all lawyers that prevail in the lawyer codes.
Despite being narrow the new requirements have often included non-lawyers within their scope.
Regulators have sought to regulate the bar
New regulators tend to be federal
o Consequences Move from Ethics to hard law
o Governmental Controls
Forfeiting Atty Fees Comprehensive Forfeiture Act of 1984 Makes it possible for US AGs to
defund private counsel
o Limiting Confidentiality
Prisoners and lawyers
Civilians disclosing information to prevent crime or death
Inducing Co. to waive atty/client privilege in order to avoid indictment
The deficit reduction Act of 1984 those engaged in trade or business must report to treasury
amount and payer of all $ payments more than $10,000.

Statement of Client Rights Made for laypeople, Easy to comprehend, Supposed to post so clients know their rights
o Clients to be treated with Courtesy and Consideration
1) So the clients stay, 2) Referrals, 3) So they return for other matters
o Entitled to Atty that is competent/handle diligently
Whats client right in the relationship?
Client may fire you, withdraw from relationship, for any or no reason-- Doesnt mean atty
isnt entitled to certain compensation
Children (infants in the eyes of the law) and Estates -- Court has oversight to prevent atty
withdrawal
o Independent Professional Opinions Without Conflicts of Interest
CoIs may be waived in certain circumstances
o Reasonable Legal Fees
Standard comparable attorney/work/field
o Communications Returned Promptly
#1 cause of client complaints
o Stay Informed and Receive Copies of Your Papers
o Legitimate Objectives
o Privacy
To the extent permitted by law
o Ethical Treatment
o No Discrimination
Does not mean you cant choose your clients

Attorneys Finding Information That Shouldnt Be in Their Hands

o Rico v. Mitsubishi Motors Corporation, Supreme Ct. CA 2007 Lawyer forgets his briefcase with notes
about a case in a conference room, opposing counsel finds them and uses.
Entire documents are work product, discovery writings are protected.
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PROFESSOR HOROWITZ
Labeling of Document with privileged doesnt automatically make it privileged but it is a good idea
to do the labeling
Lawyers should refrain from examining the materials anymore than is essential to ascertain if
the materials are privileged and shall immediately notify the sender that he or she posses
material that appears to be privileged
Who has the burden of showing that it is workproduct? The party that wants the documents
removed

NY RULE 130 Sanctions and Costs

Applies only to litigation (only civil
litigation)
o Exceptions certain
proceedings in family court,
limited jurisdiction
Penalties sanctions up to 10,000
and costs and atty fees
o Once for each incident of bad
conduct
o Cap to costs/atty fees? Actual
cost or reasonable attorney
fee
Behaviors that Warrant Sanctions
Frivolous Conduct
o Lying (50%)
o ? (50%)
o Applies to Atty/Client

FRE 502 Attorney Client Privilege and

Work Product

Federal rules are general regarding

privileged matters

Waiver of work product is only

available if intentional, information
regarding same subject matter and
they ought to be considered together
in fairness

Inadvertent disclosures do not

operate as waivers if 1) inadvertent,
holder of privilege took reasonable
steps to prevent and prompt steps to
rectify.

II. SOURCE AND APPLICATION OF LEGAL ETHICS RULES.

Organization of the Bar

o No more ability for the state to distinguish between resident and
non-resident bar applicants
o Best approach is to take 2 bars
o AS soon as your admitted, get admitted to all the NY State Districts

Residency Requirements Once Admitted

o Lichtenstein v. Emerson, 251 A.D.2d 64 (N.Y. App. Div. 1998) A
state has an interest in ensuring that its licensed attorneys are
amenable to legal service of process and to contact by clients,
opposing counsel, the courts, and other interested parties.
Local office requirements for residency are constitutional
o BUT Schoenefeld v. State of NY Challenging NY Rule 407
residency requirements, the N.D.NY declared that Rule 470 is a violation of the Cx Privileges and Immunities
Clause

Character Requirements
o In Re DeBartolo Atty misstates something about his high school history, says he has between 200-400
parking tickets, and had falsely represented himself as a police officer on two occasions. The Illinois bar
refused to license him based on his character
An applicant for admission to the bar must show that he possesses the good moral character and
general fitness necessary for the practice of law. This atty does not meet those requirements.

