Professional Responsibility Capra 2008

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Professional Responsibility NOT SURE WHERE THIS BELONGS 1. E.g. Professor being considered for chair position but student evaluations not good. He altered the evaluations. Professor was suspended up for life w/a minimum of 3 years from Iowa bar a. His defense was that he was not a lawyer but a professor. But as a member of the bar supposed to act in accordance with ethical rules. i. His action was deceitful b. He also said he was a bipolar diabetic Mitigating circumstances but not enough of an excuse
1. Introduction--Problems of Non-Uniformity.
1.1.
Multiplicity of codes
Structure of the Rules: Generally, the ABA regulates lawyers. o Canon of Ethics Not detailed enough they were too broad, and it was difficult to impose any regulation whatsoever based on them. From this developed movement toward more concrete rules w/disciplinary actions attached to each rule.
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Model Code of Professional Responsibility: had general canons, but perhaps more importantly, disciplinary regulations and ethical considerations. Disciplinary Regulations: violations of which have discipline attached to them; what you must do or what you cannot do. Ethical Considerations: these do not have the force of discipline; things that you should do, above and beyond the minimum (which are the DRs). Same for Model Rules Problems with the Model Code it tended to see lawyers solely as courtroom trial lawyers, when in reality, most were transactional. Therefore the Code didnt address 98% of lawyers. ABA Model Rules of Professional Conduct: Dissatisfaction with the Model Code resulted in the drafting of the Model Rules. The comments to each rule are similar to the ethical considerations of the Model Code. The ABA model rules have no direct impact on lawyers, and are instead given force of law only by adoption in each state. About 42 states have adopted the Model Rules, though there is some variation 6 still have Code & California has its own thing altogether NY Code of Professional Responsibility: Is modeled after the CODE not the Model Rules: NY is a code state, whereby the NY Appellate Courts have more or less adopted the DRs of the Model Code. Still, in many ways the NY Code comes closer and closer to the Model Rules. In 1990s, NY brought in a lot of Model Rules Provisions NY Bar Association trying to make NY a complete Model Rule State
1.2.
Conflict of Law Issues
Dealing with Conflicts of Rules / Code in Multi-Jurisdictional Practice: No two states have same rules. ABA only establishes models, so if you practice in more than one state, which applies?
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First need to determine if there is a True Conflict? Lawyer admitted in three states NY, NJ and UT. Principle place of business is NY. Talking to client in NY & client says he is going to kill cousin in NJ. What does lawyer do with info? NY law Lawyer may report to authorities NJ law Lawyer must report to authorities UT law Lawyer cant report to authorities Kill Cousin In NJ False conflict Can accommodate both rules. Follow stricter rule so Report Alteration Murder in UT Still False Conflict - Do not Report Alteration NJ lawyer and murder in Utah - True conflict NY Code DR 1-105 NY says a lawyer admitted to practice in NY will be held subject to the discipline of NY, regardless of where the lawyers conduct occurred. A Lawyer may be subject to NYs discipline and that of another state's for the same conduct. In a court situation, the rules which are applied are the rules of the state in which the court sits. A NY lawyer practicing in NJ courts must follow the ethical rules of the NJ courts. In a non-court situation, the lawyer must follow disciplinary rules where the lawyer principally practices [which is easy where he is only admitted to practice in one state]. Exception: Predominant effect of Conduct: where the predominant effect of your action is in another state, you must abide by the rules of that state. o If you practice in NY but deal Real Estate in California between two CA citizens, then CA ethical rules will govern. Model Rule 8.5: Pretty much the same as NY A lawyer admitted to practice in this juris is subject to the disciplinary authority of this juris, regardless of where the conduct occurred. A lawyer not admitted in this juris is also subject to the disciplinary authority of this juris if the lawyer provides or offers to provide any legal services in this juris. A lawyer may be subject to two juris for disciplinary conduct. Choice of law in a ct situation same as NY Code Choice of law in a non-ct situations apply the rules of the juris where the lawyers conduct occurred, or if the predominant effect is in different juris, rules of that juris shall be applied. A lawyer is not subject to discipline if his conduct conforms to the juris in which the lawyer reasonably believes the predominant effect of his conduct will occur. Vertical Disconformity: There are also issues of variation between State and Federal Practice in the context of court practice. When in Federal Courts [or state courts], you need to follow the rules for each federal district court. Thus, there can be variation b/w two different districts w/in the same state NY Federal Cts just apply NY Code IL Federal Cts have their own rules
2.Regulation of the Bar.

2.1.
Character and Fitness and other issues of admittance.
Admission Screening Character and Fitness Inquiries: Every lawyer must pass the character and fitness inquiry. The standard which must be met is fitness to practice law. o The Code and MR do not apply to candidates for the Bar. Only applies to members of the bar Code and MR do discuss fitness so applied indirectly by giving Character and Fitness Board idea of what lawyer should be Generally speaking, if you have done anything which would get you disbarred as a practicing attorney, that will likewise prevent you from being admitted. Guidelines/Criteria for Admission: The character and fitness committee cares mainly about: Financial issues, patterns of behavior, and Deceitful Behavior o Model Rule 8.4 [Code 1-102] deals with fitness AS lawyers (as opposed to admission). But the comments give some useful guidelines as to the criteria of the character and fitness inquiry: it is misconduct for a lawyer to Violate Rules, knowingly assist or induct another to do so, or do so through the acts of another Commit criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness Engage in conduct involving fraud, dishonesty, deceit, or misrepresentation Engage in conduct that is prejudicial to the administration of justice State or imply an ability to influence improperly a govt agency or official or achieve results by means that violate the Rules or other law Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
o Commentary provides guidelines for determining fitness: Pattern of activity is bad: one misdemeanor is ok, but doing it 6 or 7 times there
is indication of bad character and creates greater presumption of unfitness. Act is one which is deceitful: breach of trust is what is at issue here in legal profession Fraud is the worst thing. Violent activity is bad as well, but not as bad as deceitful activities.
o Disclosure: The character and fitness inquiry requires an honest answer. Why not just
not bring up any bad things? It works if you dont get caught, but it ups the sentence when you do. Not being candid is viewed as perhaps the biggest evil of all. NY Code DR 1-101 [Model Rule 8.1]: Lawyers and applicants to the bar are subject to discipline for materially false statements, or failure to disclose in admission to the bar. Likewise, a lawyer should not forward the application of someone he knows to be unfit. Under MR 8.1, protected info under 1.6 need not be disclosed
o EC 1-1: Every person should have access to a lawyer of integrity and competence. o EC 1-2: To assure maintenance of high moral/educational standards, lawyers should
affirmatively assist cts in promulgating, enforcing, and improving requirements for admission to the bar. o EC 1-3: a lawyer should report to proper officials all unfavorable info relating to the character or other qualifications of an applicant
o EC 1-6: can be disqualified (permanently or temporarily) for mental/emotional

instability.
o Duty to Report Unfitness to Practice Law: Do you have a duty to report to the
committee when you see someone cheating? Lawyers have duties to report misconduct of other lawyers. However, no such reporting is required as to persons to be admitted. You can report evidence of unfitness, but you dont have to.
Examples of problems faced by applicants o Political or Social Views: Hale - Student rejected after writing article on inferiority of blacks or for having made contributions to white supremacy groups and has white supremacy views. Dont they have freedom of speech? Your 1st amendment rights are tempered with respect to being officers of the court. When youre practicing law you have a duty to uphold the law. The fitness committee says having these kinds of ideas shows a disrespect for the law and fundamental belief opposed to laws, e.g. 1315A. [Its a difficult case] o Antisocial Behavior: In NE, committee excluded someone because received letter from dean he was hostile, threatening, wore sexually explicit clothing (about dean) etc. Hes denied. Can they engage in personality control? There is a definite slippery slope. But they dont consider this personality control: Antisocial results in disrespect of judges, victimization of clients o Financial Responsibility: lawyer with series of financial problems declared bankruptcy it is argued that he doesnt handle his finances well, and one thing a lawyer does is manage finances, or prospective lawyer fails to pay student loans and cannot be admitted. If he acts this way w/out clients, how will he act with clients? o Failure to accept personal responsibility: Seton Hall grad flunked bar twice and sued his law school for inadequate preparation for law practice. Sued for $7 billion. Not admitted. Propensity for bringing frivolous lawsuits Misuse and disrespect of the legal system Failure to take responsibility for own problems o Cheating: Generally shows dishonesty, particularly if it happened in law school [in the context of the law] and its relatively recent (as opposed to cheating in JHS). o Acquittal of previous charge: Former police officer groped 19 year old girl. Charged and acquitted. Now seeks admission and declares issue on application. Standard of review not acquittal. Rejected Ct reversed. Agreed that fact may have happened despite acquittal. However, 8 years ago and no recent incidents o Previous Marijuana misdemeanor? There wouldnt be any lawyersthese kinds of minor offenses arent absolute disqualifiers. It is also, perhaps more importantly, non-deceitful act. But on the other hand it may indicate a drug problem. Even more serious crimes would not result in disqualification, if the candidate would show that they had led a fit life since. o 2L stole from SBA fund. Paid back with interest. When in college, gave painkillers to friends and was arrested, convicted, but wiped off books. Should he disclose? Yes, if he doesnt and they find out will have to go through character/fitness again. Not disbarred but technically disbarred Why disclose expunged record? Never know Are the acts enough to get rejected? Stealing - Recent in law school
Biggest problem with lawyers is stealing from client - Very big negative Cumulative approach though o If only thing than may let you in but if among other things Painkillers - If only thing, then not enough, Long time ago and Not even making money o Plagiarism: Lawyer suspended for failing to say he was kicked out of program for plagiarism. o Need form from every legal employer. Didnt ask for form from DA b/c he left under bad terms. Practicing for 6 years. Was suspended o Duty to update form. Between time of filing with character fitness (before nothing happened) and interview, charged with domestic violence. Failed to update so suspended. o What must be assessed? o Recency o Dishonesty o Misappropriation of finances When rejected, doesnt necessarily mean they can never be a lawyer o Can reapply when shown evidence of rehabilitation. HYPO: College kid member of intl drug cartel. Rejected. Did 6 yrs of service to community and reapplied and was admitted College kid member of intl drug cartel. Rejected. Did 6 yrs of service to community and reapplied and was rejected. This community service was ct mandated. o Can do something so bad not rehabilitatable in eyes of character and fitness review. HYPO: 20 year old shot a cab driver and robs him. Goes to jail and then goes to law school. Character and Fitness rejected. Can never be rehabilitated as far as legal profession Widespread consumer fraud conviction. IL ct said worse than murderers as far as consumer fraud in terms of being a lawyer. o ABA has proposal that for current addicts, that candidates should be admitted conditionally on conditional treatment and lack of relapse Other Admission Criteria: o Residency: You are not required to be a resident of the state in order to be admitted. Some states tried to take the position that you needed to be resident. Claim brought against it under P & I clause (burden on non-residents without justification). Piper Sup Ct struck down as unconstitutional violating privileges and immunities clause NH argued: o non-residents will not follow NH law o non-residents will not make ct appointments o non-residents more accessible Bad case b/c Piper right on border of VT next to court house
o In-state Office Requirements: NY Has an instate office requirement, as does NJ. Here
there is no Privileges and Immunities problem, since they apply to every lawyer, not just
in-state residents. If you want to practice law you need an office in state, resident or not. Why the office requirement? Protectionism of state interests mainly, but the states say it is to be accessible to clients, ground you in the state etc. What does it mean to have an in-state officer If firm has NJ office, obviously no problem E.g. Philadelphia Bar rented office in NJ for all 15,000 members and NJ ct upheld it
2.2.
Imposition of Discipline.
Standards of Conduct: Broad standards of Conduct are set forth in NY Code. The problem is that such application of 1-102 is somewhat subjective and there is much room for interpretation. o NY Code DR 1-102: Lawyers shall not violate disciplinary rules or circumvent disciplinary rules, engage in illegal conduct (honesty, trust or fitness), engage in dishonesty, fraud, deceit, or misrepresentations, engage in conduct prejudicial to justice, unlawfully discriminate in practice of law, or engage in any other conduct which reflects adversely on a lawyers fitness as a lawyer. Punishments Generally: Discipline for attorneys can include - disbarment, suspensions, and other possibilities (probation, censures). Each state has its own disciplinary system governed by the cts. Disciplinary Procedures in NY: NY is typical as to how discipline goes in most states: o The Complaint: The process begins with disciplinary action. There arent prosecutors investigating continually. Instead, there need be a complaint made by a party (usually a client, judge or a lawyer). Grievance committee: The complaint is made to the grievance committee (one in each of four departments in NY). Its comprised of lawyers and investigators whose job it is to determine who should be disciplined. They are reactive, not proactive. Not police officers. Most complaints are weeded out early. They make a preliminary investigation, and if they find there is preliminary merit, they hold a hearing to determine if there really is merit to proceed against the attorney. Grievance committee brings complaint to panel Adversarial proceedings in front of adjudicators If committee and lawyer content with punishment, end of case If committee or lawyer not content, appeal to appellate division o Unlikely, b/c appellate division often worsens punishment. Why? so people dont appeal also de novo review
o Non-Severe Modes of Discipline: there can be Private Sanctions: Letter of caution: For private sanctions, the committee will send out a private
letter of caution. This can be done w/out a hearing as there is not action here. Letter tells lawyer something may be wrong, and if practice continues then action can be brought. Note there is no due process issue because there is no real punishment, and so there is no adversary hearing.
Private reprimand: Nobody knows about it but the committee and lawyer. It is stronger than a letter of caution, but not serious enough to render some real sanction on the attorney. In effect, it is a blot on your record. The lawyer reprimanded can then seek to appeal/vacate the letter. Why? Because its private, but its not really private and people hear about it, and also when you get something like this and get into trouble again, its like having a bad mark on your record and you want it cleaned up if you can.
o More serious discipline: Public Sanctions

Lawyers in these forms of sanctions actually gets adversary hearings with representation present before a grievance committee, which includes practicing lawyers. Then the committee decides if the sanctions are warranted. When they decide the penalty, it then goes to the appellate division to have it enforced. The grievance committee cannot get it enforced on their own. They simply recommend the penalty and then it goes for hearing. 60% of the time the appellate division will say that there is not enough strength to the offense to warrant serious discipline. Penalties Public censure published in law journal Probation finding of wrongdoing & will be monitored for a particular period of time Suspension suspended for a particular period of time. o No need to petition though for reentry to the bar like disbarment Disbarment Revocation of law license for a o Minimum of 7 years and have to petition to regain law license
Conduct that requires serious discipline o Stealing from clients o Serious neglect of client matters o Deceit especially in court proceeding, e.g. to other side or the court o Any felony committed by lawyer results in automatic disbarment o E.g. of non law related activity that can lead to serious discipline Spousal abusers have been disbarred Putting video camera in womens bathroom. No felony conviction still disbarred Lawyers friend asks for help to take yearbook from ex-wifes house before locks changed. Lawyer attacked by cat so microwaved it. Disbarred Addiction Issue: whether a lawyer can be subject to discipline for drug use and psychological problems themselves. The Americans With Disabilities Act doesnt help to protect the lawyer, since this these are disqualifying disabilities and therefore not protected. o Serious drug addictions, bipolar, schizophrenia are all disqualifying factors. Likely to get into trouble law related taking money & neglecting clients o Lawyer interposes addiction defense or mitigation once disciplinary proceeding brought against for misconduct E.g. Lawyer stole money from clients to pay for drug problems: if you had just stolen, youd be suspended for 6 years. But
because he did it because he was paying for his drug habit, they give him 2 years. Some states dont do it. Addicts often put in diversion program where they cannot practice until they get a clean bill of health
Confidentiality in the Disciplinary System: o Possibilities: Consumer Protection vs. Integrity of the Legal Profession: Debate over Confidentiality NJ Oregon Model - Public has the right to know when a complaint is made Complaints from lawyers - Public knowledge of frivolous claims which besmirch lawyers reputations Benefit -Changes balance of power b/w lawyers & clients, Less likely to neglect clients NY Model Private until appellate division imposes discipline Problems Others can participate in the action, Prevent victimization w/potential clients The NY Bar wants to open up the process earlier when the grievance committee makes its recommendation to the appellate division. Other Model Public knowledge when finding merit to proceed Benefits - Prevents public knowledge of frivolous claims Firm Discipline In NY Only: o NY Code DR 1-104: NY has a unique provision which goes beyond simply disciplining the lawyer they discipline the law firm as well. Generally: A law firm must make reasonable efforts to see that all lawyers in the firm conform to the rules, as must supervising attorneys for subordinate attorneys Firms must adequately supervise partners, associates and non-lawyers in their firm, reasonably under the circumstances. Firm is responsible for violations, provided they order, direct or ratify with knowledge the conduct, or if there is a partner or supervisor who knows of such violative conduct Lawyers must comply with DRs even if they are ordered by another not to, but if there is a questionable situation following orders is ok. This has actually been proposed as an amendment to the ABA rules. Rationale: Firms can create cultures and policies in their methods of operation which may be conducive to acts which would need to be disciplined. Its also important where the individual perpetrator cannot be identified discipline the entire firm. However, this requires that the firm knew or didnt take steps to check up on people. After this rule came into effect, firms were concerned and now practices seemed to improve (because they are scared so they check up on their lawyers).
2.3.
The Duty to Report Misconduct.
Self Regulation: NY Code DR 1-103 [Model Rule 8.3]: (both rules essentially the same) imposing a duty to report misconduct. Reporting is not optional, and discipline can be
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imposed for failing to report about the conduct. The duty to report as a violation is therefore distinct from the underlying conduct itself. The following is taken from 8.3: o A lawyer who knows that another lawyer has committed a violation of the Rules that raises substantial question as to his honesty, trustworthiness or fitness shall inform the appropriate professional authority. so the only acts you need to report are acts that demonstrate substantial misconduct that indicates unfitness to practice law. o Applies the same rule to judges o Rule does not require disclosure of info otherwise protected by Rule 1.6 (on confidentiality) or info gained by a lawyer or judge while participating in an approved lawyers assistance program.
o Law is a self regulating profession: Often lawyers are the only ones who would know about the misconduct. The
clients arent paying attention or they would never find out, as above. Likewise, lawyers are officers of the court. Govt lawyers have to report govt official misconduct. But working against duty to report: no one wants to be a rat. Plus, no one is that clean that they could in good faith invoke the duty to report since theyve done shit too. Also reporting your senior partner is problematic, and it gets you a bad name as a firm. Bottom line Not an aggressively enforced obligation: Duty to report exists, but it is under-enforced in terms of discipline. In NY, only 1 lawyer who has been sanctioned for failing to report misconduct of other lawyers. Disciplinary committees under funded so have to prioritize who they go after Sympathy for people who fail to report which could hurt reputation or career
Thresholds for the duty to report: o Severity of the Offense: The Current NY Code and Model Rules both require a substantial misconduct that indicates unfitness to practice law, i.e. seriousness of the infraction when reported would give rise to discipline eliminates a duty to report any trivial or minor infractions. Before 1990, there was a duty to report any and all misconduct. Examples Opposing counsel missed the SOL, which is malpractice. Need he report this? NO Its negligence; but on its own it doesnt indicate unfitness. Could be malpractice but not high priority for disciplinary proceeding unless part of a pattern See another lawyer pulling into handicapped spot and uses a portable pass and fakes a limp. Not serious enough to give rise to discipline Lying to cts & Serious neglect of client matter is serious misconduct to be reported. o Certainty of Guilt: The Rules require KNOWLEDGE of such conduct indicating lawyers unfitness, you cant simply suspect it; must have a clear indication, where lawyer admits it to you Does knowledge mean personal knowledge Personal knowledge definitely sufficient As construed, also means any clear indication even if you didnt personally see it. Cannot recklessly disregard obvious signs of misconduct
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E.g.: You find out a lawyer may have bribed judges, but you dont know. No duty to report b/c no clear indication. E.g. You are lawyer A and someone says lawyer B stole money No duty to report If you ask lawyer B and lawyer B admits to misconduct must report b/c now you have sufficient knowledge BUT, No duty to go out and obtain knowledge of misconduct
Exceptions to the Duty to Report: Client Confidentiality: o *NY Code DR 1-103 [Model Rule 8.3]: Although you have duty to report misconduct, if the info is protected as a confidence (or, in NY, a secret) of client then no duty to report. o Conflict in duties: Obligation to report misconduct; and Reserve clients confidential info, i.e. info learned in representation and disclosure of which would be opposed by client for any reason Under MR 1.6 and Code 4-101 In NY, DR 1-103, lawyer must report unless it is a confidence (attorney client privilege) or secret (anything the client doesnt want exposed) Thus, in NY report unless it hurts your client this pretty much guts the duty to report. No problem when: No client involved Client on other side of the matter and client would want misconduct reported or at least have no objection
Other examples of when the duty to report arises o Employment K b/w Lawyers Wieder Wieder goes to partnership and tells them other lawyer is a liar and Wieder is going to report and that partnership should to. Wieder gets fired and sued for wrongful termination Wieders employment is at will and NY law on whistleblowing does not sink as low as Wieder situation. There has to be a risk of physical danger Wieder though argues in k b/w lawyers, implicit that they will comply with fundamental tenets of code of professional responsibility. Ct bought this argument and found firm breached employment k. Firm will still fire you but say other reasons o Lawyer working in Corporation someone in corp. got fired for exercising duty to report. No Wieder cause of action b/c corporation doesnt have to comply with Code or MR. o Reporting to Firm Management Not sufficient to report to firm management, especially if you know they will not report to disciplinary commission o Waiting to report Capital case in LA. Prosecutor gets a guilty verdict and the death penalty. Shortly thereafter having drinks with another lawyer. Prosecutor admits to suppressing evidence and violated DP rights to obtain wrongful conviction and death sentence. Def on death row. Lawyer waits five years to inform disciplinary proceeding. Disciplinary board says you can wait but not five years o Dean of Law School Dean of students at Columbia, who is a non practicing lawyer, stole $150k from the school. Dean of admission discovered this. Does the Dean of admissions have to report?
