Professional Documents
Culture Documents
Broader
Cant reveal anything related to the representation of a client
without consent
Shield all information regardless of the source (client, agent,
third party)
Confidentiality includes ALL disclosures that could
reasonably lead to discovery
Duty can attack before a lawyer/client relationship is formed;
(even if none was formed)
Attorney-Client Privilege
Narrower (not everything is privileged)
Only covers communications pertaining to legal services (not
facts! general advice/business advice not privileged)
Shields information obtained from the client or his/her agent(s)
(Kovel standard of third parties (translators, paralegals,
assistants, interns, investigators, etc.)
Only pertains to legal services (not subjects like business
tactics or political consequences)
Privilege does not protect what a lawyer visually
sees/observes; physical acts are NOT privileged
The privilege belongs to the client; the lawyer has the duty to
invoke the privilege
Prevent FUTURE
fraud or financial
crimes
Mitigate / rectify
PAST fraud
Compelled
Requires a lawyer to report certain misconduct of other lawyers, but not If such
reporting would require of information otherwise protected by 1.6
Defines the nature of conflict of interests with former clients and restrict the use
of info from the former clients representation except as 1.6 would permit or
require.
Sets out the special duties and roles lawyers whose clients are organizations.
Comment indicates that rule 1.13 does not limit or expand the lawyers
responsibilities under 1.6
Permits lawyers to prepare materials on a clients behalf for the evolution by third
parties. In doing so, [except as authorized in connection with a report of an
evaluation, information relating to the evaluation is otherwise protected by 1.6
Requires lawyers to disclose certain facts to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by 1.6
Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer:
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a
client's decisions concerning the objectives of representation and,
as required by Rule 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such
action on behalf of the client as is impliedly authorized to carry
out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case, the lawyer shall
abide by the client's decision, after consultation with the lawyer,
as to a plea to be entered, whether to waive jury trial and whether
the client will testify.
(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.
(c) A lawyer may limit the scope of the representation if the
limitation is reasonable under the circumstances and the client
gives informed consent.
(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.
The client decides the objectives // The lawyer decides the means
In civil cases: client decides whether or not to settle
In criminal cases: client decides whether
to plead guilty
to waive jury trial
to testify
Rule 1.2 does not define "objectives". But Comment 2 to Rule 1.2 notes that "clients normally defer to the special knowledge
and skill of their lawyer," and lawyers usually deer to clients with respect to "questions such as the expense to be incurred and
concern for third persons who might be adversely affected." Ross said this comment doesnt really sound like this relates
to an objective, but not most important thing to clients most of the time
Lawyers usually defer to clients on matters such as expenses and concern for third persons who might be adversely affected
o Example of third parties affected = battered wife doesnt want her children involved in a lawsuit against her
husband.
Restatement 21, comment e:
A lawyer may take "any lawful measure within the scope of representation that is reasonably calculated to advance a client's
objective."
Unless a lawyer and a client have agreed otherwise, the lawyer, not the client, should make decisions that "involve technical
legal and strategic considerations difficult for a client to assess."
The lawyer made decide whether:
- to move to dismiss a complaint; what discovery to pursue; to accommodate opposing counsel
- to object / waive objections to questions during hearing
- to decide what questions to ask witnesses.
When a lawyer represents a client whose capacity to make decisions regarding the
representation is diminished, the lawyer must attempt to maintain an ordinary lawyer-client
relationship the extent possible.
In seeking a protective action for a client, a lawyer may reveal confidential information to the
extent reasonably necessary to protect the clients interests
Ross says this is one of the best of the model rules
Important Comments to Rule 1.14:
Comment 2: a lawyer must treat the client with respect and maintain communication
Comment 3: when family members are involved, look to client for decisions, not to the family members, unless protective
action under Rule 1.14(b) is necessary
Comment 6 : In determining the extent of the client's diminished capacity, the lawyer should consider and balance such
factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to
appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the
known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from
an appropriate diagnostician.
(a)(1) violation of rule = conflict of interest, you must get off the case. If
your continued assistance will result in a crime, you must withdraw out of
the case. Anytime your involvement will violate the rules.
(a)(2) When your mental/physical abilities are such that you cant do your
job, you must withdraw.
(a)(3) lawyer is FIRED!
1.16(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material
adverse effect on the interests of the client;
(1) can withdraw for any reason so long as your withdrawal will not prejudice the
client (only rule where it does matter if theres prejudice, any reason at all so long as it
wont prejudice the client)
(2)-(7) you can withdraw even if there is prejudice
(2) client is using your service for a crime or a fraud on going criminality
withdraw!
Interesting that 1.16(b)(2) says that lawyer may withdraw from representing a client
in a course of action the lawyer reasonably believes is criminal or fraudulent, but
doesnt say must.
(3) previously used my services for a crime or a fraud previously withdraw!
if youre infornt of a judge you must ask for court permission to withdraw, if the court doesnt give you permission, you must continue with the
case.
If you took money and havent used the full fee, you must give a refund.
1.16(c)Alawyermustcomplywithapplicablelaw
requiringnoticetoorpermissionofatribunalwhen
terminatingarepresentation.Whenorderedtodosoby
atribunal,alawyershallcontinuerepresentation
notwithstandinggoodcauseforterminatingthe
representation.
1.16(d)Uponterminationofrepresentation,alawyer
shalltakestepstotheextentreasonablypracticableto
protectaclient'sinterests,suchasgivingreasonable
noticetotheclient,allowingtimeforemploymentof
othercounsel,surrenderingpapersandpropertyto
whichtheclientisentitledandrefundinganyadvance
paymentoffeeorexpensethathasnotbeenearnedor
incurred.Thelawyermayretainpapersrelatingtothe
clienttotheextentpermittedbyotherlaw.
f.
a) Rules give you lots of options and empower you to do lots of thing
iii. 5-7: The Foster Child
1) Representing an 8 year old child who was removed from her parents in child abuse/neglect proceedings.
Grace was removed from her mother's home after she was discovered to have welts on her arms and legs.
She's in temporary foster care. Grace has a psychotic disorder for which she takes medication. Possible
placements for Grace include: returning to mom; living with grandma...
a) Should you advocate for a particular placement for Grace at the upcoming hearing? If so, which
placement
Option to send her to the home where someone can trump her
You have the power under 1.14 to take steps on her behalf (diminished capacity)
Or alternatively, you have the option to move to withdraw because the client has an objective that you find
repugnant