NY Judiciary RULE 470

If you have bar and office in
this state you may live in
adjoining state
If you dont have an office in
NY, you cannot practice in
NY if you live in an adjoining
state
Differentiates between
Residents and non
residents

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PROFESSOR HOROWITZ

Pro Hac Vice an attorney who has been admitted in one state and
NY Court of Appeals Rule 520.11, Rules
who want to represent a particular client in a court of another state
of Appellate Division, 2d Dept. 690.3
may petition to appear pro hac vice for this turn only
Pro Hac Vice Reqs. Any attorney
o There is no right to appear pro hac vice and each case requires
may apply, ex parte, for admission
a separate petition.
to the NY bar for a period of 18
o Sheller v. Superior Court (CA) Specific case admission for CA
months, they must file a petition
bar
basically stating who they are and
Reqs. 1) local lawyer affiliation, 2) local lawyer is
what there standing in the field of
contact person
law isc.
Discipline
o In re Mountain (Kansas) Shady lawyer promises to
represent couple in adoption proceedings, proceed to lie to them and arrange for adoption by richer couple
who paid more, he blatantly lied to original couple and there was a lot of money involved
He is disbarred, definitely violated ethics, pretty much all of them.
o In re Holmay (Minnesota) Lawyer forged documents with a signature, only suspended for 30 days

III. BEGINNING AND ENDING THE LAWYER-CLIENT RELATIONSHIP

DUTY TO TAKE SOME KINDS OF CASES

General Rule: Lawyers Are Not Public Utilities

o R3Law Governing Lawyers 14
o A public utility has a duty to serve anybody who wants service and can pay for it. A lawyer need not serve just
anyone who walks into the office
o A lawyer may reject work for any reason (exceptions listed below)
Exceptions to the General Rule
o The Attorney's Oath - Never to reject, for any consideration personal to himself or herself, the cause of the
defenseless or the oppressed

ABA Model Rule 1.18: Duties to Prospective Clients

(a) discussion about possibility of relationship makes
you a prospective client
(b) even if no atty/client relationship ensues, lawyer
may not disclose information learned
(c) An atty cannot represent a client with interests
materially adverse to PC in same of related
matter, if an atty is disqualified so is the firm in
such a matter
(d) If disqualifying information, representation is
permissible if:
(1) Both client and PC have given writing
consent
(2) Reasonable measures taken to avoid
exposure and
(i) DL screened from participation
and no fee and
(ii) Written notice to client.

NY Rules of Professional Conduct 1.18: Duties to

Prospective Clients

(a) discussion about possibility of relationship makes you a

prospective client
(b) even if no atty/client relationship ensues, lawyer may not
disclose information learned
(c) An atty cannot represent a client with interests materially
adverse to PC in same of related matter, if an atty is
disqualified so is the firm in such a matter
(d) If disqualifying information, representation is permissible if:
(1) Both client and PC have given writing consent
(2) Reasonable measures taken to avoid exposure and
(i) Firm acts promptly and reasonably to notify
personnel about disqualification
(ii) Implementation of effective screening procedures
(iii) DL gets no fee and
(iv) Written notice to PC
(3) An RL would conclude firm can provide competent
and diligent rep.
(e) A person who:
(1) Comm. info unilaterally w/out reasonable expectation
of relationship; or
(2) Comm. w/ an atty for purpose of disqualifying the atty,
IS NOT A PC.

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PRO BONO PUBLICO SERVICE

Bothwell v. Republic Tobacco Co. (District Court Nebraska 1995) Bothwell has civil case against Republic Tobacco.
He submits a request to the court to proceed in "forma pauperis." The court granted the P's request and appointed
Paula Metcalf as counsel. Metcalf contends that appointing her as counsel is "contrary to law and clearly erroneous"
because "a federal court has no statutory or inherent authority to force an attorney to take an ordinary civil case for
no compensation."
o Mallard v. USDC - section 1915(d) does not authorize a federal court to require an unwilling attorney to
represent an indigent litigant in a civil case
o When indegency is the principal reason for disparate access to the civil justice system in an individual
case, a federal court does possess the inherent authority to bring about a fair and just adjudicative
process by conscripting an unwilling lawyer to represent the indigent party.
o Court's inherent power exists for two purposes
to ensure a "fair and just" adjudicative process in individual cases; and
to maintain the integrity and viability of the judiciary and of the entire civil justice system.

ABA Model Rule 6.1: Voluntary Pro Bono Publico

Service
Every lawyer has a professional responsibility to
provide legal services to those unable to pay.
50 hours at least
Substantial amount of the 50 must be through serving
the poor

NY Rules 6.1 Voluntary Pro Bono Service

Lawyers are strongly encouraged to provide pro bono
legal services to benefit poor persons.
At least 20 hours
Purely aspirational
Allowed to provides funds for pro bono instead of
actually serving.

GENERAL RULE: DUTY TO FOLLOW THROUGH

Ruskin v. Rodgers (App. Ct. Illinois, 1979) D contends he was deprived of a fair trial because of denial by the trial
court of d's motions for continuance and substitution of attorneys, he had asked for continuance two days before trial
o Trial court possesses broad discretion in allowing or denying a motion for continuance. Denial of such a
motion will not be disturbed on appeal unless there has been a manifest abuse of discretion or a palpable
injustice. Heightened consideration once case has reached trial stage.