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Yes. Doesnt matter they are not practicing. Still members of the Bar, i.e. not a client dependent/ practice dependent rule. Do the students have to report? No. Not subject to reporting requirements b/c not members of the bar Now that students told professor, does professor have duty to report? No. No personal knowledge and no duty to investigate All the teachers know at Columbia. Who has to report? W/mass reporting, may be exception
2.4.
Regulation of Lawyers Outside the Disciplinary System.
2.4.1. Malpractice
Regulation by Malpractice Liability: Another source of lawyer regulation is malpractice suits. The threat can definitely affect a lawyers conduct Standard for malpractice: what a reasonably competent lawyer would do. We ask what reasonable lawyer would do, not what an aggressive or an unethical one would do. This is the bare minimum. o No claim against lawyer for not being as brilliant/good as Paul Weiss. Averageness is the standard.
o Example: Lawyer puts cashiers check in regular mail for $100,000 and it took 1.5 years
to get to client. Was this malpractice, where the injury is the interest on the money? No reasonable lawyer (or person) would send that check by ordinary mail this is malpractice. result every lawyer will always file for change of venue for fear of a malpractice suit.
o In the area of litigation, however, these issues are very difficult b/c overlawyering may o Proximate Cause: Damages are limited to what is proximate, and that is a
reasonableness call. Ex: Tax lawyer failed to do something that resulted in an audit. Pl commits suicide. Atty not liable as his conduct was not the proximate cause of the suicide. and gets their [requisite] local counsel in some state to cooperate on a major case. Plaintiff sends out notices to admit the charges to S&C in NY, but they get lost and S&C never responded, so they automatically lose. Def client sues NYs S&C as well as local counsel. S&C is clearly liable, but local counsel says how are we supposed to be held liable: We dont have a duty until they tell us to do something court agrees. Local Counsel will generally not be liable for malpractice where they are not at fault. If this wasnt the case, local counsel would be forced to overlawyer and work too closely checking up on S&C to cover their ass.
o Malpractice for Local Counsel: Suppose Sullivan and Cromwell represents def in suit,
Examples of Malpractice in Litigation o Transcraft v. Galvin - Plaintiff sued for improperly welded equipment which collapsed on his head: claims brain damage and sues for $28 million. Def hires law firm which defends the case. Plaintiff calls for testimony that welding was faulty. Def calls no expert witnesses to rebut evidence on welding. Plaintiff calls experts to testify to brain damage. Def doesnt call any experts to contest the brain damage. Def defends on
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other grounds, but plaintiff recovers $25 million. Def client then sues the attorney. The pl [formerly def client] claims that attorney: Issue 1: failure to move for change of venue If the rule was that lawyers had to always move for a change of venue whenever there is a slightly better forum that would be inefficient, since every lawyer would be moving for change of venue and other procedural matters every time. Requesting change of venue would have been over-lawyering & we dont want over-lawyering. Need to factor reasonableness, and the court rejects the notion that you would always need to move to a marginally better forum. Issue 2: should have called for expert to say design was safe No malpractice b/c lawyers wanted to bring expert in but all respectable experts said the design was not safe Policy You have to take your case as you find it. you are not required to bring up questionable witnesses at all costs in fear of liability and so aggressively defend your client, particularly when there isnt anything good out there to help you. Issue 3: never sought/ called medical expert and never presented contrary testimony Malpractice! Failed to introduce evidence of damages o Suit was based on brain injury. If the cranial injury was really this severe, a doctor should have confirmed it.
Malpractice in settlement advice: Settlement cases [except where there is immunity granted by statute] rely on reasonableness standards as set forth above (so std = reasonably adequate advice given at the settlement) Can be liable for either telling Client to take a settlement OR for telling a client to reject a settlement. o Advising to ACCEPT undervalued settlement: Zeigelbaum: Wife told by lawyer that if you go to trial in our state, wives can usually get a certain amount. Lawyer essentially advised to take a settlement which was less than would have gotten at trial. Note however that court recoveries need to take into account legal fees Def offers to settle for $250k. Pls lawyer acted $250k settlement. Pl sued for malpractice saying he undersettled b/c he could have got $500k at trial However, expensive to go trial and it is uncertain. the analysis to take the settlement includes a factor of cost effectiveness. Cts have held it is an incorrect comparison w/what you would have received at trial. Other methods where an expert can value a case. What you can get at trial is part of that value but not the only factor. The chances of being liable are ONLY WHEN the settlement is totally out of proportion from the amount of the claim, which can be valued. Ex: Pl is a 7 yr old girl allegedly contracted leukemia after being exposed to a toxic substance. Corp. offered $25k and lawyer accepted. Low range was $600k even w/doubtable science. Later valued at $2.5 million and lawyer held liable for $3 million.
o Advising to REJECT a reasonable settlement: plaintiff is injured crossing street and

insurance company makes offer. Plaintiffs lawyer advises to reject the offer, saying we can surely get more money at trial, but then they get thrown out on summary judgment. So it is just as unreasonable to over-assess the strength of your case and reject as it is to take lower settlement.
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Non-Litigation/Transactional Setting: Attys can be liable for litigation in a non-litigation setting o Standard is also average o Analysis involves the lawyer duty (i.e., scope of representation). If there is a dispute as to the scope of the representation, presumptions are construed against the lawyer. o Examples Failure to file a financing statement Failure to search for liens Failure to learn about environmental hazards Real estate atty failed to check for title encumbrances without, which would have required the owner to repair a damn if it burst. Judge valued the house at $1 million, pl had paid 2 million. Attorney was liable for $1 million. So lawyer should write up the K to make it very clear. Ex: Workers Compensation firm the retainer says, we are workers compensation attorneys and dont do anything else. They represent a client who was injured when a beam fell on his head. The firm does not sue the beammaker, even though in NY (but SOL is 3 years). Pl later learns he could have sued the beam maker. He sues the lawyer LAWYER WAS LIABLE. A reasonable workers compensation lawyer should have a retainer that says they will not take third party actions but will make referrals. Other Examples o E.g. Owner of building in Manhattan. In 1998, consulted lawyer to have property sold to buyer. Lawyer screwed up deal so deal didnt go through. In 2006, client is mad and sued lawyer. What the lawyer did is malpractice. However, now no damages b/c the property value increased Damages have to be discussed in all cases of malpractice o E.g. Pl brings case for malpractice. Lawyer failed to file in statute of limitation. Pl would have never won case though and pl didnt lose anything so no malpractice o E.g. Lawyer gives clients bad tax advice; client gets audited and commits suicide; clients wife brings wrongful death suit against lawyer for giving tax advice that lead to suicide attorney may be liable for back taxes, but not for death. Releases from Malpractice Liability (WAIVER): Obviously, lawyers can obtain releases from liability after the fact this is merely a settlement. But can you get a release from all malpractice claims up front? o NY Code DR 6-102 lawyers cannot get a release in advance of claims [the up front release]. This functions as a consumer protection device. Policy reasons: Encourages attorney negligence and thus removes protections from client Still, it avoids over-lawyering and brings down costs, and the client is getting cheaper services in exchange for the release Fiduciary obligations Dont assume risky behavior when using lawyer unlike riding horses Become a boilerplate agreement with unequal bargaining power Can enter into agreement to settle malpractice claim o Compare Model Rule 1.8: you can get a release up front. But, client can only sign the release after the client has gotten (1) independent representation for the
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Advance Release, or (2) Written advice from independent attorney to settle the malpractice with attorney. [That kind of safeguard means that in reality no one will get these releases (your new lawyer will convince you to use him)]. Hence, this rule isnt all that effective. Argument that it might benefit client No one else will take case Can obtain a cheaper lawyer who doesnt need to increase costs in fear of Needs to be in writing and discussed Potential disciplinary charges could perhaps be brought, regardless of the release, b/c the release is an unethical act in itself??
Contingent Fees in Malpractice Recovery: The court of Appeals in NY mandates that the entire amount of the recovery must be paid by the malpracticing attorney. o E.g. Lawyer takes case on contingency basis. Lawyer committed malpractice and claim was meritorious for $1 million. Lawyer gives check for $666k. Concept of damages is to put person back in position Ct of appeals said no. Lawyer cant profit for wrongful conduct. Also new lawyer will take 1/3 of verdict so pl will end up with $666k Plaintiffs in malpractice suits can only recover what he could have recovered in the initial suit. A note on Attorney Client Privilege in Malpractice suits - where the lawyer is given confidences by the client and then is sued by malpractice All Codes and Rules hold that there is a waiver of confidences the lawyer can use anything the client told him against him This is a big damper on malpractice suits. Malpractice Insurance does not cover intentional conduct or acts that has nothing to do w/professional services. E.g. Preparing a female witness by spanking her this is intentional conduct not covered. o Perverse ways of accomplishing professional services not covered! 2.4.2. Liability to Non-Clients
Third Party Malpractice Recovery: There is clearly malpractice to client, but can lawyer be liable for damages suffered by people not in the suit? o The General Rule is that there can be no liability for malpractice unless the plaintiff had some form of privity with the attorney in question.
Rationale: Loyalty to ones client would be compromised w/o privity May be conflicts of interest if you are forced to account for interests other than your client. The scope of such duties would never be clear: you would never know exactly whose interests you would need to look for. Unlimited third party liability would also drive costs up: lawyers would be afraid of suit and clients may be forced to indemnify their lawyers for risks not even associated with their case. E.g. A client plans to rehabilitate a certain area. Word gets out and 17 non-clients buy property in this area. The attorney screw up and fails to get the necessary
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permits for his client. All 17 people sue the attorney liable? NO. Atty liable only to his client. No privity E.g. Lawyers blows Atlantic yards deal. Lawyer sued by pizza shop owner across from property saying malpractice caused him damages b/c if property built up.
o EXCEPTION: lawyers are liable to non-clients if the lawyers have a relationship with
the party approaching privity essentially where the doctrine of privity would be unjust given the expectations of the parties. This protects lawyers from being liable to entire world but it requires: That lawyer was aware that their work is being used by a particular (not group) party, and some conduct on the part of lawyer indicating that they understand that reliance.
Example: NY COA case by Bank against Dewey Ballantine DB represented shipping line (bank wasnt the client). Bank says they will loan $85 million to the shipping line, but they wanted an opinion letter from DB saying that they have investigated and checked everything and that the docs are legal valid and binding. Turns out though that the doc filed leaves out the last 3 0s, and millions become $85k. Shipping line goes down the tubes, and bank moves to get its millions back, and can only claim thousands. They want to hold DB liable in malpractice for this. DB says even if it is malpractice, were not liable, since you are not our client: we are not in privity with you and therefore cannot be liable. Ct says the relationship between Dewey Ballantine and the Bank is a relationship which approaches privity DB knew this co. was relying on their work product as well as your own client.
2.4.3. Ineffective Assistance of Counsel
Standards and Procedure: Defs have a constitutional right to effective counsel. Obviously, if the def gets off, then there can be no claim for ineffective assistance. However, if def is convicted, there may be a claim. The leading case is Strickland v. Washington. The Strickland test involves 2 requirements for a def to meet to have a successful claim for ineffective assistance: o Lawyer must be shown to be ineffective is what the lawyer did deemed a reasonable strategic decision. Making the wrong decision (or simply losing) is not ineffective if the lawyer can explain the move as one of strategy, and that strategy is deemed remotely reasonable. The test is whether it was a reasonable choice given the alternatives. Deference given to lawyers feeling on the case Only where lawyer has made serious error o Even if it is found that the assistance was ineffective, Def must still show that the ineffectiveness was PREJUDICIAL to his defense.
o Burden of Proof: on the criminal def in the case to show ineffective assistance. Substantial deference is given to the counsel, particularly since appellate ct
which reviews this claim wasnt in trial court, presumably where lawyer knew what he was doing. Generally courts limit recovery really to cases of egregious misconduct.
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o Standard is intentionally hard for a def to meet b/c: (1) if they are easy, everyone
will charge ineffective counsel (concerned about opening the floodgates); (2)we have to give deference to defense counsel b/c need strategy; (3) idea of finality. o Procedurally hard as well: Ineffectiveness claims played out in habeas petitions, in fed dist ct. Who is witness number 1 in hearing? Lawyer being charged w/ineffectiveness so obvious bias When asked about decisionmaking process, they will craft arguments o of people on KY death row represented by disbarred lawyers. However ineffective allegations brought and failed. Therefore, disciplinary proceedings more effective.
Held Effective as Potentially Legitimate Strategy: Usually best strategy given the circumstances o Miller def sexually attacked and murdered victim. Diligent defense counsel gets workup done on psychologist showing def incapable of this kind of violence. Problem with this testimony is def had been convicted of 4 rapes and 3 murders that had been previously excluded. Devastating cross examination. Counsel also said girlfriend loved enough to lie. Defense counsel said he though about that but he obviously couldn't have o Bitch Chain: lawyer representing def on felony. GF of def is an alibi who can place def away. Lawyer while preparing GF says not wear her BITCH gold chain in front of the jury. GF says she wont take it off so lawyer says he is not going to let her testify. Def convicted Ct said not for them to determine how they would have acted at the trial. It was a reasoned decision among alternatives and just because he chose wrong path, not ineffectiveness o Nixon: if evidence at trial was overwhelming against def, it would be strategic at sentencing to say, State is right and def did this very bad thing. makes atty seem more credible, less likely to irritate jury who is going to sentence def o Def is driver w/minor role for various conspirators. At trial the strategy is decided to do nothing. Hes sort of hiding. If he objects and brings witnesses it will bring def to light. This is held to be strategic. o Save him for Science Arguments held valid strategy: John Wayne Gasey: very bad murderer found guilty and at penalty phase, attorneys argument is that we shouldnt execute him we should have studied him for science benefit to find out why he is a monster its called the save him for science argument. The alternative would be argument of mitigating circumstances or throwing yourself on the mercy of the court. Defense says though that if you make the mitigating circumstances argument (assuming you had any to claim to begin with), it would take away from the science argument. Generally however this argument has been held to be effective. o Willis Def charged with murder. W who says he saw it says def used a handgun. No handgun was ever found. No ballistics test introduced. No bullets found. No autopsy done. Test on defs hand showed he had fired a gun that day but def said he shot at range. Def wants to exhume body to do autopsy to show victim wasnt shot w/handgun. Defs counsel decided not to and def found guilty. Risk outweighed benefit. Could show it was a handgun and strengthen govts case. Instead, defs counsel strategy was the best by pointing to absence of evidence b/c govt has burden of proof. Even though def in this case lost, test is reasonable decision among considered alternatives Held Ineffective: Rarely however, conduct rises to the level of ineffective and is clearly not any sort of strategic move.
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o Martin: Defense counsel is substituted into the trial right before the trial. Defense
counsel wants continuance to have time to prepare. Defense counsel believes it was error to not grant the continuance, but you can only challenge this on appeal. So, defense decides not the bring a defense, in order to show just how unprepared he is to prevent weakening his continuance appeal. He doesnt call exculpatory witnesses: he tells jury hes not putting on a case. The court rules this is ineffective counsel. To concede guilt to preserve weak appeal is clearly not strategy. Even though attorney had thought about options, was still ineffective. o Victim shot in thigh and in coma. When awakes from coma and medication, he immediately says def did it. Def didnt call medical expert on effects of coma and medication. Def counsel thought best to leave statement alone. Not good enough Counsel needs to do a legitimate cost benefit analysis o Misunderstanding of the law can never be effective: An atty cant say he was silent because he didnt know the law learn the fucking law. Misunderstanding of the rules of evidence can never be deemed a strategy of any sorts, since your actions, or inactions are not intentional at all, rather they stem from lack of knowledge. This is clearly ineffective. Felony murder def driver in robbery gone wrong. Someone gets shot and def on trial for murder. Def counsel says in argument that it is true that he drove to bank but he never left the car and tells jury that cannot be murder. Ct says that is improper strategy b/c in order to have a proper strategy, you have to know the substantive law.
Ineffectiveness and Duties to Investigate: Decision not to bring up any mitigating evidence is one thing, but can only be a reasonable strategic decision if youve done investigation to actually find out what they are. o The duty to investigate is a question of reasonableness under the circumstances In determining whether to call a witness, concede guilt and go to penalty phase, etc.
Reasonableness of investigation can also depend on what the def tells counsel: ask def if he has an alibi and he says no no need to investigate for an alibi: reasonable investigation includes basing your investigation on what the def tells you. Suppose you ask def if youve ever been convicted and he says yes. But under law he had been expunged. In trial, def says I was convicted on the stand on direct examination. Asking him itself can be effective if you know the prosecution will bring it up. But here the prosecution doesnt know about this conviction because its been expunged from the record. Def claims ineffective assistance for not getting a 302 (list of prior convictions required under all states and federal rules). Def claims this is unreasonable investigation. But ct agrees w/defense atty: if def tells you hes been convicted, you can rely on it. Does this make sense? Not really you should need to check every time especially because def is not expected to tell you the truth: a reasonable lawyer we would think would need to go further but court notes that def will generally underselling their convictions: not oversell them. Note: there would be a duty of the client had simply told his attorney I have never done anything wrong.
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Wiggins case: def was tried for capital murder and at the penalty phase, counsel didnt bring up any mitigating evidence. Instead, he reargued guilt. Said, if we argued mitigating evidence wed lose the power of the residual doubt argument. This is weak b/c jury already found def guilty so apparently had no residual doubt left. Here counsel failed to investigate substantial evidence of defs horrific childhood abuse. It was clear that none of this was ever investigated even though social records were there. Ct reversed the death penalty you cant make strategic decision based on no investigation. This is unreasonable. Burger case: Defense counsel didnt call any witnesses that the def told him about to talk about good character. Ct said it was reasonable b/c the first 2 on the list of 5 witnesses the attorney called refused to testify and said they hope def would die and so he stopped calling the rest on the list. It was reasonable to assume that the other three would resist as well. This was a reasonable investigation
Ineffectiveness and Duties to Comply with Clients Wishes: Lawyer has a duty to consult with the client, but the lawyer has the final say. --- Also in allocation of decision making authority in ACR section
o 9th circuit case: Def has failed to pay taxes and makes counsel raise ridiculous tax
protesting arguments. When questioned by judge what counsel is doing, he says def wanted it. CANNOT be ineffective counsel if you follow defs ridiculously stupid advice. Capra doesnt like this ruling. But the court says you cant have ineffective counsel if the counsel is doing defs bidding: waiver of right to complain if you wanted these ridiculous arguments. Crucial here is showing that counsel urged that this was an unwise course of action Counsel needs to give def informed choices. However, if clients requests a stupid strategy, counsel safe b/c client waived right to argue ineffectiveness.
Prong II: Prejudice of Ineffective Counsel - Def must show that there was a material impact on the result imposed by the ineffectiveness prejudice. The problem here is trying to figure out what would have happened if counsel properly performed. This is a hard task b/c its a speculative inquiry. o Ct will look at how strong the evidence was. If its a close case, there is more likelihood of a retrial. (Note: in Strickland, the ct said that one more character witness wouldnt have helped the mitigating phase given that there was so much aggravating evidence.)
o Some Clear Cut Examples Prejudice Proven.
No investigation at all Murder trial for little dude against big guy. Defense counsel failed to ever argue self defense, and judge asks for instructions from counsel, counsel provides none, so jury was never instructed on self defense. Jury asks if they can acquit on self defense, and judge says no. So jury returns guilt. This is prejudicial, since we know the jury wanted to acquit on self defense.
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o Per se Reversal: Limited exceptions where prejudice will be deemed to exist
per se (w/o looking at record b/c nothing possible besides ineffectiveness): Supreme Court has held some situations tantamount to no counsel at all here prejudice is presumed. Gideon v. Wayneright. If you get no counsel at all we presume prejudice, w/o even looking through record. Here there were so many ways that having counsel would have helped the def. Atty never passed the bar: This is per se prejudicial and get automatic retrial. Layperson is not deemed to be sufficient counsel (its like representing yourself). Plus a fake lawyer doesnt want to draw attention to himself, and therefore is less likely to try to win. Doesnt even matter if non-lawyer was effective Sleeping on the job: Lawyer sleeps through entirety of trial tantamount to no counsel. But the line drawing here is difficult because you can sleep a little bit. Can sleep for 10 minutes or 30 seconds. Alzheimers: Where the day after trial the atty is diagnosed with Alzheimers. Ct said that having a disease is not enough for per se reversal. Need to look at the record for ineffectiveness and prejudice. Shows that automatic reversal w/o record is left for outrageous behavior Systemically Ineffective: Where system is backed up in S.C. and Public defender is totally at a loss for their resources, the court said needs more money into system: until then, there will be a presumption of ineffectiveness in each case. But Prejudice will not be presumed: U.S. v. Chronic: financial crimes with lots of paper and banks. Counsel appointed 28 days before trial, and lawyer is real estate lawyer. Def argues this is tantamount to no counsel and is per se prejudicial. Court disagrees. They say you need to look at record to see if counsel even did anything wrong, and would not presume it. Sleeping for periods of the trial may not be enough to have an automatic ineffective assistance of counsel (depends on degree of sleeping).
Conflicts of interest: Here, you were not ineffective because of negligence or disregard of case, but rather you were ineffective because of loyalty to another interest other than your client. o Proving conflict of interest: You need to show that defense counsel made a decision out of loyalty to someone else or some other interest. In Conflict of interest cases, You need not show ineffectiveness or even prejudice. Simply show ONE decision was made out of loyalty to another interest. However, this is not easy. o More obvious examples: Defense counsel representing more than one client in trial with multiple defs. At closing, argument was made that client 1 drove client 2 into criminal activity: blaming it all on one client. The blamed client has a serious claim for conflict of interest. Counsel trades ones clients interests for an offers by state for the interests of another. Defense counsel represents def but has also represented other people who have conducted similar activity. The risk of conflict is that the previously represented
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person may be a witness in this case, in which case you may have to cross examine a prior client (this is a problem). This may be a potential conflict of interest. Defense counsel has interest in someone who they know really committed the crime. C But more difficult cases arise: 3 people charged with beating a man are all represented by the same attorney. Some evidence indicates all 3 were involved, and some evidence shows that only 2 were involved. They decide to go with one defense which gets one off and the others go to jail. This isnt necessarily a conflict of interest.
Ineffective Assistance on Appeals: You have a right to effective appellate counsel, but only on the first round of appeal. Counsel at higher levels cannot be ineffective since you have no right to counsel in the first place at those levels. o Inadequate brief (rare) o Anders Def has a right to appeal. Counsel says nothing to appeal. Def argues he has right to appeal. Sup ct says there will be times when lawyer see no meritorious claims in appeal but client has right to appeal. Lawyer can submit an Anders brief where counsel says I find nothing to appeal but here are some issues on the record are colorable Compromise b/w lawyer not bringing frivolous claims and clients right to an appeal. This places the burden on the court to see if there is anything on appeal. Problem is those colorable issues maybe should be seriously brought in appeal o So if there are arguments to use then why are you filing an Anders brief: file a real one. And also, how do you file a brief saying your clients case sucks if you have a duty to the client. Capra thinks this is a terrible waste of resources. th 11 Circuit Allows def counsel to bring up claims they would otherwise put in Anders brief and allow them to cite cases, and then dispose of it in unwritten opinion. Not going to make lawyer write def has no claims Problems with Ineffectiveness - Funding o Caps on fees - E.g. $7500 for capital case in South, no fees for investigators or experts
3.The Lawyer-Client Relationship.

3.1.
Rejecting, limiting, and ending the representation.
Fiduciary relationship b/w lawyer and client Whether an attorney client relationship has even formed. Formation is an important issue because of all of the duties the attorney has to his clients. Its the starting point of many duties the atty owes the client, for issues such as confidentiality, malpractice, etc. to arise
o Generally, we look to THE CLIENTS FRAME OF MIND and Ambiguities are construed
against the lawyer, since we can easily provide disclaimers. Whether a relationship is formed is based on the eyes of the reasonable client Generally speaking, if you speak in the most general terms about non specific issues, and say, I am not your lawyer, no relationship will be found
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o Examples E.g. Lawyer at party. Someone approaches him and asks about problem w/
landlord and asks if he has a claim. Lawyer says hell look into it and person should see him. 2 yrs later, SOL has run. Has a relationship been formed? Court says a reasonable client would have inferred that he would investigate the case and get back to her. Atty was liable. If disclaimed, no relationship What was critical here was that they were talking about applying the law to a specific fact situation. There is no attorney client relationship between person and a law student. E.g. lawyer in chat room. Someone asks about incorporation. Lawyer giving specific advice This is trying to resolve a specific legal problem and w/o disclaimer so a relationship has formed E.g. Firm has a website that has an email link. Someone emails a specific legal problem. Lawyer does not respond to the email. Lawyer was found to have formed a relationship What should lawyer do? o Have a disclaimer on website saying no attorney/client relationship formed o Reply saying I am not lawyer E.g. person sent direct email to lawyer and lawyer did not respond Not an attorney client relationship formed
Confidentiality issues of Non-Clients: o E.g. prospective client goes to lawyer. Lawyer disclaims ACP and person starts revealing info about the case. Lawyer turns down case. Can the lawyer now reveal info about the case? Lawyer doesnt have to take on client but still has duty to keep preliminary info confidential. Obligation to take a client? Generally, NO. o E.C. 2-27 urges lawyers not to decline b/c the client is unpopular; but 2-26 says there is no obligation to take a client. o M.R. 1.2 Clients should not be declined just b/c unpopular But note, these are shoulds they are not mandatory. o E.g. Sullivan and Cromwell declined to represent the WTC bombers. Had a reasonable fear that would lose your other clients who would be pissed at the firm for representing them. o E.g. Catholic church says catholic lawyers cant take on divorce cases
o Legal representation should NOT be denied simply because it is controversial.

You have right to reject for moral reasons (affects zealous representation) So no lawyer is disciplined for not taking a client, but at the same time it should not be done lightly. There can be conflicts with your interests and the interests of the client, or financial concerns (S&C above) etc.
o You cannot discriminate your clientele based on race, color, creed, or sex:
govt has taken the position that lawyers are providers of accommodations, and
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accordingly cannot discriminate. Every state has public accommodation laws that prevent discrimination based on race, sex, etc., i.e. the protected classes Divorce Lawyer: Female lawyer specializes in divorce litigation for women who are not wage earner in the family [non-money spouses]. Male comes in and is the non-wage earner. She declines to represent, simply because he is a man, and she says she only represents women. This woman was fined for violating the public accommodation laws. (NOTE: if the man had been monied, she might have had been excused b/c it would have been a moral thing.) But now the problem is that they will just give masked reasons [Dont want black man, just say Im too busy] Query whether a rule that gets lawyers to lie is a good rule. What about not taking rape cases generally: ethically you can do that since that is not really discriminatory, but you may not keep your job if you decline them.
Obligation NOT to take a client? o Defend slave owners, Exxon Valdez, Black man represents KKK, war criminals etc. Note that maybe its good to have a woman for instance in a female discrimination case. o Bottom line: Moral but not ethical choice Nothing in Model Rules of Code that would impose representation: Too subjective and everyone has their own point of view Mandatory Counseling: In some very limited instances lawyers are not permitted to reject counsel: The court may require them to take an appointment. o Ex: Sullivan and Cromwell said there is a moral and financial problem, but the judge had the authority to make them stay on the case [here, the judge made representation optional, but he could have made it mandatory] o Ex: Def in criminal trial for financial misdeeds, fired initial counsel and decided they wanted to go pro se. Trial judge however has the right to appoint standby counsel (someone able to take over if the pro se fucks up). Who better to do this? The initial counsel. Normally this is a paying position, but here the client has money, but he doesnt want to pay, and so he doesnt qualify for CJA. Trial judge appoints them counsel without pay. Judge gets madder at their protest and forces both of them to be standby for all steps of the litigation. They appeal to 3rd circuit claiming: this amounts to involuntary servitude (dead loser argument, they are officers of the court with certain obligations) taking in violation of 5th amendment (they lose that one too) Court concludes they can be forced to appointment compensated or not, but not BOTH lawyers in a two lawyer firm forced to go do it. o Note that all attorneys are subject to involuntary service. However, its rare, and even if it happens the schedule can be played with. Partitioned Representation: Is it possible to say to prospective client I like part of your case and not another? Lawyer has discretion to limit the scope of representation o Model Rule 1.2(c): Lawyer has a right to limit scope of representation so long as client consents after consultation. Requirements Lawyer has to disclose and client must consent Based on what reasonable client expects o Consent and understanding of the limitations of representation are critical Saying I am only a workmans comp can possibly do it, but see above, that may not provide sufficient consent.
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o Other Examples
Suppose client got screwed by his broker. He wants to sue under securities act and wants to get brokers license suspended. The lawyer decides that the second action isnt something he is good at and doesnt want it. This is permissible, but only within limits. A patent lawyer can accept a patent case and deal only with the patent matters. Lawyer will try the case but not the appeal Lawyer will deal with contractual issue but not environmental liability
o You cannot however, limit the scope of the manner of representation: Within
limits! Cannot limit as to cause ineffectiveness Ex: a criminal defense atty cannot say, I will defend you for drug conspiracy case, but I do not enter plea bargain or enter into cooperation agreements [deals]. I have a moral objection to it the lawyer CANNOT do this. You can limit scope, but you cannot limit the scope of the manner of representation. This type of limit severely denies client of effective counsel and is tantamount to ineffective assistance of counsel. Cant waive the duty inherent in the manner of representation like discovery: NJ Case: Woman comes to lawyer to represent her in divorce proceeding: Ill represent you in divorce, but I wont do discovery, its boring and its a pain. This can hurt you, sign this form saying you dont expect me to do discovery, and that the scope of representation is limited. They didnt discover huge hidden assets, and she settled for very small amount. Is this ok? Court says this is the same idea, you cant go to litigation but limit scope and refuse to do discovery. Essentially the lawyer was trying to get a waiver of malpractice up front.
Termination of Attorney Client Relationship: when the lawyer WANTS TO as opposed to HAS to terminate the relationship.
o NY Code 2-110 [Model Rule 1.6] bifurcated inquiry: 1) are you trying to withdraw
from pending litigation matter, or 2) simply a non-litigation representation.
o For pending litigation you cannot withdraw without permission of the court
sometimes they will give it, depending on how far in you are, how it would affect proceedings, how difficult to find new counselbut its all pretty discretionary and up to judge. Note that if client allows you to withdraw, the court will almost always approve. Why would they ever say no even when your client allows and you clearly want to leave: better to have you than nothing, and your conduct and performance is regulated by threat of malpractice. Examples: NJ Cigarette litigation judge changed and was no longer sympathetic to the plaintiff. They wanted to withdraw, but the new judge denied all of the requests to withdraw. E.g. lawyer not allowed to withdraw b/c not getting paid. E.g. client misbehaving and not assisting lawyer with case. Lawyer being sanctioned for that. Lawyer allowed to withdraw representation if it does not materially prejudice the client.
o Non-litigation scenarios: lawyers have an absolute right to terminate 25
Every withdrawal causes some harm, the question becomes is the harm created material. Even if there is harm to the client, you still have the option to withdraw when the client: What kinds of reasons allowed for withdrawal? o Client and attorney dont get along o Client wants attorney to violate ethics laws o Client insists on a frivolous matter o Unreasonably difficult for lawyer to continue Client doesnt pay Attorney wants to retire for personal reasons [affecting lawyers mental or physical health] Examples E.g. Tuesday matter small, Thursday larger matter came in. Can get out of Tuesday matter b/c nothing really happened in two days E.g. Lawyer cant withdraw the night before a deal without reason
Lawyer has no rights to retention. Client can fire at will E.g. client withdraws in middle of contingency case. Lawyer does a lot of work and client wins. In most states, lawyer can elect to take either (1) a quantum meirut recovery, or (2) get ct to decide what percentage is owed to lawyer
3.2.
Allocation of Decisionmaking Authority.
The NY Code EC 7-7 [Model Rules 1.2] on Allocation of Authority: the ultimate objectives of representation is for clients control, but the means are for the lawyers discretion. o MR 1.2 says strategic/means decision about representation are for the lawyer and decisions about the ends are for the client. There has to be discussion for all decisions b/w the clients. If disagreement about means, the lawyer wins. If disagreement about ends, then client decides Questions that come up once usually left for client. Questions that come up multiple times usually left for lawyer, e.g. can I question him this way, give extensions for discovery o o Certain tings ULTIMATE DECISIONS are clearly for the client to decide: These are easy since they all deal with constitutional fundamental rights. decision to testify settle a claim choose a plea invoke the right to trial by jury
o The rest is up to the attorney atty makes decisions regarding the means of the case
. Decisions that affect procedural rights The kinds of arguments to make Whether to cross examine Use a peremptory challenge What if client says dont give any extensions of time. Lawyer says I dont work that way. Client should find new lawyer if he has a problem with it. This is day to day strategy, and not a fundamental issue.
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o E.g. Criminal case Def case is going well. Bailiff sees jurors doing drugs during the
trial. Choice is either mistrial or try case w/o two druggie jurors. Def wants to do mistrial but counsel says thats a bad idea b/c trial is going well and was worried about the two jurors. Def counsel says we want to continue and def says on the record I object. Trial continues and def convicted Who has ethical obligation to make that decision? Same issue in voir dire if def wants to use peremptory challenge and lawyer doesnt Model Rule 1.2 Means (lawyer) vs. Ends (client) o In this case hard to tell whether about means or ends, most likely means though. o Ineffectiveness still waived though even if about means if it is what client wanted after provided with reasoned alternatives, e.g. tax protestor cases to move to suppress the confession because he was tortured to get it. But def doesnt want the defense brought. Def claims this is the kind of claim which can only be brought in a Muslim (not American) court, therefore def objected to bringing the suppression motion here. This makes no sense, but its the clients views. A suppression motion decision is truly in the power of the attorney and so the lawyer can still bring the motion But on the other hand, refusal to bring a motion like this with religious motives may need greater respect, but also he may be saying Id rather plead guilty than bring this objection (especially since he tried to plead guilty but the court wouldnt let him). Trial judge found this was a decision for the lawyer if it has merit as a claim. The client doesnt have the right to control the lawyer with respect to this decision b/c means not ends smoke. Can the lawyer representing him object to this? One can say there is no more ends than this choice and accordingly, its not a means decision. Most attorneys will go along with their clients wishes on this. Are there limitations? Can you not challenge a death sentence? Tough question. You clearly need to tell them all of their rights etc. But is someone who wants this incompetent? This may be a rational choicethe trend is for lawyers to accommodate, but there are some who refuse: Other option: Next Friend process nobody is representing you and I can take over and fight for you, intervene, and prohibit death penalty from being used even if def wants it. Recent case said that if def doesnt want to make a colorable appeal than its the clients decision to die. Client can always go pro se Detainee cant go pro se. State ethics boards said lawyers need to assert some sort of defense of a murder, and that is the best defense. Client doesnt want to go along with that defense. The lawyer gets to decide whether to use this or not this is the means. The
o US v. Bin Laden: Def has arguably been tortured in Pakistan to confess. Defense wants
o Death Penalty Case: Def would rather be executed than deal with prison where he cant
o Guantanamo Detainees dont want to participate b/c they think its a done deal.
o Clients Secrets: Evidence found puts the client in bed with his sister in law at the time
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objective is to get the client off, but the means are the defense you will choose to use. Means objectives here are fuzzy: client may be saying ultimate objective is to protect the interest of third parties. On the other hand, you could argue that its an ultimate decision b/c it would lead to a not guilty verdict w/out defense the client is essentially pleading not guilty. But note: Model Rule 1.2(c) Lawyers should respect the clients interest with respect to third parties. Most lawyers in this situation will save clients secret they need cooperation of client in the case, and they dont want upset him.
o First WTC trial: def that rented the Ryder truck returned to Ryder to get his deposit
back. Defense is that clearly my client was a dupe. He was led by the other guys and didnt know what was up, especially since he went back to get his deposit. Client objected to this defense he didnt want to look stupid, and he didnt want to undermine his comrades. Lawyer went ahead anyway. Is this ok? There are a few ways to see this. Could argue that def has a right to plead guilty, which is essentially what he was doing. It seems that the client should be able to say Id rather go down with friends (what is line between plea and defense choice). On the other hand, its strategic to plead it was the other guys, not me. In actuality, here the atty and client probably had an agreement client didnt want to take the heat from his partners, but by objecting in this way on the record, it the attorney took the heat. This made it easier for the client to get away with using that defense, since it appears as if he had no choice.
Allocation in instances of incompetence of client: Competence affects the allocation of authority: o As to whether to plead insanity: MR 1.14 If client is mentally unstable, the lawyers power ratchet up. Not as bound as they would be in ordinary attorney-client relationship to follow clients wishes. Lawyer obtaining a conservator to make decisions for the clients Doesnt necessarily mean pleading an insanity defense
A competent client has sole control over whether to plead insanity. Normally client gets to plea what he wants [note that even insane plea gets you incarcerated potentially worse than regular]. If he is insane but competent, he can choose not to plea insanity. BUT for the client to have the decision as to insanity plea, even if insane, needs to be competent to stand trial. If you are incompetent to stand trial, you cant decide whether to plea insanity. Unabomber lawyers wanted to plead insanity but not Kozinski. Ct gave decisionmaking authority to lawyers but Kozinski just ended up pleading guilty Can client fire lawyer and proceed pro se and avoid insanity defense? Question of whether they can represent themselves, i.e. competent, is different question than whether they are insane. o e.g. LIRR shooter represented himself Rich woman wants to change will to give all her money to a chauffer (who is a drunk). There are charities and others in her old will. Woman client recently doesnt seem to be all there. Should you draft the will to change it? She may not
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be competent. If its cut and dry not competent, then you dont do it and you can seek guardian etc. But its never that clear. What do you do there? Some states say you have heightened duty to act in clients best interests. The bigger problem is that if you dont do something about it, someone else will. Here the firm wrote the new will, otherwise another firm would have done it. But have to tell the client that the will might be contested.
3.3.
Sexual Relationships Between Lawyers and Clients.
NY Code DR 5-111: you cant demand sex in order to perform legal services. o Lawyer cannot require or demand sex w/client or a third party as a condition of representation. o Lawyer cannot employ coercion, intimidation, or undue influence in entering into sexual relations w/a client.
o In domestic relations matters cannot have sex w/a client during the course of the
lawyers representation of the client. Must wait until representation is over. Why exception for domestic relations case? Domestic relations lawyers can act in predatory manner towards nonmoneyed spouses who are vulnerable There are also issues of imbalance of power in the relationships lawyers may then exploit the situation. There can also be loss of confidences when you are seeing your client outside of professional environment. Becomes evidence in the case that spouse is having sexual relations and atty becomes correspondent in case that predate the initiation of the lawyer-client relationship. Where a lawyer in a firm has sex w/a client but does not participate in the representation, the lawyers in the firm will not be subject to disciplinary action under this rule.
o 5-111 doesnt apply to lawyers and their spouses or to ongoing consensual relationships
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o Most in the NY bar opposed this rule: women attorneys voted unanimously against it.
Why? If you have a rule prohibiting attorneys from sleeping with clients, think how that will impact female attorneys they will have to have sex only with lawyers [and that sucks].
MR 1.8(j) is BROADER than NY rule: A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed b/w them when the client-lawyer relationship commenced. If there is a preexisting sexual relationship, it can continue. That applies to any kind of representation, not just domestic relations. Examples o Example: workers comp lawyer says he needs to do a physical examination of client. Do you need a no-sex rule to deem this bad. No. Court found no problem in disbarring the lawyer for conduct showing unfitness to practice law. o Another one said I wont do this motion tomorrow unless you have sex with me tonight. Thats unfitness
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o Personal injury matter Lawyer and def in case start having sex. Def stops having sex
with lawyer. Lawyer sent retroactive bill b/c he was cutting his fee when they were having sex o Corporation Lawyer representing Corporation. Cant have sex with those with decisionmaking authority such as CEO, CFO, etc., but janitor is probably ok
Lawyer has to wait till end of attorney-client relationship and then have sex o Shouldnt terminate relationship prematurely though just to have sex Opposition counsel not covered by these rules but conflict of interest rules cover this o These rules are concerned with overreaching and bad practice rather than conflict of interest What is sexual relations? o Male attorney had male client and invited him over with attorneys friend. They had a three some. No sexual relations b/c they never crossed swords The Debate over Sex with Client Prohibitions: o Opponents: The rules can be overextended: what if corporate lawyer has sex with someone in the corporation. Thats not the same problem, but the rule may overreach. Also, what is sex? o Proponents: sex clouds judgment, if the relationship ends, there can be problems (payment, lawyer can withdraw, exploitation, loyalties get mixed up, overreaching happens). Also they argue that its just a timing issue: dont do it during attorney client relationship. But thats not an answer. That may itself create a conflict you may want to end the representation as quickly as possible just to get the client into bed.
4.The Lawyer's Duty of Confidentiality.