Rosenberg v. Levin (Sup. Ct. FL 1982) Levin hired Rosenberg and Pomerantz to perform legal services pursuant to a
letter agreement which provided for a price structure. Levin later discharged them without cause before the legal
matter was resolved and settled the matter. R&P sued for "quantum meruit" evaluation of their services.
o A lawyer discharged without cause is entitled to the reasonable value of his services on the basis of quantum
meruit, but recovery is limited to the maximum fee set in the contract entered into for those services.
o Quantum Merit Rule: an attorney discharged without cause can recover only the reasonable value of services
rendered prior to discharge
implied condition in every attorney/client relationship that the attorney may be discharged
NY RULE: the attorney's cause of action accrues immediately upon his discharge by the client
CA RULE: accrual at the client's resolution because it is based on his reward

Holmes v. YJA Realty Corp (NY, 1987)

o Once representation of a client in litigation has commenced, counsel's right to withdraw is not absolute.
o DR 2-110(C)(1)(d) of the Code of PR state that an attorney's withdrawal from employment is permissible
where a client "renders it unreasonably difficult for the lawyer to carry out his employment effectively -

PROFESSIONAL RESPONSIBILITY OUTLINE SPRING 2012

PROFESSOR HOROWITZ
Where a client repudiates a reasonable fee arrangement there is no obligation on the part of counsel to
finance the litigation or render gratuitous services.

FRIVOLOUS CLAIMS
ABA Model Rule 1.16 Declining or Terminating
Representation
An atty SHALL withdraw/not represent:
o Violation of profession conduct or other law
o Attys physical or mental impairment
o Atty is discharged
An Atty MAY withdraw if:
o No material adverse effect on client,
o Fraud
o Atty finds actions repuganant/fundamental
disagreement
o Client fails to substantially fulfill an obligation
o Unreasonable financial burden
o Other good cause
Notice
Protection of Clients Interest

NY Rule 1.16 Declining or Terminating Representation

SHALL not accept if atty knows that person wishes
to:
o Purpose of harassment or maliciously injure
another or
o Frivolous matters
SHALL withdraw if:
o Violation of rules
o Physical/mental condition
o Lawyer is discharged
o Harassment/malicious injury
MAY withdraw
o ABA +
o Client makes it difficult to render appropriate
representation
o Inability to work with co-counsel
Tribunal Reqs.
Protection of Clients Interest

ABA Model Rule 3.1 Meritorious Claims and

Contentions

NY Rule 3.1 Non Meritorious Claims and Contentions

(a) Must have basis in law and fact that is not

frivolous for bringing a claim. If incarceration
then all elements may be pled.
(b) An attys conduct is frivolous if:
(1) The atty knowingly advances an
unwarranted claim under existing law
(2) Conduct has no other purpose than to
delay resolution or serves to
harass/maliciously injure or
(3) Atty knowingly asserts material factual
statements that are false.

A lawyer shall not bring or defend a proceeding, or

assert or controvert an issue therein, unless there is a
basis in law and fact for doing so that is not frivolous,
which includes a good faith argument for an
extension, modification or reversal of existing law. A
lawyer for the defendant in a criminal proceeding, or
the respondent in a proceeding that could result in
incarceration, may nevertheless so defend the
proceeding as to require that every element of the
case be established.

IV. ATTORNEY FEES AND FIDUCIARY DUTIES

Robert L. Wheeler, Inc. v. Scott (Sup. Ct. OK, 1989) Simple

foreclosure case, First billing was paid, second billing amount is
what client is refusing to pay. Atty hears about the fee dispute and
sends a 1st year associate to summary judgment. Client complains
fees are too excessive
o Test court should apply 12 factors to consider
Time and labor
Novelty/difficulty of the subject
Skills required to perform
Loss of opportunity for other employment
Customary fee
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NY 1st Dept. Rule 603.7 Retainer and

Closing Statements
Actions: property damage, personal injury
or wrongful death
Reqs: 1) filing of a written statement of
the retainer, 2) if no receipt w/in 10 days,
atty must ask for it
Two Alternative Schedules for Contingent
Fees
o Based on % recovered,
o Atty can charge a max of 33.3 %
Designed to give attys incentive
to take smaller cases

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PROFESSOR HOROWITZ

Whether the fee is fixed or contingent

Time limitations imposed by the client or
circumstances
The amount involved and the results obtained
Experience, reputation, and ability of the attorney
The undesirability of the case
Casual or regular employment (if there is a long
standing relationship)
Awards in similar cases

ABA Formal Opinion 93-379

o Obligation to make sure to best of ability that client
understands
o Cant bill for more time then you actually spend on the
case

ABA Model Rule 1.16 Declining or Terminating

Representation
An atty SHALL withdraw/not represent:
o Violation of profession conduct or other law
o Attys physical or mental impairment
o Atty is discharged
An Atty MAY withdraw if:
o No material adverse effect on client,
o Fraud
o Atty finds actions repuganant/fundamental
disagreement
o Client fails to substantially fulfill an obligation
o Unreasonable financial burden
o Other good cause
Notice
Protection of Clients Interest