The Broad Ethical Duty of Confidentiality vs. The Attorney Client Privilege: Attorney client privilege is a courtroom rule of evidence, not a rule of professional responsibility. It means you cant admit privileged info as evidence against a client. But it is part of a broader duty to preserve confidential info which belongs to the client [Confidentiality is broader]. o DOC Broad covers confidences and secrets Disclosure never voluntary but subject to disciplinary rules and ct orders o ACP Narrow only confidential communication b/w lawyer and client Disclosure never even by ct order Confidentiality generally: The duty of confidentiality goes beyond protecting ACP in 2 ways (1) duty of confidentiality applies in all situations [whereas ACP applies only when atty is called to testify], and (2) it applies to a broader range of info [ACP applies only to communications b/w atty & client]
o The Code and the Model Rules describe the scope of the Duty of Confidentiality in the
same way: Rules provide the same duty as the Code, but different exceptions as to when lawyer can disclose
o NY Code DR 4-101: Lawyers must take all steps to protect the attorney client
privilege. But it is also more broad: you have duties to protect both confidences as well as secrets. (lawyer cant reveal them, use them to disadvantage the client, or the advantage of lawyer or a third person) subsection c: a lawyer may reveal a confidence or secret:
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with the consent of the client when permitted under disciplinary rules or required by law or ct order MAY disclose when client intends to commit a crime and the info is necessary to prevent a crime if necessary to establish or collect the lawyers fee or to defend the lawyer or his or her employees against an accusation of wrongful conduct where lawyer believes he has made representations that are being used to further a crime or fraud.
o Model Rules 1.6: A lawyer shall not reveal any info relating to rep of a client w/o
consent. A lawyer may reveal info relating to the representation of a client to the extent the lawyer reasonably believes necessary to: To prevent reasonable certain death or substantial bodily harm To secure legal advice about the lawyers compliance with these Rules To establish a claim or defense on behalf of the lawyer in a controversy b/w the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based up on the conduct n which the client was involved, or to respond to allegations in any proceeding concerning the attys representation of the client To comply w/a court order. than confidences. Secret is any info learned during course of rep which client wouldnt want known. Its info learned in the course of investigation that: o The client doesnt want disclosed o The disclosure of which would be embarrassing o Would likely be detrimental to the Client. o Includes WP, but see below WP, though a secret, can often evade a ct order. Secretes ARE NOT PRIVILEGED Generally, secrets cannot be voluntarily disclosed by the attorney; but, they can be subpoenaed or obtained by other court order. Test is whether it is reasonable whether or not client would want it disclosed client doesnt have to expressly say he doesnt want this disclosed. o E.g. Say you represent Kobe, and Kobes friends write you letters saying that Kobe sexually assaulted the pl. These letters would qualify as secrets. Not protected by privilege b/c not coming from client Protected by ethical duty though to keep secret
o Secrets vs. Confidences: crucial distinction: Secrets includes broader range of info
Confidences only include all info which the client tells you with respect to his case. Confidences provide absolute confidentiality: disclosures which are confidences cannot be obtained even through a subpoena or other court order. Info protected by ACP and the privilege only protects communications b/w the lawyer and the client not b/w the lawyer and third parties.
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o (atty will never have to disclose what is privileged)

E.g. Confession Protected by both privilege and ethical duty of confidentiality
Atty represents client who sold a house, and buyer claims he has a wet basement. Your client says he didnt know about it either. Atty does investigation: 1) previous owner says there is a wet basement and I told your client when he bought it. 2) Then your client tells you it flooded a lot and was wet. Also, 3) a neighbor tells you that it was wet, and he never went down there because he had his extra-marital affairs upstairs with little children. What are the duties: (1) Is not a confidence but is a secret (2) Is a confidence since it came from client. It can never be disclosed, even if ct order. (3) This is a secret, even though it has nothing to do with the representation. You still cannot tell anyone about it: you uncovered it in the course of investigating the case.
4.1. The Attorney-Client Privilege and the Broader Ethical Duty of Confidentiality
Attorney client privilege: is an evidentiary privilege; a rule of evidence that applies only when an attorney is called to testify. You cannot use a clients communicated info in confidence against them in ct. o Narrower than the ethical duty to protect confidentiality o Rationale: Encourage clients to tell all to lawyer, facilitates the full development of facts; encourages people to contact attorneys early on; dont want clients to fear that atty will use it against them. Rests on assumption that client is being truthful. At the same time, clients are not entirely honest with their lawyer, and most attys do not believe their clients. The argument therefore that ACP necessary to protect free flow of info is sort of BS. o The better reasoning is to protect lawyer from being a witness against his client. We want to avoid this conflict of interest. E.g. Murder case. W/o privilege, first client called by pros would be defense counsel asking what client said o The privilege also exists to put a premium on the value of lawyers services: go to accountant or lawyer? Go to lawyer, they provide benefit of confidentiality. o What happens when protected? No ct order can require it to be disclosed Docs need to be put on privileged log Not too detailed to disclose contents but not too vague Defining The Scope of the Attorney Client Privilege [vs. mere secrets]: Both secrets and confidences cannot be willfully disclosed by your attorney. But because only confidences can withstand a subpoena or govt order, the critical inquiry is when the communication is a confidence. If you are invoking the privilege, the party invoking it has the burden to show that the requirements are met: the following are the requirements to create an ACP. In Brief: The client has to be seeking legal advice from the lawyer for the privilege to apply There must be a communication between lawyer and client The communication must be from the client The scope of communication
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The communication must be intended and reasonably anticipated to remain confidential
o The client has to be seeking legal (vs. non legal not vs. illegal) advice from the
lawyer for the privilege to apply. The privilege doesnt cover just anything that the client says to the atty. The communications must involve matters related to law and the client must be seeking the lawyers services as a lawyer. Similarly, courts are sensitive about whether you went to the attorney simply to use him as a mechanism of privilege, as opposed to his use as a genuine legal expert. NOTE: Even if non legal, info should not be volunteered. Disclosure must be ordered E.g. As friend is lawyer. Lawyer asks A whats wrong. A says W found drugs so A killed W. No ACP. Talking as friends not as a lawyer and a client Friend could go to lawyer and say I am asking for legal advice E.g. Corp. in trouble and receives subpoena from grand jury to turn over docs. Lawyer submits docs that are altered. Lawyer says that its privileged in response to how docs altered. Depends on the situation Person pays lawyer to produce these docs to grand jury o person not seeking legal advice, just using lawyer as a messenger o Person trying to though by a privilege and doesnt work Persons pays lawyer to retrieve files and then produce docs o still no lawyerly advice Person says worried about subpoena. Lawyer looks at subpoena to determine which docs are required by subpoena o Strategy requires legal expertise Here, lawyer didnt meet burden of showing 3rd situation was occurring. Although didnt have to volunteer info, since subpoenaed by grand jury, have to give up info. Preparing a tax return not protected by privilege b/c that is something an accountant can do However, if seeking advice about IRS, legal questions are encompassed by privilege Corp. work/business advice sometimes double questions where legal/business, e.g. realty. If motivated by seeking legal advice and on legal matter, than covered by privilege Not everything said though to lawyers in business setting is covered. Depending on facts, but just b/c lawyer is around, e.g. Bausch and Lomb (who hired lawyer just to sit in on in meetings to invoke privilege), not protected If lawyer obtained as lawyer but not doing legal work, than privileged Investigation for corp. mismanagement: E.g. corp. believes there has been improprieties, e.g. Enron, GE management suspects improprieties in govt contracts. Hires law firm to investigate. Lawyers file report to board of directors. Is the report privileged? Argument is lawyers are factual investigators. However, since lawyer is doing it, it is legal work and covered by privilege, e.g. Upjohn. Corp. does not just want to know facts but what provable facts are and what their litigation position would be. Lawyers can filter out crucial facts.
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Political: E.g. Mark Rich, financier pardoned by Clinton. Questions about pardon raised in litigation. Rich had obtained lawyers to help obtain pardon. In trial, lawyers were subpoenaed. Ct held they were not exercising legal advice in conversations up to obtaining pardon. They were engaging in a political process, i.e. lobbying instead. However, conversations re: legal effects of the pardon were protected by the privilege Public Policy: E.g. County of Erie had policy that everyone brought to county jail were strip searched. Emails b/w police commissioner and county attorney about legality of searches and that its bad public policy. Pls argue entitled to all of policy but not legality discussions Since mixed together, presumption that all privileged. Judge also didnt say policy stuff wasnt legal. Judge said clients would want lawyers to talk about public policy in addition to the law United States v. Walters: Walters is a sports agent accused of signing college players to professional contracts (illegal). He claims he waited until they graduated. The grand jury demands he produces copies of all of these contracts with his clients. His lawyer, a specialist in sports law, produces numerous contracts showing they are after the date of graduation, but it turns out they may be fraudulent. They subpoena his attorney to find out what the circumstances were to the contracts. It is clearly a secret, but it needs to be a confidence in order to withstand the subpoena. So the issue is whether players even came to him as an atty. Lawyer here is just a messenger, was used merely as a file clerk and was not used for his expertise: you cant buy privilege from a lawyer to use him as a filer. Rossi v. Blue Cross Blue Shield: Rossis patients were denied coverage because they claimed that Rossi employed unreliable practicing methods. So Rossi called the legal dept. of BCBS to complain. Rossi tells them that he is going to sue them for libel. Whichever lawyer answers his call circulates a memo to BCBS stating that they screwed up and should have covered these patients rather than lie to them and shouldnt call people voodoo doctors unless they know they are. Is this memo covered by privilege? Is it giving business advice or legal advice? If there is any sort of legal advice given, it is covered under the privilege. Court holds the memo is protected by the privilege because: (1) its related to a threatened litigation; (2)this involved a specific threatened litigation; (3) the basic role of the lawyer was as a lawyer he worked in the legal dept and not as a CEO; (4) legal research was not done here, but it is also a factor used by cts. Here there didnt need to be research b/c it was defamation clear and obvious.
o There must be a communication between lawyer and client. Info from non-clients
or other outside sources will not be protected under privilege (though it may be considered a secret). Statements sometimes not made initially to lawyer, e.g. accountants then referred to lawyer, i.e. work product. Are those communications protected by privilege? E.g. US v. Covell Covell in tax trouble. Confers w/accountant and communicates damaging info. Accountant says you need a lawyer. Kovel goes to lawyer Not privileged in this circumstance b/c communication not b/w client and lawyer. Unprivileged statement does not become privileged once you give it to lawyer. Once it goes to lawyer, lawyer should preserve but if subpoenaed lawyer has to give it up
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E.g. What if Covell goes to lawyer first and says we need an accountant. Accountant hired by lawyer. Then info goes back to lawyer Privileged. If non-lawyers necessary to legal representation then communication b/w client and non-lawyer is privileged. o Other e.g. Scientist and environmental lawyer E.g. Law firm hires PR firm to put positive light on litigation. PR firm sits at meetings. Is that privileged? Split b/w privileged and not privileged o Not privileged. Extra-legal and not related to litigation but just to protect rep. o Some cts though expand definition of legal to allow privilege Other e.g. Jury consultant though would be privileged Risk that if you hire consultant who is expert that they will be subject to losing privilege Attorneys were hiring 2 experts, consulting and testifying b/c testifying has no privilege. Possible amendments to rule so that attorneys dont have to hire 2 experts b/c of cost
o Scope of Communication
The privileged evidence must actually be sought for its communicative value. Unabomber govt trying to prove Kozinski typed manifesto sent to NYT. Go to hut and dont find typewriter. Do find though he has dealings with a lawyer about buying property on which hut sat. Lawyer has letters sent by Kozinski and lawyer refused to give them up. o Whether those communications about land sale made to lawyer are privileged? No. Govt not trying to obtain communication. Just comparing typeface to see if it matches the manifesto Privilege only protects communicative content not physical embodiment of communications If he had said in the letter that I like to blow things up, that communication would be privileged Privileged evidence must actually be a communication. If what they want is not a communication at all (other info) its not protected. E.g. Freeman lawyer representing seriously injured person from bus accident. Lawyer sees client on ski slopes. Next time lawyer sees him he has casts again. Lawyer withdraws and defense subpoenas lawyer. Lawyer declares privilege o Not privileged. Not a communication. Lawyer merely saw client doing something o Lawyer cant advertise b/c of broader duty of confidentiality but still has to give up E.g. Lawyer representing a father who is years behind on child support. Ct subpoenaed lawyer to determine where client is now? o Depends on how lawyer knew where client was. If he knows it by communication then doesnt have to disclose b/c fact learned through communication is privileged but if lawyer saw him on street then would have to disclose like Freeman.
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E.g. Defense counsel confers with def in the middle of trial behind closed doors; def beat up defense counsel. At sentencing prosecutor wants to call defense attorney as witness; court says this is not privileged because the act of punching is not a privileged communication, it is more of a fact. Physical evidence given to the attorney is clearly not protected. If you represent a client and they turn over a shirt with blood on it (or a gun), this is obviously a secret, but it is not privileged. o Rationale: If the rule was that when you give it to your attorney they cant get it, then attorneys would become warehouses for critical evidence. So evidence is not protected under privilege. The same goes for pre-existing docs. Incriminating evidence which were created before the attorney client relationship in the form of docs is merely a secret, it is not privileged. E.g. Indiana Jones ride in Disney land. People started having brain seizures shortly after. Design engineers prepared report written that the ride could cause brain seizures. Patients want report and Disney says no b/c Disney sent it to attorney and now privileged. At the time Disney prepared the docs, it was not for the lawyers. o Not privileged. Pre-existed communication does not become privileged once a lawyer obtains it. (otherwise there would be no discovery and all smoking guns would be given to attorneys) o However: docs which constitute communications to the attorney are privileged. If the atty had asked to talk with the engineers, that would be protected. BUT: Distinguish the physical evidence [not protected] from the communicative aspects which accompany it [privileged]. The communication of the act of production is itself privileged, but the item itself (doc or other evidence) is not protectedit is merely a secret. When you turn over a knife to the lawyer, the client is saying something independently of the knife itself: hes admitting it exists. Hes admitting he has custody. Hes also admitting it is relevant to the representation. These aspects of it are all protected by the privilege. o You can use the knife itself at trial as evidence, but not the testimonial aspects of it for instance you may not disclose to the court where you got it from or how its relevant, i.e. that it is the murder weapon
o The communication must be intended and reasonably anticipated to remain
confidential: It needs to be such that no one outside the lawyer unit (lawyers firm, agents etc) is expected to hear/see it. But how protected does it need to be such that you reasonably anticipated confidentiality?
Man calls lawyer and says I killed wife. Operator was listening in (like they used to). Court ruled you dont need to sweep for bugs or expect operators to be listening in: its a test of reasonable confidentiality, not paranoid confidentiality. Email: Most courts dealing with this say this is reasonable anticipation of confidentiality, since you cant have to worry about hackers and govt surveillance of email. Cell phone communications are also ok. There is a reasonable expectation that no one is actually listening. All of these communications can be intercepted, but they dont want us to have to be that paranoid. So they are all privileged.
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Not necessarily not privileged b/c electronic communication E.g. metadata in word o Need to scrub it out of docs you send. Can PDF the document (doesnt necessarily work) Make an RTF which absolutely scrubs out metadata
Duty of Care Examples: Client communicates to lawyer via letter and client throws it out in public trash. Someone picks it up and it gets admitted. Did not reasonably anticipate confidentiality b/c was careless with letter. Cell phone conversation If in private area then privileged but not on public bus Risk of lip reading by police officers is not protected: when you know someone is looking you take a risk, and that is an unreasonable risk. People v. Harris. Def out to dinner with 5 people and tells lawyer I just killed my cousin. Not privileged b/c just told everyone so no reasonable expectation that its confidential.
A Note on Duty to Maximize Prospects for Confidentiality: Even though these potentially intercepted transmissions are privileged, it is the lawyers duty to inform the client of these risks (hacking, interception of cell phone calls etc) to try to minimize the likelihood of such problems: limit cell phone communications and computer communications, and also warn the client of these dangers.
If someone outside the lawyer client unit (including agents and firm etc) can hear the communication, it is of course not privileged. What if that third person is a spouse or family member? Most courts say that unless this person is necessary to further communication between lawyer and client [accountant/translator, or person needed for the case (Covell), but not necessarily a PR firm courts are split on this], their presence undermines the reasonable expectation and therefore the communications will not be privileged.
Exceptions to the Attorney Client Privilege: o The identity of client is not protected as privilege: they are secrets, but they are not a confidence: there are preliminaries of representation which precede the representation itself: name of client and fee. So none of this is privileged b/c it doesnt disclose substance E.g. govt discovers that lawyer was paid counterfeit money: they want to know who was the client. Courts say you need to say: its not protected since it doesnt disclose why you were being represented. Client did not seek advice for counterfeiting.
One exception: If the disclosure of name and fee would disclose why the client sought representation [motive] then this would be protected. E.g. Hit and run case. Lawyer contacts prosecution and says client wants to cut a deal. Pros says who is client? Lawyer says privileged. Under these circumstances, you cannot disclose and it is in fact protected as privilege. By disclosing the name of the client, you are giving away why he sought legal advice.
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o Unlike Shargel where that you went to a lawyer not
privileged, but why you went to lawyer is privileged.
E.g.: IRS requires that if you receive more than $10k in cash, have to disclose from who on Form 8300. Defense lawyers were claiming the name of the client on the form from where the money came from was confidential and should not need be disclosed. Can you say privileged on the line for payee? o In re Shargel Have to give up info b/c not privileged If you know that when you receive over $10k in cash for client and you know that info would not want to disclosed by client. o Cant just take money b/c not a proactive way of protecting client o What can you do? Cant purposely evade laws by saying give $9,999 today & rest tomorrow Lawyer has duty to tell client consequences, i.e. name can be disclosed Attorney must protect client from INADVERTENTLY GIVING UP INFO. If you are going to receive payment from client, you have certain duties to inform them that this
Some codes have imposed obligations on prosecutors before they can access the preliminaries of representation: in states that have it is Rule 3.8: before grand jury is submitted to subpoena, prosecutor needs court order of need: that you really need the info and that its not just a technique to impose a bar between defense attorney and client. Federal prosecutors were claiming Supremacy clause to get out of this (federal law trumps silly state ethics law) Then Congress passed McDade law: federal prosecutors are governed by state ethical laws. So now its federal law. o But it doesnt end the problem: grand jury subpoena are not just subject to ethics its the right of the grand jury to an unimpeded investigation. But courts have held that because of rights of grand jury, they are not held under 3.8.
How does the Attorney Client Privilege get asserted? o Privilege held by client but asserted by lawyer Code 4-104 and MR 1.6: Atty has ethical duty to assert every colorable claim of privilege. MR and Code says assume clients want privilege when you cannot reach them o How to assert the privilege: Seek a protective order; Motion to quash a subpoena o Costs to assert privilege. Who pays? Lawyer may have to cover it if not a client yet. If the lawyer is subpoenaed after the lawyer-client relationship has been terminated, the lawyer doesnt know where the client is. He has to expend a lot of resources to respond. Nevertheless, this is part of the duty to preserve confidences. When does the ACP terminate?
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o The duty to preserve confidentiality clearly survives the A/C relationship. o The privilege after death: Should the privilege survive death? People can still he hurt
by the info. But would people be concerned in life about the possibility of post death disclosure? The rules:
In a civil case, the privilege should survive death. Still have estates that survive them. Privilege ending can economically harm their beneficiaries E.g. Swidler v. Berlin: (Civil Case) Vince Foster goes to lawyer and communicates about scandal in White House. Foster then kills himself. Independent Counsel wants communications w/lawyer. o Privilege survives death Ct concerned about: Reputation Shame of loved ones Criminal impact on others such as loved ones and associates o Ct most concerned with this o But if hes dead then the privilege survives death and the attorney wouldnt need to reveal it, nor could they get by granting him immunity. This rule actually encourages people with a dilemma that is not free from disclosure during life to commit suicide to protect it. Maybe there should be a suicide exception. o Now you know client will commit suicide: do you have a duty to stop them? NY Code DR 4-101(c)(3): If you know that a client is going to commit a crime or fraud , you have discretion {not duty} to disclose to authorities. In other states {NJ} and under Model Rule 1.6, its mandatory {no discretion} when it involves bodily harm. But in a criminal case, the privilege does not survive death. (What case is this based on cause Swidler says no in dissent) Ones concern is that the info can be used against me criminally: dead people arent tried, so it cant be used against you in trial so independent counsel says no privilege in criminal cases after death. But what if the info incriminates someone who is still alive if the privilege would go away after death, you may not communicate it during life.
4.2. o
The Problem of Corporate Employees.
The communication must be from client: Who is the client? [particularly in the corporate context]: Any corporate agent who is required to go to speak to corporate counsel about a matter within the scope of their authority is protected under attorney client privilege. Prior to Upjohn, only those members of a corporations control group were protected by the attorney client privilege.
Upjohn: low level corp. reps directed by board to confess corporate wrongdoings to corp. lawyer. Govt argued that is not privileged b/c they are not part of the client
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Govt said only the control group (board, CEO etc.) are protected by attorney client privilege. If the control group was the only client here, wed never have a flow of info. The upper people would never find anything out about what goes on in lower levels. More importantly, if corp. lawyer had to disclose whatever he found, would be ordered by control group not to find anything and would do shit job. So the control group, if the lower level communications to lawyer are not protected, may choose not to find out. o Lawyer wouldnt have all the necessary information to defend corp. (also info to file SEC disclosures, proxy statements, Sarbanes-Oxley, etc.) b/c control group wouldnt send low-level corp. reps to talk to corp. attorney So the rule protects the lower level as clients subject to attorney client privilege. The risks of non-disclosure are therefore worse than not investigating. BUT: When the corp. agent comes in to talk to lawyer, agent may be under a misconception: there is no personal client relationship as noted above, privilege is limited to info contained within the scope of employment. If you disclose personal secrets, those communications are not protected. You can then give the damaging info (like Exxon Valdez he was drunk) to anyone. Anyone who is told to go to the corporate lawyer and told to talk about a matter within the scope of their employment, that info is privileged, but still the lawyer doesnt represent that person. The person is acting as an agent to the corporation, so its as if the corporation said it to the attorney. Upjohn says within corporate privilege but distinguishes b/w info in corp. privilege and the individual situation of the agent. Corporate lawyer represents the corp. o Therefore, if employee is going to confess to felonies on behalf of the corp. to the attorney and asks if the information will be privileged, the answer is no. However if they dont confess theyll be fired
The result: NY Code DR 5-109 [Model Rule 1.13] Attorneys have duties in these instances to inform the other party (lower level corp. AGENTS) that there is no personal attorney client relationship when their interests differ from that of the Corp. client: these are Corporate Miranda warnings. They are the corporations lawyer, not the agents lawyer. Failure to do so can get you disciplined, disqualified from representing the corp., etc. This clearly encourages lower level corp. agents not to cooperate with the corp. attorney. But then again, in reality, they will get fired if they dont, so there is an incentive to disclose anyway.
Can agent hire corporate attorney for personal attorney-client privilege? No, there is a conflict of interest. If agent accused of wrongdoing, there will be a conflict b/c the corp. will have to cooperate w/ the govt and disclose communications w/agent What happens though if corp. attorney does say though that they can represent? o There would be a privilege b/c client thinks there was an ACP
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E.g. Wilmer Hale represented employees of AOL and AOL. Wilmer Hale said that could represent employees until there was a conflict. Ct said there was no conflict b/c there could have been privilege but there wasnt. Wilmer Hale acted unethically though for watered down corp. Miranda warning.
Hillary Clinton Case: Hillary tried to use the Upjohn principle to protect statements she made in a debriefing with both her attorney and a govt lawyer (white house counsel). Govt takes position that this communication is not privileged since the White house lawyer is not her lawyer, and points to Upjohn. First problem, first lady is not a govt agent. But even if she were a govt agent, Upjohn does not work for a govt context: the role of a govt lawyer is different from corporate lawyer, since they are supposed to disclose any misconduct of govt officials. There is no Upjohn duty for govt lawyers (in fact, they are required to disclose the info).
The Plot thickens: Why Upjohn is false security but the 5th Amendment saves the day - The Court in Upjohn says that the privilege protects communications between client and lawyer, not the substance of underlying info which is communicated. So the govt can always just subpoena the agents who spoke to the lawyers and ask them what happened E.g. agent on stand o Ask what agent told attorney. Privilege! o Ask what agent did in Saudi Arabia on behalf of corp. Have to answer If corp. can do this why do they want to still ask what agent said to attorney? Possibly more truthful when speaking to lawyer Agent can plead the 5th if incriminating
4.3.
Multiple Clients and Info-Pooling.
Attorney Client Privilege in Multiple Client / Attorney Representations: Two attorneys and two clients in criminal case. They all talk together to prepare common defense. Strict view would give us no privilege, since they are communicating outside AC relationship. But if this were the case, then lawyers and clients would never pool info: pooling huge benefit in many instances.
o There is therefore the common interest doctrine: if multiple clients communicate to
multiple lawyers to pursue a common legal interest and it is reasonably anticipated to remain within that multiple AC unit, then it is still privileged. The upside of this is ability to pool info. But the parties must have actually agreed to pursue a common interest before this rule kicks in. Dont give up info to first figure out if you are pursuing common interest. You need to get it established first. Likewise, the second prong is that there need be a common interest to pursue. E.g. codefs (A [Gotti] & B [Bravano]) in drug conspiracy case w/different lawyers who are info-pooling. Govt contacts def B to make deal. B becomes W for pros. o Can B testify as to pooled-info with A?
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No. B does not have a unilateral right to use against A. Only if he sues A, not if he is a witness against A, i.e. only an adversarial proceeding breaks the common interest unit. Nothing prevents B from telling pros what he said, but it a rule of evidence which protects from being admitted or used at trial. Note that B cannot admit into evidence his own statements either, since that would imply what A said. SO bottom line: the whole thing cant be used at trial. E.g. codefendants (A & B & C). A & B entered bank and C drove. A & B entered into common interest agreement and they want C to join. They invite C to their meeting o No privilege at meeting b/c C didnt agree to join. C can use info against A & B. o You dont communicate with people to make an agreement, you can only communicate after the agreement is made. E.g. Upjohn. Corporate attorney says cant be persons attorney. Agent obtains own attorney and enters into a common interest agreement w/corporate attorney o No common interest being pursued b/c of conflict of interest. E.g.: Hilary Clinton was debriefed by her lawyer and a govt lawyer. Court said this is not privileged, since her and the govt does not have a common interest to pursue. BUT there are DOWNSIDES: if this unit breaks up, the info is no longer privileged and then each side can use the communications against one another. Note, though, that the info can only be used in court in a litigation b/w the parties. Break up as per above means the parties eventually sue one another, not that their interests have merely diverged. So the only thing which breaks up the unit is adversarial situations. e.g. antitrust claims So any lawyer in these situations will make strategic decisions: Weighing how beneficial it is to pool info vs. the risks that the unit will break up and the pooled info will be used against you and not be protected. So how do you deal with the later usage problem above? You can contract anything you can contract to not be able to use the info, assuming you can eliminate your own potential use of the info against the other party.
4.4.
Waiver and Crime-Fraud - and Proposed Evidence Rule 502
Waiver of the Attorney Client Privilege: The privilege is to the client. But the lawyer, if implicitly or explicitly authorized to do so, is the one who generally waives the privilege.
o Making a voluntary decision that benefits of disclosure outweigh risks of nondisclosure Unlike a court order which is an involuntary waiver
o Privilege as to communications can be waived if a party themselves brings up

a communication they then need to disclose all relevant info about it.
Corporate Waiver: Attorneys argue that voluntary turning over to govt agent is not voluntary
o ABA Culture of Waiver 42
Death (of corp.) by indictment of corp. makes it involuntary AAG Thompson said can indict corp. b/c they dont turn over privileged info o Congress said this was coercion AAG McNulty revised Thompson memoranda to say in deciding whether to indict, the US Attorney cannot take into account when choosing whether to indict that the corp. refused to provide privileged report, but US attorney can take into account when choosing not to indict that corp. did turn over privileged report o Just using a carrot instead of stick Same with criminal defs and not going to trial o Congress trying to say can not take into consideration at all but then US Attorney will indict for other reason
o There is no such thing as Selective Waiver Forfeiture Doctrine applies if
Waived once. E.g. Corp turns over report on misconduct DOJ and SEC but they want an agreement that this info will remain confidential. Corp. now being sued by SHs for mismanagement and SHs seek production of the report says we waived it to the DOJ and SEC, but not to everyone. Can you selectively waive your privilege? That would open things up to too much gamesmanship. If you waive the privilege as to anyone, its a waiver to everyone. Can you allow waiver for govt but limit to private pls? No. o In states, virtually every juris besides DE does not enforce selective waiver. However, if pls bring action in any place other than DE, selective waiver will not apply (unless choice of law provision) o Some corps. try to get DOJ to enter into a confidentiality agreement. However, that agreement does not create substantive law. It just means DOJ cant give out Why no selective waiver? o If reasons for selective waiver is to disclose to govt, most would disclose anyways (b/c legally required to), so why should they unfairly be protected from private civil liability. o Privilege is intended to protect the atty-client relationship, and selective waiver does nothing to protect that Policy issue there though: if you cant selectively waive, were never going to cooperate with the govt. But every time, the benefit to cooperation will outweigh the risk of full disclosure to anyone. Why would corps. be opposed to selective waiver? o Corps. cant use fear of civil liability as an excuse for non-waiver to govt Congress has enacted legislation in Banking Act where banks can disclose to regulators w/o waiving to private individuals SEC only.
o Sarbanes Oxley Act when corps. give disclosures to SEC, they commit waiver to the
MISTAKEN ACTS: Inadvertent and Negligent Waivers: In general, if mistaken disclosure made by lawyer, and not client, cannot be a waiver b/c waiver is the clients decision to make. However, lawyers are often authorized to determine for the client. Lawyer can be sued for malpractice. Every waiver though does not have to be explicitly authorized by the client. What about mistaken disclosures though?
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Three Schools of Thought in the Federal Courts: Strict Liability/ Death by Disclosure (Minority View/ DC Circuit): Even a mistaken waiver is a waiver of privilege. Otherwise youd use the mistake as an excuse all the time. Defense counsel has to turn over thousands of docs in a week. They turn over 18 thousand docs and three of them should have been privileged. Is that a forfeiture / waiver? It was pure human error. But the court rules that this is a waiver: the privilege should be treated like crown jewels. You should have paid more attention. o Worse still, now: all privileged docs on subject matter of mistakenly disclosed docs, though not already turned over, now have to be disclosed o This likely drives litigation costs up because of efforts in discovery. So query whether this is too harsh a rule
Negligence View as Majority Approach: Some attempt to determine how innocent the disclosure was: was there negligence involved Two questions must be asked How diligent was the lawyer to prevent error? How promptly upon discovering the error did the lawyer try to retrieve the mistakenly disclosed document? o How do you discover mistake was made? E.g. Partner had nervous breakdown during disclosure and checked into Bellevue after. Have duty to inquire post disclosure. If requested for return immediately after then has to be returned E.g. enforcement action brought by SEC. Discovery done in reading room. One lawyer finds doc w/all the holes in SECs case. Protocol was to give docs to paralegal to copy and everyone received. Lawyer who finds doc says wants exception to protocol and asks paralegal to copy now. Paralegal asks SEC lawyer if ok and says fine w/o checking bates number to determine if privileged. When realized, SEC lawyer asked in 15 days. Waiver under negligence test. Exception to protocol should have put lawyer on inquiry If it is innocent, no waiver. If negligent, or careless, then there is a waiver. NY Code DR 4-101 says a lawyer shall not knowingly disclose confidences or secrets. It would appear therefore that mere negligence or mistake would not violate the principle. However, duties to act as a competent representative may be implicated. 4-101 also says lawyer shall take reasonable care to keep his employees from disclosing that info. Waivers must be intentional: Opposite of strict liability, i.e. no liability Limits costs of discovery but gives rise to gamesmanship o E.g. firm has privileged doc. Turns over mistakenly. Day before trial they ask for it back. Move to disqualify witnesses and experts based on doc.
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o Ethics of receiving party is there a duty to return privileged info? Even if
privilege was waived by strict liability, lawyer still may have an ethical duty to return. Waiver of privilege does not waive ethical duties. ABA Opinion: duty to turn it back, b/c of professionalism & reciprocity. But did not cite model rules. Model Rules 4.4 was eventually amended: shall promptly notify the opposing counsel. Then it's up to the court to determine. No duty to turn it back, prohibited until court says give it back. ABA was then abrogated. FRCP Rule 26: must sequester. Meaning do not distribute to others.
o Taking Steps to Get at Confidential Info = Discovery Violations!: Lippin: Lippin (solo) suing Blue Cross (Weil) for insurance matter. Meeting at Weil
to try to settle. Break for lunch and Weil leaves folders. Pl goes back to room and searches through Weils folder and snags smoking gun document and tells lawyer. Lawyer copies it and puts it back. Weil knows something is up and they seek discovery thinking there has been an abuse. Ct dismissed case as a discovery sanction. Pl argues it was a sloppy disclosure by leaving it on table. Ct says no b/c was in manila folder and lawyer recommended it In Lippin, the report was privileged. However, in tobacco case, even where report not privileged and was being suppressed, stealing it was still a discovery violation o Proposed FRE 502 Provides for negligence based rule. (b) Inadvertent disclosure. A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver in a state or federal proceeding if the disclosure is inadvertent and is made in connection with federal litigation or federal administrative proceedings and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B). What is reasonable? o Use software (search for words), efficient means of record collection, in addition to lawyers Parties sometimes enter into agreements about disclosure. (e) Controlling effect of party agreements. An agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement, but not on other parties unless the agreement is incorporated into a court order. Ct would enter an order saying that disclosure in this case does not amount to waiver in other litigation. Way to reduce discovery spending (d) Controlling effect of court orders. A federal court order that the attorney-client privilege or work product is not waived as a result of disclosure in connection with the litigation pending before the court governs all persons or entities in all state or federal proceedings, whether or not they were parties to the matter before the court, if the order incorporates the agreement of the parties before the court.
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Crime / Fraud Exception to Privilege: o W/respect to evidentiary privilege, if client communicates to lawyer about legal matter (originally privileged), but intends to use advice to commit crime or fraud, communication no longer privileged. It has to be in furtherance of a crime rather than when a client simple admits his guilt and seeks advice. In the latter case, its not crime/fraud, i.e. doesnt apply to instances of past misconduct Rationale no social benefit in promoting policy of allowing attys to help clients commit crimes Whether a privilege exists depends on the INTENT of the CLIENT (not the atty) at the time the fraud was perpetrated. Keep in mind that its only the clients intent that counts, so it doesnt matter if the atty was an unwitting accomplice or witness. o Situational Examples When client communicates with lawyer for purposes of perpetrating future crime or fraud this is not privileged. When client wants advice as to whether something they are going to do is legal and it turns out it is not that is privileged. When client knows what they want to do is illegal and goes to lawyer to find out how to do it best without getting caught. Thats not privileged. o Actual Examples: I believe I destroyed some docs and I believe the govt will indict me for that offense. Client has admitted committing crime or fraud. That info is privileged, since it is a communication about a past crime or fraud seeking future legal counsel. But if you are asking lawyer how to destroy ; how to pay off witness not privileged. o NOTE: HOWEVER, ITS STILL SECRET, even though not privileged: Exceptions to the Duty of Confidentiality o If exception, than lawyer can disclose: MR1.6, and Code 4-101 o Exceptions under 1.6: Informed consent by client Atty may disclose confidence to prevent certain death or substantial bodily harm Option to disclose o Discretionary not mandatory o No violation if lawyer does not disclose Doesnt have to do anything w/client just some info you learned E.g. lawyers representing a criminal def. In course of conversations, def says I hope that govt doesnt discover any prior misconduct which was murdering a 7-11 clerk in VA. Lawyer finds out that someone on death row for that crime. o Before this amendment that allowed exception for saving a life, lawyer would breach duty of confidentiality. Lawyers would still disclose so written into MR E.g. what if lawyer founds out someone convicted, and not sentenced to death, but instead convicted for 25 years
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Under 1.6, cant disclose b/c not death or bodily harm. Proposed amendment but probably wont pass b/c defs wont be likely to disclose prior misconduct E.g. lawyer says to client lets meet tonight. Client says no, I have to bomb a warehouse that no one is in. Can you disclose? o Under 1.6, substantial property damage not bodily harm, so no disclosure When Lawyer sued Malpractice Compact w/client that they wouldnt use what is learned in representation is broken b/c lawyer needs to be able to defend himself & needs to use what was learned o Client opens the door, i.e. implied waiver Indicted for representation Can disclose to say was duped by the client Fraud E.g. client defrauding someone and needs legal docs. Lawyer doesnt investigate and writes up docs. Lawyer discovers later the docs have been used for fraud. o Lawyer can disclose. Client has given up duty of confidentiality. o Exception under 4-101 (Note: other than this exception, 4-101 and 1.6 are the same) 4-101(c) - Lawyer has discretion to disclose clients intent to commit a future crime Any future crime can be disclosed E.g. Warehouse bomb in NY can disclose E.g. 7-11 in NY cant disclose b/c no future crime If in disclosing the future, you disclose the past, cant disclose o Not in NY, but yes under MR o
5.The Lawyer's Duty of Loyalty
Conflicts of Interest Generally: Generally, the NY Code DR 500 series and Model Rule 1.7 set forth the rules governing conflicts of interest. o Possible interests that would conflict with a lawyers duty to their clients: Another client with different interests Former client to whom you have duties whose interest conflicts with current client Lawyer has personal interests that conflict with clients best interest
5.1.
Simultaneous Representation of Multiple Clients.
5.1.1.The General Rules.
Simultaneous representation: A common problem is where a lawyer has two clients each relating to the same matter. How can you fully zealously represent the interests of both clients w/conflicting interests? o E.g. Upjohn corp. lawyer representing corp. and agent wanting representation as well from corp. lawyer. Agent has personal interests and corp. has interest in selling out agent conflicting interests.
o Benefits: Cost effective; Avoid adversary matters lawyer wont sue self o Disadvantages: Interests wont be promoted effectively 47
NY Code DR 5-105 [Model Rule 1.7] Two step approach: o Whether there is a likelihood of conflict, i.e. are their interests adverse in any way? Not only looking at present, but also at future o If there are adverse interests, is there informed consent from both parties for representation?
A lawyer cannot take on multiple clients in the same matter if it is likely to create conflicts of interest, i.e. a likelihood of conflict standard. A lawyer shall not continue employment if there is a conflict which develops subsequent to initially taking the case during the course of representation. In either of the above circumstances, you may proceed even with multiple clients whose interests likely conflict, if: you disclose to those clients the risks of multiple representation o Must be thorough. Conflict waiver not enforceable if you didnt get correct informed consent o More likely that waiver by sophisticated corps. will be upheld they give CONSENT. AND a disinterested lawyer would believe that despite the likelihood of conflict, the lawyer can effectively represent all interests and the clients need not obtain independent counsel.
Note however, that often times, the process of obtaining consent itself will often result in the parties retreating to individual representation. This is because you need to tell them exactly what can happen if they are represented by the same lawyer - And the lawyer cant keep the secrets between the two parties in multiple representation: this usually makes clients decide to go and get their own lawyers. o Suppose lawyer is working a common representation with multiple clients: one of the clients wants to write a secret will and cut the other client out. You cannot continue with the representation, since you would need, because of your duties to both clients, you would need to disclose their other clients plans. Additionally, in some situations, however, informed consent is not obtainable. Some conflicts so serious, it is unwaivable. Depends on cost benefit analysis. If clients giving up too much to have single lawyer, not waivable If waiver is achieved through informed consent - If one client tells lawyer something, then lawyer must tell other client. (limited waiver of confidences) o E.g. client has preexisting relationship w/lawyer and wants to bring another party in the lawyer must disclose everything already said by the first client to the new client there cant be a disparity in information between the clients
Common Scenarios and Cases: Divorce cases: Two clients come into an office and they want an amicable divorce. What can the likelihood of conflict be here? Although they dont seem to
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have problems, there is a possibility of a risk of conflict (especially if not now, then in the future). They are adverse parties. The lawyer needs to investigate and disclose to them that there is a potential likelihood of conflict. In every divorce situation, there is a 5-105(a) potential for conflict. In NY cant represent w/o going through conflict risks. Can there be informed consent? o Consent to the conflict can only be obtained where: The parties are amicably divorcing, There is no financial disparity between the parties, i.e. parties on relatively even terms, e.g. not one moneyed spouse and one not There are no children involved. o If conditions not met, clients would not rationally choose to have one lawyer, i.e. a disinterested lawyer would tell you couldnt do it, even with consent.
Conflicts arising during the representation: Suppose Amicable divorce case, parties are equally moneyed, no children and they consent so its ok. But then later you find out that husband was cheating on wife. You now need to withdraw, since there is a serious conflict. Adoption cases representation of both surrogate mother and birth mother. Problem: termination of parental rights in exchange for monetary payment ABA decided the risk of conflict is so grave that a single lawyer cannot represent both surrogate and birth mothers even where there is consent. Unwaivable conflict Where the fund for recovery is limited: E.g. People are playing poker at someones house. A fire starts and several people are injured. One goes to a lawyer to consider a personal injury claim, as does another person who was injured at the house. The lawyer finds that the house had a $10,000 insurance policy, and owner of house has no money. If you have multiple clients whose claims exceed the potential resources, there is an inherent conflict of interest. BUT this is considered a conflict which can be consented to Clients are allowed to weigh the advantage of having only one attorneys fee so that your costs are lower, even though the recovery may likewise be limited. It is thus situation dependent, and not per se prohibited. Where the parties seeking common representation may have claims against one another: E.g. Car accident: driver of car and passenger were injured. Both want to use the same atty But there is a likelihood of conflict: the passenger may want to sue the driver if he was also negligent. An independent lawyer would want to sue both driver of your car and the car who hit you. Courts in NY hold that you cannot represent these people, even with consent: disinterested lawyers would tell you the sacrifice of an entire cause of action is not the same as a little bit of money as per above example. So you cant give that up just to pursue this, and you cant represent both.