NY Judiciary Law 474(a) Contingent fees

for Medial Malpractice
Sliding scale, 1 schedule, $ atty gets as the
amount goes up gets smaller and smaller
Implemented to try to curb and reduce
fees to lawyers
o Gives atty incentive to settle earlier
thus creating a conflict of interest
Atty may apply for more $ if they gave an
extraordinary service to the client,
allowed for an enhanced fee
o If client is against additional fee, they
should get outside counsel

NY Rule 1.16 Declining or Terminating Representation

SHALL not accept if atty knows that person wishes to:
o Purpose of harassment or maliciously injure
another or
o Frivolous matters
SHALL withdraw if:
o Violation of rules
o Physical/mental condition
o Lawyer is discharged
o Harassment/malicious injury
MAY withdraw
o ABA +
o Client makes it difficult to render appropriate
representation
o Inability to work with co-counsel
Tribunal Reqs.

Limitations on Referrals
NY Rule 7.2 Payment for Referrals
Fees may not be shared with non-lawyers
Can share with a lawyer if
o The lawyer shared in the work and
the work and division of the fee was
fully disclosed to the client
o Joint responsibility

V. CONFIDENTIAL INFORMATION

Washington v. Olwell, Sup. Ct. Was, 1964 Atty refuses to handover knife belonging to client, he cites attorney/client
privilege
o To be protected as a privileged communication, information or objects acquired by an atty must have been
communicated or delivered to him by the client, and not merely obtained by the attorney while acting int hat
capacity for the client
o The communication concerning an alleged crime or farud, which are made by a client to the attorney after the
crime or the fraudulent transaction has been completed, are within the atty/client privilege, as long as the
relationship of the atty/client has been established.
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People v. Meredith, Sup. Ct. CA 1981 Client tells atty where to find a piece of evidence. Atty hires an investigator to
find the wallet. Investigator found the wallet based on the information from the client. Frick testified to where he
found the wallet
o Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the
original location or condition of the evidence in question
o If counsel chooses to remove evidence to examine or test it, the original location and condition of that
evidence loses the protection of the privilege

Exceptions to the Ethical Duty of Confidentiality

ABA Model Rule 1.6 Conflict of
o Client Consent or Implied Authority
Interest: Current Client
ABA Model Rule 1.6 (a) allows a lawyer to reveal a
Except as provided a lawyer
clients confidential information if the client has given
shall not represent a client if
informed consent, or if the nature of the representation
the representation involves
impliedly authorizes the lawyer to reveal the
a concurrent conflict of
confidential information
interest.
o Prevent Future Harm/Mitigate or Rectify Financial Injury
ABA Model Rule 1.6(b)(1)-(3) Lawyer can only reveal a
clients confidential information to prevent the client from committing a future crime that would
cause imminent death or substantial bodily injury
o Self Defense
1.6 allows attorney to reveal information in self defense
In order to get legal advice about complying with legal rules
o Court Order
Allows disclosure of a clients confidential information where that is necessary to comply with a
court order or with some other law

NY CPLR 3101(b), (c) and (d) Scope of

Disclosure
(b) Privileged Matter upon objection by a person
entitled to assert the privilege, privileged matter
shall not be obtainable (discoverable)
(c) Atty Work Product the work product of an atty
shall not be obtainable
(d) Trial Prep
(1) Experts
(i) Must identify expert and what
they will be testifying about if not
enough time to disclose its ok as
long as court approves
(ii) MM may ask for experts
name, not needed
(iii) Further info may be obtained
by court

NY CPLR 4501-4, 7-9, and 10

(1) Self-Incrimination doesnt excuse SI for debts and civil
suits
(2) Spouse (a) adultery cannot testify against spouse in
an action founded upon adultery (b) confidential
information cannot disclose information obtained
because of marriage
(3) Attorney Client Privilege clients privilege to waive, atty
cannot dissolve it
(4) Physician, Dentist, Podiatrist, Chiropractor and Nurse
(5) Confidential Comm. To Clergy
(6) Eavesdropping evidence, admissibility, motion to
suppress in certain cases
(7) Psychologist
(8) Social Worker
(9) Library Records
(10)
Rape Crises Counselor

FRE 501 Privilege in General

FRE 502 Atty/Client Privilege and Work Product,

Limitations on Waiver
Inadvertent disclosure
o Have to prove/show adequate screening used
o Upon knowledge of disclosure took prompt
steps to retrieve
Waiving Privilege undis and dis ought to be
considered together, cant strategically withhold
when related SM

Common law as interpreted by US courts in

light of reason and experience governs a
claim of privilege unless any of the following
provides otherwise (1) Cx (2) Fed. Statute (3)
Rules by Scotus
In civil cases state law
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FRE 502
o Enacted in response to electronic data
o Privilege Log log that keep record .obligation to identity documents that are being withheld but without
identifying the contents of the document.