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Representing seller and buyer in real estate transactions: Most jurisdictions say that there is a likelihood of conflicting interest in more complex commercial transactions, but for one house closing, one lawyer can represent both since it is not that complex a deal. Disclosing defects in real estate: Suppose seller has a problem with the house and wants to sell it. Lawyer cant represent both seller and buyer in that situation since the buyer would want to know about the problem? But the lawyer in reality can represent both, since seller is required by law regardless to tell buyer. So this is not a problem. Conflicts in Complex Sales: Baldassare Suppose seller wants to sell but only if property not subdivided. Buyer wants to subdivide. Lawyer represents both and writes into K that buyer can subdivide. Telling seller of buyers intent would squash the deal. The deal goes through, and the seller sues: Ct says there was a conflict of interest here the motivation had to be disclosed, so it is different than a single house sale. A disinterested lawyer would know that the chances for conflict in commercial real estate like this are grave so: o in NJ there is a per se rule: no representing both sides in commercial real estate transactions. [NY doesnt have this rule] Conflicts representing multiple parties on the same side: Suppose family wants to divide up family plot in such a manner that you clearly cannot accommodate. There is a non-waivable conflict of interest, even as to clients on the same side of the transaction.
o Alternate Views on Conflicts of Interest: Maybe lawyers shouldnt consider
themselves a lawyer for each client, but rather as a lawyer for the situation to maximize the good for all. Brandeis, who took this view, represented a man w/ 4 sons. Man gave businesses to all of them businesses all interrelated, one not doing well lots of debt w/in family and others. Brandeis recommended to the dad and three of the sons to put 4th son into involuntary bankruptcy and out of business Brandeis said no conflict b/c Im not representing any one client, Im trying to get the best result for the entire situation, i.e. Im representing the situation BUT in reality, the way to solve situations is to represent each interest to the fullest. Youre not god. If you do it, you can be found liable. Brandeis asked who he sends the bill to cant send bill to the situation When you are getting billed you are a client all of them are clients Would have to specify the conflicts to be waived. Usually though, this is not successful.
o Can you waive a conflict that may arise in the future?
5.1.2.The Mediation Alternative
Alternative to Multiple Representation: The Attorney as Mediator: One possible way out of a conflict is to be considered the mediator rather than a lawyer (different from the situational lawyer case):
o You cannot at will convert a situation from advocacy to mediation. Lawyers can
only become mediators to multiple parties at the will and or approval of the client.
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o Model Rule 2.4: There are extensive rules on lawyers mediating disputes: If there is a long standing relationship with one of parties, you shouldnt
do it since it affects impartiality and you know secrets about that long term client. If what appears to be a voluntary mediation is not: parties can often coerce each other into mediation when the other party doesnt want it (happens in divorces a lot). In these instances, the attorney should not serve as mediator.
o Common Conflicts which Preclude Serving as Mediator: If one party is under a material misconception, you likely cannot
mediate the dispute: you cannot be lawyer to both parties and must suggest that they both get counsel. To continue is a farce, but to inform the party of their mistake is a disloyalty to another. Examples include knowledge that one partys claim is time barred, or that property in question in a divorce proceeding is actually common property. What happens if mediation doesnt work out and is now going to trial? Can one party then ask you to be their lawyer? o MR 2.4 no you cant represent them subsequently
5.1.3.Is there a current attorney-client relationship?
Conflicts which arise from Attorneys Suing their own Current Clients: o Where a representation would require you to sue another of your current clients. E.g. law firm represents Port Authority Bus Terminal in slip and fall cases in the bus station. British Airways wants them to represent them in a claim against JFK for a broken plane. JFK run by the port authority. The claims are unrelated, so there isnt much change for info which is shared. BUT there is a huge conflict here: You cannot sue your own [current] client even if the matters are not related. Former client relationships are different, they require that the claims be related.
Rationale: it is a form of disloyalty. The client expects not to see you sue them. HOWEVER: It has been held that this type of conflict can be consented to. But in reality, there is no one who will get that consent from anyone. Note that you cant just drop the client to take a better case where the previous Jesss notes though say that firm can fix this by sending letter to Port Authority terminating relationship
Exception: The Rule does not apply to class actions. Suppose Milberg brings class action against Nasdaq for everyone who was overcharged for transactions [everyone in the world]. They are also bringing action against 3COM. 3COM moves to disqualify Milberg saying they are suing their own clients 3COM is traded on the Nasdaq, and the shareholders who comprise 3COM are clients in the class action. This is not the same attorney client relationship here with a class action so for class actions its not the same thing.
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Rationale: If we disqualified here because anyone in the class was Milberg client, then Milberg would only be able to bring one class action in their existence, which would deter bringing of class actions.
Argue whether they are really your client (existing client or former client): You cannot consider that you may not be billing them for any current matter, since the mere fact that there is no current matter isnt the issue. You can be someones lawyer even if today they do not have anything active.
You can consider how long youve represented them, whether they have indicated they still want you to represent them, - BUT ambiguity in these situations is considered against the client. o Not a former client if client has reasonable belief that they are still firms client
o Parents and subsidiaries of your client do not constitute your clients. Parents
and subsidiaries are separate entities, thus separate clients. Exception: Where 95% of the subsidiarys income comes from the parent
Plaintiffs v. DuPont DuPont wants lawyer to sign an engagement agreement, where lawyer agrees to be DuPonts lawyer to do nothing (not bring actions against them), in order for settlement to go through. Rule 5.6 lawyers shall not enter into an agreement that will restrict his right to practice
5.1.4.Positional Conflicts.
Positional Conflicts: The General rule is that positional conflicts are not conflicts of interest. It would be too hard to make sure all of your clients have the same interests: how would you check for that take a client and see where they stand on every fucking issue out there? o Note this doesnt come up that much since most firms that represent for instance GM dont represent Clean Air Associations. But it does happen NAFTA: some clients could favor it some dont. says we want to sue Citibank, because they are charging ATM fees for non-depositors. They want to get that declared illegal. Is there a conflict: the conflict is not that you are suing your own client, but rather that the position you take will be in conflict with a client that you have. inconsistent positions in litigation in the same jurisdiction. To do so would create a conflict of interest. E.g. cannot represent one client to invalidate a clean air standard, where in a different litigation you are trying to validate it. You would be establishing precedent in the same jurisdiction which would be binding. Firm is bringing lawsuit on behalf of consumer organization. Client claims chemical plant is polluting in violation of EPA standards. Turns on
o Example: Firm represents Fleet Bank. A consumer organization comes into the firm and
o Exception: While positional conflicts are not conflicts of interest you cannot take
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interpretation of EPA regs. If client is right, it will result in retrofitting of that chemical plant and other similarly situated plants. There is a direct impact on your client due to your position on new case. o Positional conflicts will not be regulated. But you cannot argue a legal point one way for one client and then argue the other way for another client
BUT: Using inconsistent defenses is not a conflict of interest, only establishing new precedent is. Night and day arguments are not necessarily positional conflicts. E.g. Two people are involved in a crime, one person is at large. Lawyer represents one (woman). She argues that she was just a dupe of the man, subjugated to the will of the man [Svengali defense]. She gets off. Then man gets caught, hires same lawyer, and defense is reverse Svengali defense the woman had such control over him that he did what she said. Judge notices and disqualifies him for positional conflict. No its not its just strategy. Youre not establishing precedent or anything, youre just arguing the facts in other cases.
Firms can take different positions for different clients even if they are in conflict, but in reality it can result in firm dissention.
5.1.5.Conflict of Interest in Criminal Cases.
Conflicts of Interest in the Criminal Context: o Simultaneous representation of two defs is not per se improper. However, sometimes, there can be a conflict. There are certain situations where common defs may want to share and or shift the blame: you cant represent both if they intend to blame one another to any degree, or even distribute culpability between them.
o Federal Rules of Criminal Procedure Rule 44(c) require the judge the hold a
hearing if there is simultaneous criminal representation to see if there is a conflict: At hearing, judge gets defs before him and interviews def and determines whether there is risk of conflict; client then asked if they want to continue with the shared lawyer Why do we give judges so much discretion? Legitimate concerns in terms of the waiver that occurs in the rule 44 hearing. Judges are concerned def doesnt know what he is doing Judges also concerned that def is being coerced There is a presumption of conflict for simultaneous representation. against the situation (presume a conflict). If there is, they may disqualify counsel. But that rule doesnt handle all conflicts that a counsel may have: waive conflict because they want the lawyer, and want to allow their former counsel to cross examine them. Trial judge said I dont need to accept the waiver, Im disqualifying your lawyer. It is not an abuse of discretion for the court to err on the side of disqualification: def doesnt control ethics of a criminal case the cts interest in controlling ethical activity overrides it.
o Waiver of Conflict - Wheat v. United States: Suppose original clients are willing to
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Therefore you can waive a conflict in criminal trial, but the ct will have the final say. o One of the rationales for this rule is that the court is concerned about coerced waivers (like Mafia forcing client to use their lawyer). Note that the courts evaluation to disqualify is based on the potential for conflict at the beginning of trial: it is how it appears, not how it really turns out. Note that if the court decides to disqualify your counsel you cannot bring a claim for ineffective assistance: While def has right to counsel, they do not have right to absolute counsel of choice. o BUT If you get a conflict warning and waive it, you cannot later bring a claim for ineffective counsel on the basis of that conflict. If disqualified, atty still has a duty to keep clients confidences and cannot use their confidences and secrets against them.
o Some common conflicts:

Where pursuing interests of one client would be adverse to another client. Criminal defense counsel represents two defs tried separately who are involved in same crime. One is more culpable than the other, e.g. one has weaker alibi. This is instant conflict the less culpable defs attorney would normally want to subpoena the more culpable one, but when that happens you would need to advise the more culpable one not to testify hence the conflict. Where attorney is himself a substantive participant in the underlying trial. John Gotti case. Cutler is defense counsel. The govt moves to disqualify Cutler on professional responsibility grounds much of the evidence was taped conversations in which Cutler was a participant. This makes Cutler an unsworn witness who doesnt have to take an oath to give positive testimony. Similarly the Cutler representation itself was considered part of the conspiracy itself: Cutlers representation was also an instrument of the Mafia and evidence in the case. This is a good example of why courts have the final say as to waivers in criminal trials. Gotti (of course) offered to waive all aspects of the code of Professional Responsibility, but the court held a hearing and overruled. Also in Gotti when on trial with Locaccio. Rights to conflict free counsel with respect to L. Ls lawyer takes the stand and recalls meeting w/G w/o Gs lawyer. G threatens Ls lawyer and his family. Is there a conflict? Yes. Interest in self/family preservation. Schwartz case: Arose out of beating of Abner Louima. Volpe is major perpetrator. Beating occurred in bathroom particular precinct in Brooklyn Issue: Was Schwartz part of the beating? Possible defenses:(1) Officer Volpe acted alone so it wasnt a conspiracy.(2) Another officer was involved (so it was a conspiracy) but it wasnt Schwartz. Govt argues Schwartzs lawyer has a conflict he has been retained by PBA (1)Conspiracy looks bad for cops (2) Using the conspiracy defense would be biting the hand it feeds it. Second Circuit found that Schwartz cannot waive the conflict because it would force him to give up a stronger defense for a weaker defense.
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Here, personal interests of the lawyer are forcing him to decide to use weaker defense.
o Conflicted Prosecutors:
Where prosecutors have a personal interest or incentive in the case: Defs prepare false forms against a prosecutor and now the IRS is after a prosecutor thinking he is up to no good. But they realize the fraud. Can the prosecutor bring the case against the defs? One big problem here is that the prosecutor is going to have to be a witness. But the real conflict here is the prosecutors personal interest may be at work here. He wants to get them back for screwing with him. An Oregon prosecutor was disciplined for refusing to do deals with defense lawyers he didnt like. Prosecutors generally would never be permitted to try their family or friends. Prosecutor wrote book on flashy prosecutor going after rapists. Defense counsel moves to disqualify her b/c she might have a financial interest to keep the case in public eye. This is a potential sales device Enron Entire DAs office in TX disqualified themselves b/c too many ties to Enron. Some of them thought they couldn't be objective because they knew someone who lost their job. Others thought they were too involved with the company. Where prosecutors have personal views against or for certain issues in the case: Death Penalty Views: Views against the death penalty are not generally a problem, since the death penalty can never be required to be charged under the 8th amendment: so a prosecutor who refuses to charge cannot create a conflict on its face. o BUT a prosecutor on record who says I will never do it is conflict hes supposed to exercise discretion. o What about opposite problem: one who believes in widespread use of death penalty now prosecutor may try to stretch non-capital cases into death penalty ones, or be blind to issues which would point away from using death penalty. Refusal to prosecute a low level drug case: This would likely be a conflict of interest. But most say I will use discretion later on, which avoids the conflict.
5.2. Conflict Between Clients Interests & Personal or Financial Interests of the Lawyer.
Where attorney has a personal interest in the matter: o NY Code DR 5-104(b) [Model Rule 1.8(d): A lawyer may not obtain media rights to his clients story until the conclusion of the trial. The lawyer may decide to make a media event of the trial as opposed to one more in the interest of the def. In other words, you are making decisions out of loyalty to the media rights, not your client. Wouldnt want plea, would want def to testify even if not in best interest, wouldnt plead insanity etc. This rule is waiveable in California you can do it if you get consent from the client after full warning. Under both the NY Code and the model rules, this provision is not waiveable.
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Where attorney has an interest in seeing the def convicted: Suppose criminal def was charged with a crime and he was the executor of the victims estate. If he gets convicted, he loses his position as executor (and the salary for it). The defense lawyer is the next in line to be the executor thats a conflict since he has a financial interest in seeing the client convicted. OR High profile case where client gets convicted of a few counts of many. In jail, the def finds his lawyer was screwing his wife: this is a conflict he has a personal interest in seeing this guy going to jail. The court ruled however that while he did act unethically, this did not call for a reversal on grounds of conflict. counsel is related to the opposing counsel, both issues of confidentiality and conflict arise. Adams Rib Today, you cannot have spouse/child/parent/sibling as opposing counsel Why cant have spouse/child/parent/sibling on other side w/o consent? o Hard to keep clients confidences in secret o Might soft pedal if it is more important for one party o Too much room for disloyalty to clients interests
o Where defense attorney has a relationship with opposing counsel: where
HOWEVER, NY Code DR 9-101(d) [Model Rule 1.7]: If there is a relationship of parents and children, siblings, and spousal relationships between opposing counsel in a criminal case, there cannot be representation unless: the lawyers conclude this conflict wont be a problem and the client consents with disclosure. Note that while most conflicts are imputed to the firm, relationships between opposing counsel are not imputed to firms. If you work someplace and wife works in another, such a rule would mean these firms couldnt litigate against each other. This wouldnt be workable. However, there was a case recently where small firm was disqualified where husband was DA and wife was one of two member firm. Lawyer who gets invited to interview in opposing counsels firm: Courts have found this to be a conflict interest but in all likelihood it can be waived.
Rules for Conflicts of Interest Apply Firm-Wide: If one lawyer in the firm is representing a client, no lawyer in that firm can sue them. o NY Code DR 5-105 provides for firm-wide disqualification in the event of the above conflicts. Exception: relationship between opposing counsel do not require that conflict be imputed to the firm. Conflicts of Business Transactions between Client and Attorney: o NY Code DR 5-104 if you enter into business transaction with client (broad), you have to go through procedural safeguards: Inform the client of all possible conflicts Inform the client that it may be difficult to be both lawyer and business partner Make sure the business transacted is fair and reasonable
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Suggest that partner of yours seek independent representation (but you only need to suggest) Compare: under Model Rule 1.8 you need to make sure the business is fair and reasonable and give the client reasonable opportunity to seek independent counsel. o E.g. from commentary Boyce client must; lawyer must disclose info for ownership info in another co.
5.3.
Representation Adverse to a Former Client.
Former Client Conflicts: Generally, There is no residual duty of loyalty to former clients. That would be impractical and make life very hard. BUT, the duty of confidences and secrets survives the relationship. A lawyer cannot use the former clients confidences against him in subsequent case. Preserving the privilege to former clients maximizing lawyer services over time . o Therefore, NY Code DR 5-108 [Model Rule 1.9]: You cannot, with respect to former clients, take a matter against them, substantially related to the matter on which you previously represent them. The threshold as to the duty of loyalty therefore is a substantial relationship test Substantial relationship test balances the interest of the former client in protecting secret information, the interest of the lawyer in practicing freely, and the interest of the new client in having counsel of choice. o the court may disqualify you, but you wont get disciplined for it. relationship test.
o Is there a statute of limitations on conflict? Time period factors into the substantial o Defining Substantial Relationship: Rather than require the client to show how the
confidences could possibly be used against them (and in the process disclose them to the court) we use the substantial relationship test: if they are substantially related, the court irrebuttably presumes that confidences can and will be used against the former client. Courts are more sensitive for substantial relationship test where the lawyer in question had a more intimate relationship with the former client. Example: Suppose that in 1990, a lawyer represents a doctor in an adoption proceeding. In the year 2000, an injured patient comes to the lawyer and says I was injured by that doctor and I want to sue. Doctor moves to disqualify the lawyer for former client conflict. Will the lawyer be disqualified? There is no substantial relationship between these two issues. NY Case: in 1990 lawyer represents two spouses in their purchases of Co-op and vacation home. Then there is 10 years later a case of divorce. Here, the confidences that may be used against the former client would be disclosed anyway: the court would force you to disclose all of this info in divorce spouse must be completely forthcoming about his finances. Also house sale 10 yrs ago and has nothing to do w/divorce proceeding
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Example: Suppose lawyer representing inventor on patent application and then later representing a competitor who wants determination whether patent is invalid. Attacking your own work product is as related as can be Example: There is a shipping company, and there is a claim that they have policy of light-loading their boats (they charge clients for more than they are really carrying). Lawyer represents shipping line on particular claim. Then there is a later case of another light loading claim on a different boat. But there is a substantial commonality in both: the plaintiffs in both cases are claiming that they have a policy of lightloading, so if they do it (as the plaintiffs claim it is) then its a policy of doing so. That is a conflict. Example: Suppose two different people in Walmart parking lots in two different states were attacked (2 cases). Lawyer represents Walmart in one, and plaintiff in another. The claim here is that there were insufficient steps for security taken as a policy this works, must be disqualified substantially related. Jack in the Box has a policy about how they cook their meat. Hamburgers are cooked according to policy. There is an e.coli outbreak. Issue is that policy does not cook the hamburgers properly. Lawyer is defending personal injury lawsuits against Jack in the Box. This actions end. Now lawyer wants to bring action for client in another town against Jack in the Box. He claims it was a different town, different burger, different Jack in the Box. The issues is all about the cooking policy, therefore cases are substantially similar. o Lawyer disqualified. Playbook considerations do not satisfy substantial relationship: Lawyer represents a Target in Iowa against a woman who was injured there by stacked TVs. Then there is another personal injury case (about wet floor and getting electrocuted) where the lawyer wants to represent the injured. Although different store policies at issue (one is about stacking and other is about circuits and floor cleanup.) Target claims that you learned about what our tactics our, how we weigh settlements etc. and that is all confidential you will know what arguments to make, what buttons to press. Lawyer not disqualified. If playbook considerations satisfied substantial relationship, you are back to a position that once you represent someone, youd be always disqualified for other lawsuits. What matters is the substantive matters.
BUT Chugach: Lawyer was general counsel for company. Now he wants to sue them for anti-competitive practices. He claims that 2 years ago was the first instance, and he wasnt there 2 years ago. Hes trying to bring an action against former employer/client. Lawyer claims the activity didnt occur until far after he had left so other than playbook considerations. But here there is a likelihood that the lawyer knows about the clients practices which are the substance of the claim. They know far more than just playbook considerations: they know all about the operations of the company. And Plaintiff is represented by a law firm he hurt his back while on his job. Case takes several years to prosecute. He gets settlement. Later plaintiff is
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one property of another person and falls and hurts shoulder. He sues def for improperly maintaining premises. Def retains lawyer who represented plaintiff in the workers comp case. Are these matters substantially related? DC says probably not similar enough o Lawyer knows all about plaintiffs medical history, etc. but this is not enough kind of like the playbook issue o Court says separable body parts
Whether confidences can be used are not the issue, but rather, if the matters are substantially related, we presume that they can be used. Berle: Westway development case (West Side highway). Berle represents environmentalists against Westway project, claiming an impact statement has not properly been made. 10 years later, developers retained Berle to defend against the same environmental groups from an attack on the same project on different grounds. The court holds it is a substantially related matter and disqualifies them from representing the developer where they had previously represented the environmental groups.
But why? There are no confidences: its a purely legal action, no factual issues - there is a good argument that they are not substantially related. The issues are different and there are no confidences, but the court says whether confidences are used are not the issue, but rather, if the matters are substantially related, we presume that they can be used. That presumption is irrebuttable. Note that this type of holding will discourage pro bono work in the future: if pro bono work like this will preclude later high paying work, they wont take the pro bono work.