Neesig v. Team 1(NY Ct. App. 1990) makes clear that ex parte interviews of adversarys former employee are neither
unethical nor legally prohibited

Siebert v. Intuit, Inc. (NY Ct. App. 2007) Siebert entered into a strategic alliance with Intuit to jointly create
brokerage service. Siebert sued Intuit, an atty worked on a shit ton of stuff and somehow was fired. Intuit requested
an interview. Before interview Intuit made sure to tell Atty not to disclose privileged information. Siebert sought to
sanction Inuit
o Disqualification was not justified because Intuit advised atty not to disclose privileged information and not
privileged information had been disclosed

VI. ETHICAL ISSUES IN SOCIAL MEDIA & E-DISCOVERY

EMAIL

Cannot email the opponent attorney and the opponents client in the same e-mail, as this communication with a
represented party. (So never reply all to email from opposing counsel

METADATA

NY Rule 8.4 Misconduct

Lawyer cannot violate the rules of
professional conduct
Engage in illegal conduct
Engage in dishonesty, fraud, deceit or
misrepresentation
Engage in conduct that is prejudicial to the
administration of justice
State or imply an ability to
o To influence
o To achieve results using means that
violate Rules
Knowingly assist a judge in violation of Rules
Discrimination
Any other conduct that adversely reflect on
the lawyers fitness

Information about the information (such as track

changes & comments in a document)
Scrubbing Software
o Always when sending to adversary
o Almost malpractice per se to not scrub
document to send to adversary.
NY Rule 1.6 Confidentiality of Information
Lawyer shall not knowingly reveal
confidential information unless
o Consent
o Disclosure is impliedly authorized
to advance the best interests of the
client
o Allowed by paragraph b
May reveal to extent lawyer reasonably
believes:
o Prevent harm/death
o Prevent crime
o Discovery of misrepresentation
o To secure other legal advice w/in
rules
o To defend against accusation of
wrongful conduct
o To collect fee
Reasonable care to prevent associated from
disclosing confidential information

NY Rule 1.1 Competency

Lawyer should provide competent
representation
Lawyer should not handle matter which
they know they are not competent
Lawyer shall not intentionally
o Fail to seek client objective
through available means; or
o Prejudice client
***That competent requires scrubbing
software, i.e., competent in technology***

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OPTION WHEN RECEIVING PRIVILEGE INFORMATION

ABA
o

Notify other side

New York
o Notify and if other side asks must return and destroy the
document
o Must stop reading document once you realize its privileged
(only privilege if giving legal advice)
o Cant use it, unless you believe disclosure of documents is
waiver of attorney-client privilege, or can use it if document
was called for in discovery
o Cannot mine the other sides documents if you are looking for
privileged materials. (This cannot be justified with zealous
advocating)
o Searing for privileged information is prejudicial to
administration of justice
o If mine for metadata, not clear, but take away is must scrub, be
weary of mining, if find privilege write meme to file, notify
other see, if privilege do not wait for motion to return, but
proactively make motion

SOCIAL NETWORKING

New York
o Can look at other public information and use public information

NY Rule 4.4 Respect for Rights of

3rd Persons
Lawyer shall not use means
that have no substantial
purpose other than to
embarrass or harm a 3rd
person or use methods of
obtaining evidence that
violate the legal rights of
such a person
Lawyer who receives
document relating to the
representation of the
lawyers client and knows
or reasonably should know
that the doc. Was
inadvertently sent shall
promptly notify the sender

ABA Rule 8.4 Misconduct

It is prof. misconduct for a
lawyer to
o Violate rules
o Commit a criminal act
o Dishonesty, fraud, etc.
o Engage in conduct that is
prejudicial to the admin
of justice
o State an ability to
influence a gov.
agency/official
o Knowingly assist a judge
in conduct that is a
violation

Rules of engagement: friending

o Philadelphia
Cant hire 3rd party to friend opposition, as it violates ABA
Rule 8.4(c) (deceptive)
Party must reveal who they are and their intentions
o New York
Attorney can use real name and profile to friend
adversary. However, does not have to reveal any other
information, such as purpose
o San Diego

Friending is a communication.
Can communicate if not about subject matter of
litigation. However, in reality, attorney is trying
ABA Rule 3.4 Fairness to Opposing Party
to get information about the case, not about
and Counsel
subject outside of case.
A lawyer shall not
Rule 8.4(c) is violated, would be deceptive and
o Obstruct access to evidence, alter,
prejudicial to administration of justice
destroy or conceal a doc. Or other
Rule 4.1 violated: May not make false
material.
statements to 3rdparty
o Falsify evidence
Rule does not apply to clients
o Knowingly disobey an obligation
under the rules of the tribunal
ABA Rule 4.1 Truthfulness in Statements to
o In pretrial make a frivolous discovery
Others
request
Lawyer shall not knowingly
o In trial, allude to non relevant matters
o Make false statement of a material fact to
o Request someone other than client to
a third person or
withhold information
10
o Fail to disclose a material fact

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VII. CANDOR IN LITIGATION

Nix v. Whiteside1986 client stabbed/murdered

someone wants to testify that he saw something metallic,
thought that victim was reaching for a gun. Lawyer warns
against, insisting that the testimony w/o falsity is enough.
Client sentenced for murder, Client say lawyers refusal to
let him testify was denial of effective assistance of counsel
guaranteed by 6th
o Ineffective assistance requires
Serious error by the lawyer
Prejudice to the D
o A criminal defense attoryney must be loyal to the
client, but only w/in bounds of lawful conduct

US v. Midgett criminal defense lawyer refused to put his

client on the stand because he believed that the client
would testify falsely
o Defense attorneys duty is to his client didnt depend on whether he personally believed his clients soty, no
on the amount of proof supp. or contradicting the story.

VIII.

ABA Rule 3.3 Conduct Towards Tribunal

A lawyer shall not:
o Make a dales statement to court or
fail to correct false statement
o Fail to disclose controlling
jurisdiction authority
o Offer evidence the lawyer knows to
be false
If adjudication proceedings and known that
fraud is likely to occur must take reasonable
measures including if necessary disclosure
to the tribunal
Duties apply even in consideration of rule
1.6
In ex parte all facts must be told whether
or not the facts are adverse

FAIRNESS IN LITIGATION

Witness Coaching
Ethical if done properly
o Can
Explain how law applies to events in question
Refresh witnesss memory
However, if something is given to witness to help
with their memory, it is discoverable if it actually
helped refresh their memory
Can tell client to answer yes or no with no
explanation
Breaks during Deposition
o NY
Part 221: Deposition rules
BreaksAllowed for any reason if everyone agrees
Unilateral Breaks
o Discuss assertion of privilege
o Enforce prior order of court
o Improper question/question causes
embarrassment
o Federal If everyone agrees
Communication with Juries After Trial
Colorado Bar Associating Opinion 70
o Juries allowed to talk to attorneys and vice versa after verdict
o However, attorney may not harass or embarrass the juror
Publicity: Public Discussion by Attorney about Case
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ABA Model Rule 3.6 Trial

Publicity
Lawyer may not make
extrajudicial statement if 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.
However a lawyer may always
state
o The
claim/offense/defense
involved
o Information in public
record
o Investigation in matter is
in process
o Scheduling/result of step
in litigation

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PROFESSOR HOROWITZ

Gentile v. State Bar of Nevada (U.S.)

o Test
Cannot comment when there is substantial likelihood of materially prejudicing that proceeding
N.Y.
Can respond to adversary in much broader fashion

Matter of Vincenti (N.J.) (Line between zealous advocacy and unethical conduct)
Attorney makes numerous assertions that are sarcastic and disrespectful including accusing court of racism, mocking
the court, and other baseless accusations. Also engaged in outrageous behavior toward witnesses, opposing counsel,
and other attorney in courthouse.
A lawyer has the responsibility in society to safeguard constitutional guarantees and to guard against wrongdoing.
o In doing so, he must exhibit those qualities of moral character such as truth, honor, discretion, and fiduciary
responsibility
o Suspended for one year

IX.

CONFLICTS OF INTEREST

Allocating Decision Making

o Substantive v. Procedural Decision
S some issues are for the client
1) to appeal,
2) to settle
Atty shouldnt abandon defense or stipulate to negligence
Cannot be waived without consent of the client
Consent Policy
o Common in medical malpractice
o Client must consent to settlement
o Against public policy to provide insurance for punitive damages

LAWYERS, CLIENTS, AND THIRD PARTIES

Beckwith Machinery v. Travelers Indemt Co. 638 F.Supp. 1179 Beckwith is sued by Trumbull. Beckwith files
insurance claim with Travelers. Travelers agree to defend part of suit.13 months later they deny all coverage and
withdraw defense. Beckwith sues travelers for breach of duty to defend
o Inconsideration for the Insureds payment of premiums, the insurer becomes contractually obligated to
defend its insured.
o The obligation arises whenever allegations against the insured state a claim which is potentially within the
scope of the policys coverage, even if such allegation are groundless, false or fraudulent .

Phillips v. Carson, 731 P.2d 820, 1987 Carson is Ms. Ps lawyer. He borrows a lot of money. There are two mortgages
which were meant for Ms. P Carson forgets to file them Ms. P seeks independent counsel to secure the mortgages and
demands repayment.
o Carson breached his duties by failing to record the
ABA Model Rule 3.7 Lawyer as Witness
mortgage, failing to properly advise Phillips and failing to
An atty shall not act as advocate
at a trial in which the lawyer is
recommend that she seek outside counsel before lending
likely to be a necessary witness
him money
unless
Related to uncontested issue,
AAA Plumbing Pottery Corp v. St. Paul insurance Co. of Illinois
relates to nature of legal services,
o Two workers compensation actions brought by an AAA
disqualification would result in
employee. St. Paul defended action on part of
hardship to client
AAA. Employee proposed settling all employees claim. St.