Westinghouse v. Gulf: Firm represents Gulf in a number of matters, mainly uranium mining claims, drafting leases, title disputes etc. After representation, they want to represent a client who is suing for anticompetitive practices: namely that they were part of a conspiracy with others who were limiting the supply of uranium. Lawyer claims he didnt learn anything about the litigation, but here a critical fact of the new litigation is known to you: how much uranium Gulf knows is in the mines: This is because Gulf will depend we didnt have Uranium and thats why supply was at X. But the lawyer knows how much they had.
o Defining Former Client: When you pursue a common defense, there is a
single unit created: Example Two defs charged with criminal antitrust conspiracy (Wilson and Abraham). One lawyer is representing Wilson, and Abraham has separate lawyer. They pursue a common defense together, and prevail. Then an individual plaintiff Spenser wants to bring a civil antitrust action against Abraham based on the same activity that gave rise to the first criminal action. Spenser wants Wilsons former lawyer to bring the action against Abraham. Abraham moves to disqualify, claiming you are suing a former client in substantially related matter. Its substantially related, and under the rule Wilsons lawyer now has a former client relationship with not only Wilson but Abraham as well.
Solution: To deal with this, at the time you enter into the common interest unit, enter into an agreement waiving former client conflict rules as to the unit.
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BUT Perot Case: When clients enter into a common interest agreement, there is an implicit agreement, knowing you can sue one another, that you can keep you own lawyer in any later suits. You can still each use your own lawyers against one another.
o Practice Specific Conflicts for Former Clients: American Airlines: AA sued by Continental for antitrust violation claiming AA has
cornered the travel computer network (Sabre) and if anyone asks where flights go, the first thing that pops up is American, even if another service is better. Their defense was it was alphabetical. 5 years after the action, AA is being sued by Northwest, for another antitrust claim but here, they claim AA has cornered various airports so that they have tons of gates and other airlines are screwed out of them. Northwest is being represented by AAs former lawyer. In antitrust matters there are discreet issues, particular mindsets, conspiracies, and it all becomes related. They have all the info from the prior conspiracy to prove the new one. So in major antitrust actions you are limited to one client.
o Potential Use of Trade Secrets in Later Litigation: Conflict claims by third
party former clients Example: Suppose Lawyer represents Maritrans for 20 years in labor matters and eventually Maritrans terminates representation. Then lawyer represents competing shipping lines in their labor matters. Maritrans heard about it, and sue to enjoin the representation so Maritrans wasnt being sued, but want to stop the representation. What is the issue here? These are sort of trade secrets that they have as to how to deal with labor forces, and Maritrans is concerned those will be disclosed to other shipping line its highly competitive industry, and M is saying you are using our confidences against us by destroying our competitive edge. But if you disqualify for this, then lawyers could only have one client per industry. But more importantly, you cant represent someone for 20 years and move onto someone else. Ct sides with Maritrans, and enjoins them from representing their competitors in the same industry. So they extend the rule to go beyond merely litigating against former clients, but also representing their competitors. This would mean if you represent a client for a period, then you likely cannot represent a competitor in the same industry. o Firm had to pay Maritrans $ 8million to get them to waive the conflict consentable. Unlike multiple client representations, you can always obtain consent from the former client. But this will likely not happen. In that case, you can pay for it, and thats how it works. This really just creates a market for captive law firms.
o Former Client Consent can Waive Conflict: Former client conflicts are always
What if a lawyer is disqualified under the substantial relationship test? Lawyer is representing on title VII actions and then goes to plaintiffs firm. Lawyer is disqualified against former clients. Lawyer is tainted, does it spread to rest of law firm? See next section!
5.4.
Disqualification of an Entire Firm Because of a Tainted Lawyer. 60
Imputing Conflicts: Where a particular lawyer has a certain conflict, there are certain instances where attorneys associated with the tainted lawyer at his firm will also be disqualified.
o NY DR 5-105(d) [Model Rules 1.9 / 1.10] It doesnt matter how big the firm is,
lawyers in these instances will be disqualified. This is a per se rule, with only a few exceptions (Opposing counsel are related do not disqualify). It doesnt matter how minimal the chance of exchanged info is. Rationale: There is a financial incentive to use confidences of a former client that the lawyer may receive from another lawyer in his firm: the firm wants to make money, and there is no upside to preserving confidences from old client, only money to be made by revealing them. you come up with any formal affiliation, then you are treated as a firm for purposes of firmwide disqualification. BUT Lawyers sharing office space alone is not considered a firm for this rule.
o Defining Firm for Purposes of Imputed Disqualification: The ABA has said that if
o Defining the scope of tainted: Silver: First year represented GM he does nonsense work for them so court
treats it as if he was only tainted because his firm works for them. Then he moves to a firm that is suing GM. The court said he had no confidential info which could present a conflict of interest. He can freely move to another firm, and we dont even need to get to the issue of screening. o Lawyer brings taint of conflict to new firm when he arrives: E.g. Bill represented Chevy in product liability litigation for exploding cars. Now pl asks Bill if he can represent him in case resulting from exploding Chevy. Bill cant represent because of substantial relationship Can Mary in his firm take the case? o No. The taint of one lawyer spreads to the firm A lawyer in NY taints a lawyer in the Beijing office. Overbroad Disqualifications are not further imputed: If your firm is only tainted by imputation (and you didnt really work on the matter in question), the taint does not carry with you when you leave (dont double impute). That lawyer would become unmarketable. E.g. Mary in tax dept of Bills firm and doesnt represent Chevy. While at Bills firm, May obviously cannot sue Chevy. Mary moves to a new firm who sues Chevy. Chevy moves to disqualify Mary No need to screen Mary. Mary in tax dept. Mary was only tainted by imputation. Once she left, taint is gone Chevy on a number of cases, last matter in 05. In 06, he moves to another firm. In 07, pl goes to Bills old firm to represent them against Chevy on related issue. The Firm is still tainted
o What about an indirectly tainted lawyer moving to another firm: Imputed
o Taint of conflict can remain w/ old firm when lawyer leaves: E.g. Bill represents
Exception when taint removed and old firm can take on matter: Solow Stroock negotiating w/lawyer who dealt w/WR Graces regulatory work. Lawyer says will come to Stroock if he come with two associates, and be on a separate wing w/separate filing system and still work w/WR. Lawyer
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left one day. Someone comes in to Stroock and wants to sue WR. WR moves to disqualify o NY court of appeals says that so long as you can show that the taint has truly been removed from the old firm (whole department gone, all lawyers with info gone etc.) then the old firm can in fact sue the client. o Note that usually this wont work, since at least one lawyer who worked on the matter will be left over, disqualifying the old firm. BUT if we extend and apply Silver, if only low level associates are left, they may not be considered tainted when they remain in the firm o Note that generally, the smaller the firm is, the more difficult it will be to accept screening procedures as an out for disqualification.
o Note also that the courts are careful to prevent requests for disqualification when not
motivated out of a genuine concern when they are used strategically. If the tainted firm can make a case that the movant knew about the conflict for a long time but did nothing, it shows that the disqualification request so soon before the case is simply a strategic attempt. The more suspicious it is, the less likely it is to be granted.
Screening Procedures: In certain instances, preventing the lawyer from being involved with attorneys dealing with the conflicting case will prevent firmwide disqualification. Screening procedures are not for situations in which one firm faces a former client conflict.. o Screening ONLY works when: A new lawyer comes to the firm The matter is ongoing when the lawyer moves. If matter comes up later, inference is that lawyer would have already discussed it When implemented on day 1 for new lawyer before the info has had a chance to spread throughout. See LaSalle
o Different Types of Screening Measures:

Physical and geographic separations Block them from having access to any docs, and, The new lawyer shall share in no fee as part of the conflicting matter if partner This removes the financial incentive for lawyers to share confidential info Posted notices, emails to the firm saying this lawyer cannot be talked to about the matter Affidavits filed to the ct saying these are working principles Note: Putting someone in seclusion does not work. Therefore, bigger the firm, the easier it is to screen. Probably wont work in firm smaller than 30
o Code and MR envision screening in one instance Govt lawyers moving to private
practice (need to have a revolving door to entice people marketable on the private side to work in govt) For other screening Otherwise it is an implicit holding by the courts. Hence, there is an incentive to put in place valid screening measures, but they arent necessarily going to work (not codified, just implicit holding). Should screening be allowed? Equitable question
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mobility Why are some cts opposed to screening as a remedy? o Self enforcing no way to know if firm is actually screening
o Screening helps maintain marketability of lawyers by allowing
o Federal Courts: Lawyer was representing client in one manner. He wants to move to
another firm, but they were representing that client and he carries the taint of representing that matter. They put him in an office across the street, and dont give him a share of the fee, so hes ok- the courts accept this as valid screening measures. Federal Courts permit lawyers, even those who have extensive exposure to client confidences, to be screened and prevent disqualification. litigation hasnt started. Then he changes to the plaintiffs firm, and that firm attempts to screen him. His office is on another floor, no access to files etc. COA held that these screening matters cannot be effective with respect to a lawyer who has been tainted in this manner: there is an appearance of impropriety in this matter (whats that? Know it when you see it). Capra says bogus. So in NY, the inquiry is fact based and rather uncertain. NY Court says there are 3 kinds of lawyers who create conflict of interest issue when they move: Lawyer in Silver who is himself tainted by imputation only and has no confidential info himself. That lawyer can freely move to another firm and no screening measures are required. Lawyer has some confidential info having worked on clients matter and is directly himself tainted, but has no significant client confidences, and he can be screened and the new firm need not be disqualified. Lawyer in Kassiis: because of extensiveness of representation and significant client confidences, that lawyer cannot be screened because it would give appearance of impropriety. Capra says this is a dumb opinion, and we dont know what significant client confidences means. Official New York Stance A lawyer w/insignificant confidences can be screened, but one with significant confidences can not be screened Lawyer in fed example could not be screened in NY Note the conflict b/w code and MR prohibiting screening and cts allowing screening Firm is technically violating MR, even though ct denied disqualification order b/c of screening. Why no problem? Firm wont get disciplined for following ct order.
o Compare New York Courts - Kassis: 5th year associates represents def in trial but
6.Fees.
6.1. Setting Legal Fees, Overbilling, and Contingent Fees
The Rules: NY Code DR 2-106 [Model Code 1.5] have rules focusing on fees, but this is not the only kind of limitations imposed on fee structure. Still, the basic rule is: no excessive fees. o MR 1.5 prohibits unreasonable fees; Code prohibits excessive fees.
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o What is excessive Its a totality of circumstances test. They give a laundry list of
circumstances to determine if the fee is [clearly] excessive. The factors are: Experience, reputation and skill of lawyer involved Time or labor required Novelty or difficulty of questions posed Skill required Likelihood that such employment will preclude other employment Fee customarily charged in the locality Amounts involved and results obtained Nature and length of attorney client relationship Time limitations imposed by client Whether the fee is fixed or contingent if there has been a history between attorney and client [lawyer may give a client a break on one matter with an understanding it may be made up later or vice versa]. o Yet the rule only scratches the surface though of the bigger problem: the real question is whether attorneys are deceptive about their fees and the rule against deceptive fees is really broad
Hence the problem is not so much excessive fees per se, but that the lawyer is padding the bill: o Leonna Helmsley was being billed 40 hours a day, which it was eventually discovered (by an auditor) that the bill was being completely padded. Ways in which one may legitimately bill 40 hours in a single day: They may bill in increments where minimum is one hour and they were billing 40 minute long phone calls. There may have been multiple attorneys working on multiple matters. o E.g. Fox Client of Fox was band member of Skynnard. Was receiving royalties for songs he had co-written. Fox wanted not only 1/3 of song royalties which are in dispute, but also 1/3 of performance royalties which were not in dispute. o E.g. lawyer gets fired by client. Client says lawyer letter about alleged malfeasance. Lawyer sends client bill for an hour for reading the letter. Lawyer disciplined o E.g. disciplinary charges filed against lawyer that had merit but dismissed. Lawyer sent client bill. Excessive b/c not representing client but representing himself. o E.g. lawyer sends bill for entire lunch when part of lunch was spent talking about personal life. Excessive o Problem is mainly billing for things you never did. E.g. Late Leonna Helmsely o E.g. billing your secretaries time Excessive Cant bill for someone at your prices when they are not worth it o Bill commuting time. E.g. NY lawyer flying to LA. Bills client 5 hr flight time. If traveling to work for client, then yes o Profiting from non legal services E.g. can you inflate lexis research when you bill the client? Lawyers can only make money off legal services. Cannot be marketers. E.g. Ct of Appeals says cant make money off photocopies. Charging get billed (since A was being billed for travel). No one is any worse off, but:
o Double Billing: youre traveling for client A and you are doing work for client B. Both 64
The ABA prohibits Double Billing. They have ruled that to do so would be excessive and deceptive. In this sense you are not permitted to take advantage of economies of scale. What if you are traveling for three clients: Who do you charge? Economies of scale, by the ABA, have to distributed to the clients not to you So you need to bill 1/3 to each. E.g. firm spends 100s of hrs drawing up complex merger agreement and bills that client. Next client comes in and has same issue and all firm has to do is fill in firm. Cant bill client 2 as if from scratch
Fee Issues Specific to Contingency Fees: o Personal injury lawyer is retained by personal injury client and negotiates a settlement in about 5 minutes. Settlement is for 1.5 million, and the lawyer gets $500,000. Thats $30 million an hour. Is that excessive? Where the lawyer does no work (settlement is already on the table) and all lawyer does is enter into the settlement then the fee is deemed to be excessive. Here ct found it to be excessive. Different though if: Offer not already on the table - In most situations, provided the lawyer has done work of some sort to get the settlement, such a fee in this situation is permitted. o In some respects, the lawyer is simply taking a risk If Johnny Cochran of settling, i.e. Fees attributed to Attorneys Reputation o Client injured, insurance co is screwing around. Client goes to big PI lawyer. Lawyer then calls the insurance company, and now they want to settle right away because of the lawyers reputation. Has he then earned his fee? His particular expertise has coerced the other side into a favorable settlement.
o Contingency Fee Reform and Rationale: There is some talk out there that
contingent fee lawyers are making windfall profits for little work. There are moves in congress to limit contingent fees in both federal and state cases.
Why do we have contingent fees? Contingency Fees are permitted by the Code and the Model Rules - it is considered necessary risks for access to justice. These cases required the lawyers to accept certain risks. Without this, injured parties couldnt get into the courthouse. But there are problems with contingency fees arguments against contingency fees: it puts the lawyers in conflict with the clients interests you have an incentive to get a quick settlement instead of maximizing client's recovery (which may cost more for lawyer and reduce his fees). One way circumvent this is to have the contingent fee increase percentage wise as the amount recovered goes up: this would eliminate conflicts of interest. o What about an hourly fee as solution? It would give lawyers incentive to beef up a bill which isnt necessary inefficiency just to maximize take-home pay. That is unacceptable. it gives rise to frivolous suits: if it were hourly fee it wouldnt be worth money to bring the suit since these people have no money. They claim it
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stirs up litigation which would not otherwise be brought. But perhaps lawyers will not bring frivolous litigation - they will lose those cases and not get any money at all. Research shows contingent fee lawyers do a tremendous amount of screening (7 or 8% are actually filed). It provides the means for coercive settlements: It brings litigation that would be unsuccessful if it went to trial, but wont go to trial b/c defs know the cost of bringing it to trial are great so they settle. So it foments blackmail of defs. This is called a strike suit: without contingent fees it is argued that you wouldnt have a strike suit. o But it is very hard to determine what is a strike suit and what is not. Solutions? Do nothing then poor people are screwed. Give a civil legal aid system: that sucks waste of resources and the lawyers have no incentive to win or lose. And the insurance companies would oppose it entirely there is no one to screen unmeritorious litigation. Bottom Line then: most anti-contingent fee arguments are easily rebutted, and the ABA rules there is no inherent conflict of interest in having contingent fees. So the step now is for contingent fee limitations and reform (some are already enacted in the NY and Model Codes): Fee caps on contingent fees. But only an ascending contingency fee schedule makes sense. If it was descending it would destroy any incentive to get more money.
o Current Limitations on Contingent Fees: Generally, the code permits contingent
fees, but they must be in writing and not excessive. They must be in writing. [DR 2-106] Contingent fees are prohibited in domestic relations matters like divorce cases DR 2-106: lawyers may pit parties against one another just to get more money, even if they have a desire for reconciliation (in which case the lawyer would get 0). But then lawyers were just asking for security interests in property. Banned that. Now lawyers are less accessible than ever for divorcing parties. E.g. nonmoneyed spouse goes to lawyer. Can lawyer take 1/3 of money. o Contingent fees not allowed in divorce cases. Even in cases where no possibility of reconciliation Nonmoneyed spouse can go to ct to get interim order of fees from moneyed spouse
Note that ethics opinions in NY do say that contingent fees for enforcement of child support payments are ok. Doesnt this take bread from the kids mouth? Some is better than none. (2/3s is better than no /3s) E.g. judgment made in favor of nonmoneyed spouse. Can lawyer take that on contingent basis? o Yes b/c no longer a chance of reconciliation. Problem is though that lawyer is cutting into child support. Better than spouse getting some sort of support Contingent fees in paternity actions? Mother wants money from potential father. There is no family unit to be concerned here. So its deemed ok to have contingency fees for paternity actions.
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Contingency fees for criminal trials are Prohibited by DR2-106. E.g. lawyer says if you get acquitted you pay me and if you're found guilty, no pay. You might reject a reasonable plea offer in the interest of going to trial b/c w/plea, lawyer would get nothing. Similar to divorce and strong public policy in favor of plea bargaining. But what about a better way, i.e. a sliding scale: I get money if you get acquitted, and money descending based on how much time jail you spend. That may solve the problem. Lawyers interests and the clients interests would be more aligned. o But DR2-106 doesnt permit that What about forfeiture cases: o E.g. assets tainted by drug activity. Drug kingpin paying attorney out of his own funds by the hour. Govt trying to convict him of criminal forfeiture (all assets go to govt b/c criminal activity taints all assets) if def convicted, then all the fees would have to go to govt so lawyers fee becomes contingent b/c lawyer only paid if acquitted. Payment of the lawyer is contingent on a successful outcome, i.e. an acquittal of the forfeiture charge. Pros sometimes adds forfeiture charges to prevent high profile defense attorney from taking the case. What do defs do? Get legal aid. Sup ct said thats ok. Right to chosen counsel based on being able to afford it How to avoid problem? Dad can pay Hypo: lawyer said to criminal def. My fee is $25 grand, but I will refund $15 is the criminal charges get dismissed. He was brought up on charges of using contingent fee. Is that contingent? Its not. The prohibition doesnt apply. Its not contingent on a successful outcome: he gets some money no matter what: its an hourly fee at one stage of litigation I charge this, at another I charge more. This is ok.
employed in business transactions as well. For instance, Cravath would get tons of money if a merger went through, or very small amount if it did. In this sense they accept more risk and can potentially make more money. Mixed Fees: A lawyers charges a low hourly fee, but if there is a successful transaction, they could get a % of the outcome. This is permissible. E.g. Pls case. Clause that if there is a settlement offer, and client refused it when lawyer recommends it, then lawyers fee moves from contingent to hourly fee. Coerces clients to take settlement and unethical b/c client has autonomy on whether to settle
o Contingency Fees in Transactional Practice: Contingent fees are now being
o Note that often times there are combinations of hourly fees and contingent
fees. In other words, you put some form of X variable into a fee equation. low rate. Is this permissive??
o Value billing - Hourly fee at low rate. If successful outcome, then take % in addition to
o A new trend may be towards flat fees. Clients sometimes consider flat fees
advantageous, since you dont need to look over bills.
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The risk is that your expenses may run over the flat fee and the lawyer then doing less work to compensate. Or the reverse: you spend all this money and the lawyer can do it quickly: wasted pay.
Paying Lawyers Expenses: How do we determine expenses on top of ones fee? o One issue Is whether expenses are taken out of the total payment, or is it out of the amount left after the contingent fee taken out. If you do it the latter, the court may find this to be excessive fee.
o What if the matter results unsuccessfully? Under the NY code the client pays
expenses either way, but under the Model Rules, you can have a lose and pay no expenses situation. NY Code DR 5-103(b) says attorney can pay expenses of a matter only if the client remains ultimately liable. So it seems the attorney must bill the client even if they are unsuccessful. Note that this is contrary to the idea of why you need contingent fees.
BUT the Model Rule on this is different Model Rule 1.8(e) : Lawyer may advance expenses to be recovered contingent on success in the case. Win, you get fee and expenses paid. Lose, you get neither.
o Limiting NY Code 5-103(b): Courts have ruled that if DR 5-103(b) were applicable in
class actions, there would never be class actions since minor parties would have to pay expenses when unsuccessful. So it is counter to policy of class actions, and in reality, DR-5-103 is not enforced in class actions.
Fees in Class Actions: o How do these lawyers get picked to represent classes? Judges pick. o Common Fund Class Action: pool of money goes to the class members as well as to lawyers fees. How much does a firm get when they r lead counsel in a class action? Two methods used: (Auction and Lodestar) o Traditional methods: lawyers jostle for named pls, & lead counsel gets picked by judge in an auction. The question becomes how the lawyer gets paid when there is a settlement or payout.