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PROFESSOR HOROWITZ
Paul rejected off, but did not tell AAA of offer. Jury awarded employee $3 million in damages. AAA sued St.
Paul for failing to communicate settlement offer. St. Paul notified AAA of its intent to call Gross (Senior
attorney in firm representing AAA) to testify. Moved to prevent Gross and Grosss firm from representing
AAA
If an attorney knows or reasonably should know that he may be called as a witness other than on behalf of the
client, they may not act in the proceeding if their testimony is or may be prejudicial to the client
Test for Disqualifying Lawyer as a Witness
Lawyer must have unique testimony (cannot obtain it from another source)
Would be prejudicial to the lawyers client

CONFLICT BETWEEN TWO CLIENTS

State Farm Mutual v. KAW, Sup. Ct. FL 1991 Wilkerson family injured in car accident. Father ends up as a D in the
insurance case and still a P in the medical malpractice, insurance seeks to disqualify the firm because of a conflict of
interest
o Where a conflict is such as clearly to call in question the fair and efficient administration of justice, opposing
counsel may properly raise the question
o The situation is too ripe with the ability to breach ethical conduct rules

Haagen Daaz v. Perche No! Gelato and Double Rainow Gourmet Ice Cream 639 F. Supp. 282, 1986 Haagen Daaz and
Dbl Rainbow are in a lawsuit. The former attorney for Haagen Daaz now works at the firm representing Dbl. Rainbow.
HD seeks to disqualify the firm because of his association. The firm didnt set up any CoI screening processes until
after the lawsuit was commenced.
ABA Model Rule 1.10
o Rule 1.9(a) a lawyer who has represented a client in a matter shall not
Imputations of CoI:
thereafter (a) represent another person in the same or a substantially
General Rule
related matter in which that persons interests are materially adverse to
the interests of the former client unless the former client consents after
When CoI No lawyers in a
consultation
firm shall represent a client
o Rebutting Presumption
unless based on personal
interest prior firm
Show that atty had no personal involvement in such
association (put screens in
substantially related matters and did not actually receive any
place)
confidential information relevant to the matter in which
disqualification is sought

Imputed Disqualification and Screening

o
o

Firm may represent if atty

has left as long as not
substantially related matter

Presumption that lawyers share everything if they work

together
One lawyer CoI are imputed to the whole firm (Rule 1.10)

Knowing Your Client

o Corporate Rule Look out for shareholders not individual
employees
ABA Model Rule 1.13 Organization as Client

A lawyer employed or retained by an

organization represents the organization
acting through its duly authorized
constituents

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ABA Model Rule 1.11 Special CoI

for Former and Current Govt
Officers and Employees
An atty who has served as public
officer/employee of the G is subject
to 1.9
Cannot represent a client who is
adverse to something the atty has
personal knowledge gained while
working for the G

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PROFESSOR HOROWITZ

ABA Model Rule 1.9 Duties to Former Clients

A lawyer who has formerly represented a

client shall not represent another in the same
matter

X. COMPETENCE, DILIGENCE, AND UNAUTHORIZED PRACTICE

Legal Malpractice
o Refers to attys civiliability to a client or other injured person for professional misconduct or negligence
o Forum is civil court
o Attys adversary is an injured person/client
o Purpose is to obtain compensation for the injured person
o Many times disciplinary hearings are held but no malpractice actions are brought
o Most times with malpractice there are no additional disciplinary hearings
o Violation of rules may be evidence of standard of care
Not always proof but goes toward it
o If P can establish atty violated rule = proof in form of expert testimony goes to judge
o Omission may be cause for legal malpractice

R3 LGL 52(2) in a negligence action, the trier of fact may consider the Ds lawyers breach of such a statute ro rule as
an aid to understanding and applying the std of care, provided that the statute or rule was designed to protect ppl in
Ps position

ABA Rule 1.16

o If atty sued by client for legal malpractice the
atty/client privilege is waived
Becomes a contention in the case

Malpractice Liability Theories

o Intentional Tort very rare, unlikely
o Breach of Fiduciary Duty more likely
o Breach of Contract Confusing in NY because of SoL
SoL in NY for Breach of K is 6 years, 3 for prof. negligence
People used to use K claims attached to neg. to extend SoL, legislators said no, no matter what you
call it, SoL for malpractice is 3 years
o Negligence
In NY no such thing as common law negligence professional negligence
SoL is 3 years
To Whom Does an Attorney Owe a Duty of Care
o Client R3LGL 50 person can be client without having provided a fee or given formalities
Simply by asking for legal help one may establish an atty/client relationship

ABA Model Rule 1.16 Declining or

Terminating Representation
An atty SHALL withdraw/not represent:
o Violation of profession conduct or
other law
o Attys physical or mental impairment
o Atty is discharged

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Duty to Non Client

Prospective Clients
ABA Model Rule 1.18
Invited Reliance
Atty invites the nonclient to rely on his
work and non-client
does
Non client is intended
to benefit
Breach of Fiduciary
Duty to Client

PROFESSIONAL RESPONSIBILITY OUTLINE SPRING 2012

PROFESSOR HOROWITZ
ABA Model Rule 1.18: Duties to Prospective Clients
(e) discussion about possibility of relationship makes
you a prospective client
(f) even if no atty/client relationship ensues, lawyer
may not disclose information learned
(g) An atty cannot represent a client with interests
materially adverse to PC in same of related
matter, if an atty is disqualified so is the firm in
such a matter
(h) If disqualifying information, representation is
permissible if:
(1) Both client and PC have given writing
consent
(2) Reasonable measures taken to avoid
exposure and
(i) DL screened from participation
and no fee and
(ii) Written notice to client.

Standard of Care
o General practitioner: the skill and
knowledge ordinarily possessed by
attorneys under similar circumstances
o Specialist: skills and knowledge of a
specialist
Generally true in NY, no req. than an expert witness be the same specialty as the attorney, but they
must lay the foundation of familiarity
o Jurisdiction usually determines std. of care

Breach of the Duty of Care

o Proximately causes harm
o Lawyers not liable for mere errors in judgment Hodges v. Carter
o Judgment must be well informed if answers are available and lawyer doesnt look = breach

Actual Cause
o P must prove actual cause: proof that injury would not have happened but for the Ds negligent action
If inadequate to determine actual cause
Substantial factor analysis: where several acts unite to cause an injury and any one of them
alone would have been sufficient to cause it the malpractice P can prevail by showing that
the D lawyers negligence was a substantial factor in causing the injury
Proximate Cause
o It is unfair to hold D liable for unexpected injuries or for expected injuries that happen in unexpected ways

Damages
o Direct damages immediate, natural, and anticipated consequences of the wrong
o Consequential Damages for loss that flows indirectly but foreseeably from the Ds negligence

Defenses to Legal Malpractice Claims

o Only solid defense is that atty reasonably believed that the action was required by a law or a legal ethics rule.
o A client may not base a claim on something that the client, after receiving sound advice, instructed the
attorney to do or not to do.
o Assumption of the risk and failure to mitigate damages can be partial defenses to the extent local law
recognizes them in ordinary cases
o SoL Applies Subject to 3 principles

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PROFESSOR HOROWITZ
SoL does not run while attorney continues to represent client in the same or substantially related
manner
True in NY
Representation toll no running of 3years until representation ends
Doesnt start until atty discloses conditions or its obvious malpractice has occurred
Not true in NY (McCoy)
Doesnt start until alleged malpractice actually harms client
Not true in NY
Vicarious Liability
o Helps maintain quality of work by making firm and principles stand behind the work of every lawyer
o If partnership w/o limited liability, the general law of partnership makes each partner liable jointly and
severally with the firm
Malpractice Insurance
o ABA does not require malpractice insurance
o Types of Policies
OLD WAY Occurrence Policies cover the lawyer for act
or omissions made during the policy term
NOW Claims Made covers unforeseen claims made
during the policy period, no matter when the omission
occurred
o Approx. half of states require private practitioners to disclose
whether they carry malpractice insurance
o What about when you retire?
Policy tail covers after retirement for how long?
Would have to calculate tolls, i.e., infancy

ABA Model Rule 5.7

Responsibilities Regarding Law
Related Services
o

Lawyers practicing law

related services are
subject to the Rules of
Professional Conduct
Must inform clients

Multi Jurisdictional and Multi Disciplinary Practice

o Fees may not be shared with non lawyers
o Client perception may think that non legal services are being provided with legal services
ABA Model Rule 5.4 Professional
Independence as a Lawyer
o
o
o

ABA Model Rule 5.5 Unauthorized

Practice of Law; Multi Jurisdictional

A lawyer or law firm shall not share

legal fees with a nonlawyer, except
No partnership with non-lawyer
Nonlawyer may not own shares in a
law practice

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.

McCoy wife wants exs pension, lawyer forget to

file a certain pertinent document in 1987, in 1988 judgment is filed but not with original stipulations, wife looks to
collect around 94-96, the same attorney is still representing her, he claims there is nothing to do about it
o When does the claim accrue?
No discovery rule in NY for malpractice cases
Courts says the other matters in which the atty represented her were not sufficiently related to claim
continuous representation
In NY claims accrue after harm occurs, no continuous representation defense
o Ordinary reasonable skill and duty AT TIME of harm
o Damages Actual
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PROFESSOR HOROWITZ

Prudential Element of privity in legal malpractice

o Issues
Privity req. between atty/client
Relation must be close enough to be considered privity (functional equivalent of privity)

Darby patent infringement claim against lens manufacturer

o They paid fees until $200,00 Darby Firm quits
o Firm hadnt said anything about asking insurer to pay for the cost of going to court
o New firm looks into insurance and insurance agrees to pay for costs going forward
o Standard of care is determined by expertise at time of harm

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