Auction At the beginning of the class action the judge will take bids from competing firms (which include potential recovery and % of recovery/expenses the firm would take). Takes care of the appt (b/c the lowest bidder wins) and it also takes care of the fees (b/c the bidder is bound by their offer). Problems: Worse attorneys will bid lower - To participate in auction, you will need to be qualified (there are relatively qualified firms that are participating). You get what you pay for - Lowest bidder will be worst lawyer b/c best lawyer cant bid that low b/c they know how expensive it is Winners curse - In a blind auction, almost always will be underbid to get it and then once you win, cant profit Congress has considerate mandating this (but it might raise issues in professional responsibility). LodeStar method: hourly with other factors such as risk involved and complexity considered
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Take the amount of hours the lawyers used and add the successes/failures of the representation. Problems with Lodestar method: o Kind of arbitrary- hard factors for the courts to figure out & courts dont want to have to go through all the expenses- its a drain on the system. Usually appoint a special master o Penalizes more efficient lawyers The lawyers may have incentive to bill many hours (and work extra) to eat away at the common fund: which leaves the class members with nothing. o And whos going object when the lawyer says what he gets: the def no longer cares, since he pays it as the common fund either way there is no adversarial proceeding, no one to object to the amount (unless the plaintiff class members object but not likely).
Percentage of recovery method: Even more arbitrary than lonestar- you ONLY look to how good the recovery was. This works in cases involving monetary recovery and the judge looks at the factors involved in the litigation. The benchmark is usually 20-25%. But a cap is even more of a disincentive. Likewise you would work it so you somehow bill exactly what the cap is.
7.Advising Clients
7.1. Moral Choices, and Advice Consistent with Law and Contrary to Public Policy.
Introduction: In advising a client, two major issues often come up: o 1. What do you do if your client wants an objectionable result, Not necessarily illegal, just bad. What are the lawyers professional responsibilities in that situation? o 2. What are the limits on a lawyer in assisting a client in violating the law. Assisting Clients in Objectionable [but lawful] Conduct: the lawyer believes the result to be objectionable, yet it is perfectly legal to proceed. What do you do? o Common Hypos: Client comes and says I want to change my will and cut my son out of the will why? Found out hes gay. Regardless of personal opinion of the lawyer, it is the money of the parent and the parent is the client. Client comes and says Ive chosen to lease out my rental space to a pornographer. Atty repping a corp that makes childs pjs. Had to do a risk analysis of what would happen if they took the flame retardant out of the pjs (flame retardant not legally required). He did the cost benefit analysis (how much it took the manufacture, how much it took to put in the flame retardant, how much they had to pay out to ppl who got burned). The corp decided that it was financially beneficially to not put in the flame retardant. What do you do? Lawyer represents client in town who wants to shut down a plant and close out the Union working there. It can be done, but the town will die.
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You have to do what the client wants, if you are not comfortable you can always w/drawThere is a rule that allows you to w/draw when there is a failure of a meeting of the minds. In almost every instance, lawyers are permitted to urge or advise the client of your moral opinion or their thought on the social consequences of certain actions. But you must be careful not to disguise your moral opinions and advice as legal advice. o NY Code EC 7-8 and [Model Rule 2.1] both encourage lawyers to engage in moral discussion (not subject to discipline), so long as it is articulated as moral advice, you may not couch the advice as some legal advice or argument. E.g. teenager is pregnant and goes to lawyer and asks if she could get abortion w/o parental consent. Lawyer checks but makes girl watch video about how terrible abortion is. OK under 2.1 example of problem with rules You cannot allow your moral position affect your legal advice or substitute your moral position for your clients position (and act how you deem it is appropriate) o You surely cannot disclose the confidences in a situation of moral dispute. BUT The exception is that you have the discretion to disclose the conflict if the client is committing crime or fraud which would cause harm (bodily). But this is not a crime or fraud. And even though pajamas would cause bodily harm, its not a crime that causes bodily harm. o
E.g.: Congress passed regulations as to disposal of assets before you go into a nursing home. People would evade the law by transferring their assets before the deadline, which was a criminal violation. Congress then repealed the law, and passed a new law saying it is a felony for lawyers to advise old people to dispose of assets to evade the law. This is a gag order that prevents a lawyer from giving legal advice this was struck down and found to violate first amendment rights and was therefore declared invalid. Congress can pass laws, but not one that criminalizes counseling a client to act in a perfectly legal manner. Counseling clients to engage in activity that is potentially illegal: Cannot knowingly assist you client in violating the law. o NY Code DR 7-102(a)(7) [Model Rule 1.2(d)] say you shall not assist client in criminal or fraudulent conduct. Deliberate Ignorance is the standard. But the borderland cases get tricky: Example: Corp. concerns about plant with pollution. Corp. tells lawyer if they put in X amount of anti-pollutant, the amount in river is .75 which is criminal. Anything below .5 is legal, but its not enforced until .8. Lawyer has to just tell them the law at .50. Otherwise knowingly assisting them in breaking the law o Criminal activity is prohibited What if they ask if they enforce? o The fact that they explicitly asked does not make a difference o
Example: E.g. Landlord entering into lease agreement with individual. Landlord wants lawyer to put in waiver that renter knowingly waives the inhabitability requirement Knowingly assisting the client in unenforceable activity. Not prohibited o Unlike a usurious clause (high interest) which is illegal to write Still unethical in duping uninformed renter - Not a problem
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Atty writes a memo to client about what countries dont have an extradition agreement w/ the US. That is still assisting b/c knowledge is still power, so the lawyer helped the client know how to break the law. Loophole lawyering v. criminal lawyering Cant be criminal to counsel a lawyer to do something that is not illegal. Nor is it unethical. If Congress or legislature doesnt close loopholes, then it is ok. That is what lawyers do. Cant cross over the line though. Writing an unenforceable provision in a contract is not against the law (nothing unethical about writing unenforceable provisions). Difference b/t something that is a violation of the law and something that might take advantage of a loophole of the law. Hypo: Rich ppl going into nursing home and under the Medicaid law, 30 days before they went the gvt got their assets (this is a federal felony, called the grandma goes to jail law). Problem was that lawyers were giving the elderly ppl this advice, so the legislature made it illegal. It was overruled b/c you cant criminalize giving advice about legal activities. KPMG case- gave tax shelter advice that then later got rejected by the IRS, KPMG had to pay fines for giving this advice. Attys are now saying it was a loophole, it was a legitimate reasonable dispute over the legality but it wasnt clearly illegal. Lawyers who are working in the loopholes are in gray area that can easily go one way or the other. paid from $ that came from drug activity). No forfeiture count but there is an indictment of the lawyer for money laundering. Deliberately ignored indications that money was drug money and took it as fees They now have to make sure where the money is coming from- Need to vet the funds, you cant just take your clients word for it- need to go personally check out that there is a legal business that the $ is coming from. Seems like a large burden on the atty. client asks what countries have no extradition treaty with the U.S. Capra thinks that doing this is assisting them in committing a crime. Sometimes it depends on how tailored to the facts the questions are to some degree it comes down to what degree you should have known it was for a crime. There are some situations where no one can be that ignorant: if that were true you could always say I didnt know. lawyers are as liable as their superiors it is no defense that you were under orders. Exception: But there is a security blanket for gray areas of ethics: relying on senior partners advice that it is ok is considered a defense.
o E.g. lawyer on white powder bar in Miami is representing drug kingpin (so he is getting
o Counseling Client in a manner which MAY help him commit a crime: What if
o The Nuremberg Defense: Under both the NY Code and Model Rules, subordinate
o Problems specific to the corporate context:

You need not second guess all the business decisions of the corp (business judgment rule). Loyalty to the Corporate Entity NY Code DR 5-109 and Model Rule 1.13: Duty is to the corporation, not the individuals which comprise it. If you know of stuff being done against interests of corporation, you must do something.
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BUT: Both the NY Code and Model Rules make it clear that when someone is engaged in self dealing, your duties are inside the corporation ONLY: your duty is to report up the ladder, but you cannot report to shareholders, authorities etc. But if report all the way up to board and they wont do anything, you must withdraw in these instances.
7.2. Disclosure of Info to Another Party During Negotiations. (Ethical issue w/ respect to negotiations)
Issues in Negotiating on Behalf of your Client: the general rule imposes limits on deceptiveness: we cant affirmatively tell lies. Cant be deceitful, i.e. cant make a puffery statement of explicit fact (4.1 of the MR, Code-1.102)
o Deception Where statement of fact that if interpreted could be true but not intended
that way. Example: Suppose lawyer represents client who died a week ago, and delicate negotiations over property go on. Other side asks how client is doing, and he says hes resting comfortably. Deceptive b/c lawyer would think alive E.g. Bill Clinton there was no sexual relationship. Deceptive resulting in disbarment
o NY Code DR 1-102(a)(4) Prohibits deceit in negotiations, and MR have similar

provision. (4.1)
The limits of the provision: In negotiations, nobody really believes anyone is telling the truth when they are expressing their opinion. The borderline cases depend on the specific circumstances of the situation. Settlement Bluster: in negotiations you can expect some bluster on both sides (i.e. exaggerating, acting, feigning truths, etc.) Issue: What is the line b/t actual deception and settlement bluster?
Engaging in Illegal Activity o Nurses working w/out contract went to lawyer. He advised them to engage in a workstoppage, but this is against NY statutes. The lawyer was indicted Ethics of Negotiation o Statements that are actively deceptive or would be taken as deceptive vs. allowing other side to wallow in their own assumptions o Generally acceptable negotiation moves: Inflating claims, overstating the seriousness of your position No one believes you are serious. All of the following are satisfactory negotiation tactics: Labor union negotiations where union lawyer says if you demand this is part of the agreement, we will strike forever. That wasnt true (they werent going to strike) - He was just blowing smoke. Or sometimes lawyers will say a provision is unacceptable, Im walking out. Lawyers often says my client wont take a penny less than X, when he really will. Lawyer says a claim is worth far more than he knows it is. Trying to sell rights, knowing they are worth far less than you are representing they are.
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Example: Lawyer represents gay rights group who has booked convention in a D.C. hotel. The hotel finds out they are gay, and terminates the agreement (breach of contract). The gay rights group hires lawyer, hotel admits they terminated in violation of certain laws, and wants to settle. The lawyer is told by his client that $10,000 would be a good settlement. Hotel offers $50,000, and lawyer says I cant settle at that figure, Ill get back to you. Pretends call, comes back, says $60,000 would be ok. They give $60,000. Lawyer also knows that the group has a new hotel, but represents that they havent gotten a new hotel yet to have their convention (mitigation of damages). The misrepresentations as to the settlement they would accept are ok: this is the essence of bargaining. Likewise, the misrepresentation as to whether they found a new hotel is probably ok as well who knows if the new hotel would kick them out as well. These statements are all considered not to be deceptive. a specific day where illegal payments were discussed. Lawyer says no, he wasnt. But it turns out he was at such a meeting, but the meeting itself was on a different day. Capra thinks you should be able to answer no b/c of bad question
o BUT Example: Lawyer in negotiations was asked whether his client was at a meeting on
Hypo: Burglar holding hostages asks to speak to the public defender. The DA picks up the phone and says I am the public defender and convinces the burglar to let the hostages go. Charges were later brought against him. The CO S. Ct. disciplined him. Attys must tell the truth even when they think they are doing the morally correct thing o Hypo: P. injury action- settlement agreement to be signed on Thursday. On Wednesday the client dies, which would normally mean everything needs to start from square 1. Atty doesnt tell anybody his client died- @ the settlement conference Def counsel asks how the client is and the atty says hes resting comfortably. This is clearly deceptive b/c although it is a statement of fact that is technically correct, his objective was trying to deceive the other side b/c the other side would obviously think that it meant he was alive resting comfortably. (clinically true but intended to be deceptive). o Hypo: Q/A- determining how to settle a criminal matter (illegal activity occurred at a particular address). Client is asked, Where u at Joe Smiths house on Oct 1st committing an illegal activity? Your client was there doing something illegal but on Oct 2nd. There is nothing deceptive about taking a question literally, especially a compound question like that. The problem there lies in the question (not the answer). o
Sharing Information With Opposing Parties: o Silence is generally ok - Most authorities say that it is not a problem to not disclose information to the other side: if they wanted to know, they should ask, or they should do better research.
Exception: where substantive law requires disclosure of certain information even when not asked for in those instances, the lawyer would be liable for deception (for instance, a sale of a house which has termites or oil leak, must disclose the information in affirmative manner even if not asked for). BUT Being silent when leads to misimpression is clear deception.
o Issues of information specific to the Criminal context: While prosecutors are
required to disclose any exculpatory evidence, they are under no extended duty to disclose information.
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Example: prosecutor and defense counsel are negotiating a guilty plea. The prosecutor knows something the defense counsel doesnt: that the one witness that could place the def at the scene of the crime, died last night. Def pleas guilty, whereas if he knew star witness died they would plead innocent and he would have gotten off. Did prosecutor violate any rules? Nobody asked himif he was asked and lied that would be deceptive. The New York case on point doesnt require this disclosure: Brady requires disclosure of evidence which shows def is innocent, and thats not what this is. The defense counsel should have asked for that information if they wanted it. Of course, if prosecutor found information which exculpates the def, the prosecutor under Brady must disclose any and all material exculpatory evidence prosecutor has duty to see not a conviction, but to see justice is done. Chestnut: Def admits to committing string of murders to the lawyer. It turns out that one which has already reached a conviction of another person, and he was set to be executed the next week. Does the defense lawyer disclose the information? The lawyer there chose not to. Under the code and the model rules, he acted appropriately that would be disclosing confidential information. The exception was for committing crime or fraud in future, and this isnt met, unless you argue its a crime to execute innocent person, and even then, its not your client doing it. So cant do it. In NY, dont have to waive b/c not in furtherance of crime but under MR 1.6, have to b/c preventing substantial bodily harm
Duties to Disclose Information in Negotiations? o Spalding v. Zimmerman: Def retained doctor shows that plaintiff has life threatening aneurysm (which may or may not be caused by the accident) which was missed by plaintiffs doctor. They enter into negotiation without disclosing the information, and plaintiffs counsel never asked for the report. Does the def have an affirmative disclosure obligation for entering into a settlement? Is it deceptive not to do so? If the lawyer disclosed the information, he would be disclosing the clients confidential information to the opposing party. There is no applicable exception here, and withholding this information is not a crime or fraud since no one asked you for the information.
Of course, this information should be given to your client. In Zimmerman he didnt disclose it to his own client, and the client would want that decision as to whether or not to disclose it to the affected party. He would at least want the decision to be his. Note that one of the proposed amendments to the model rules is that, even when unrelated to crime or fraud, disclosure would be permitted (by discretion) where necessary to save a life.
Disclosure is necessary when the information is to prevent imminent death and bodily harm Spalding lawyers criticized for not disclosing b/c o Confidential info is held by the client and the lawyers never asked their client if the client wanted that information disclosed
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7.3. Obligations When the Client May Be Engaged in Crime or Fraud and the Problem of Rectification; Special Obligations of Corporate Counsel.
Where client has misused your services to defraud someone: OPM (one of the most famous cases in Pro Resp) OPM is a corporation that leases out computers, and they are entering into loan agreements with banks where collateral is lease agreements. OPM lawyers set up bank loans. In reality it turns out that the collateral is fake: the lease agreements cited dont exist. Lawyer doesnt know that the lease agreements arent any good, and there is no reason to believe there is anything wrong aka Lawyer wasnt knowingly assisting the client commit any fraud. But they were in fact doing so, even though they didnt know about it. Then an OPM accountant blows the whistle to the lawyer. Lawyer approaches the CEO of OPM with the concern. CEO says yep, they dont exist. We wont do it anymore, but you cant tell the bank about what we already did since we need the money we got on those loans. Should lawyer disclose the fake lease agreements to the bank? o Lawyer sought advice. Ethics consultant said he cant do anything b/c would require him to disclose confidences. (at the time there was no exception to disclosing confidences in these circumstances) Before Enron, the ABA determined it is important for a lawyer to encourage a client to rectify a fraud themselves and to do so requires them to admit, which requires free flow of information o Reasons he was told not to disclose: Everybody in the company will get fired. CEO told atty that he wont enter into any more of those leases. o Can you disclose to the bank? Issue: You have the right to disclose future crimes or frauds, but you cant disclose past ones. If you disclose the future and thereby disclose the past, then you cant disclose the future. Why MUST you be silent? You want the client to disclose to you their good and bad actions. After Enron attys were permitted to disclose, not required. Is there a reason that the atty should be able to rat out his client? You want to instill confidence b/t the clients/attys. You were victimized- the argument is that your obligations/confidentiality shifted a bit
o Model rules (1.6) and Code (4-101(c) now provide for disclosure Rectification as an
alternative: (found necessary after Enron) NY Code DR 4-101(c)(5) A Lawyer who has become aware that his services have been used to perpetrate crime or fraud has a right to withdraw an opinion or statement that is being relied on by another party. In the above instance, the lawyer would be able to notify the bank that the opinion letters are being withdrawn, or the loan agreements they drew up are no good anymore. They cant say why, but they dont really need to. This is noisy withdrawal. .
Under 1.6, The Model Rules allows rectification of a clients fraud when a client has misused the lawyers services to perpetrate the fraud 3.3 requires a lawyer to inform a ct about fraud in some circumstances, but rectification, i.e. protecting victims of fraud from future harm, is always optional o NOTE: Lawyers can only disclose if their service were misused i.e., if the lawyer finds out that the client is doing illegal things that are unrelated to the lawyers services, the lawyer may NOT disclose.
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Why should lawyers not be able to disclose? It might keep clients from revealing things to lawyers You want your clients to admit their acts of fraud to you You want them to be forthcoming After Enron, however, the thought is that (1) the clients are not going to the truth anyways, as demonstrated by the fact they have misused lawyers work product, (2) these clients have forfeited the right to have their confidences protected by misusing the lawyers services, and (3) and its bad policy to have lawyer handcuffed to duty of confidentiality while victimization continues.
o Aftermath - Client wants lawyer to write more leases and letters. Claims that they are
not for fraudulent transactions. The lawyer agrees. Turns out OPM was lying. Lawyer should not have taken them on their word. He now has a duty of inquiry because he is on notice on a pattern of defrauding. Here, this is knowingly assisting client in defrauding another party.
Ex: Lawyer becomes aware that corporate agent is misbehaving. (Find out in their work as agents of the corporation)- Sarbanes Oxley affected this issue. o Issue: What are the lawyers options/requirements in this circumstance? Duty to corporate agents none Duty to corporation yes Pre-Enron Model rule 1.13 provided the lawyer should act in the best interest of the corporation and had the option to report the misconduct up the ladder, but not the duty. IF the agent doesnt rectify (should get the opportunity to fix their discrepancy) the situation than the atty has the obligation to report it UP the corporate ladder. There is an obligation to do that reporting b/c its the corporation that is your client, not its agents. o Cannot report outside the corporate structure. Post-Enron Model rule 1.13 (modified by SOX) there is now a duty to report corporate agent misconduct up the ladder o There is an option to report outside to the SEC if there is clear indication that the corporation is not going to do anything. MAY report, not required. @ first Sarbanes said you must report, but that changes the atty-client relationship too significantly, so it was changed. o What is you do report and you are an internal employee and you get fired? 1.13 doesnt have this protection but Sarbanes-Oxley has whistle blower protection.
8.Ethical Problems Arising in Litigation

8.1. The Decision to Bring A Suit, Frivolousness, and the Motivation of the Client. Litigation that is brought where an atty would say they dont believe they would win. Why bring the suit? Delaying mechanism Suits to stop construction in the city (ex. Atlantic Yards)- Colorable but not meritorious litigation, it might delay construction but most likely will not succeed.
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3.2- Atty has a duty to expedite litigation but only when consistent to help your client. So ex. death penalty appeal, does not violate any of the attys duties. o Nobody has ever been disciplined for bringing a delaying kind of suit.
Ethical questions in the decision to bring litigation o (1) Frivolous litigation the only ethical prohibition Rule 11 cant bring frivolous litigation as def or plaintiff Rule 11 suits- Gone down b/c there is a safe harbor now- i.e. you have x amount of days to w/draw your allegedly frivolous suit when you are notified that somebody is bringing a Rule 11 suit against you. o (2) Where a lawyer, on behalf of client, know that what they are bringing or defending against is not very strong but not frivolous. Can you bring litigation for strategic, non-merits reasons? E.g. Clinton banned importation of certain guns. Gun association got a TRO because it was beyond executive power to do this. Lawyers know that this is a colorable claim. But by the time the TRO lifted, more guns came into the U.S. Lawyers knew this was going to happen. This is considered to be proper lawyering. There is no ethical proscription
8.2.
Contacting Represented and Unrepresented Parties
The No Contact Rule: NY Code DR 7-104 [Model Rule 4.2] lawyer shall not communicate or cause another to communicate with someone known to be represented by counsel concerning the matter they are working on, without first consenting with their counsel, unless allowed by law. o Rationale: on one hand you want the other side to tell the truth, but you want to prevent un-represented persons from being coerced to extract: unfair settlements, admissions you put words into their mouth taken out of context used against them at trial. At the same time, you dont want to have to depose them to find out they dont know anything, but that is what this rule does. Issue: Who is represented by counsel becomes an issue when you sue a corporation. Corporation will take the position that all of the agents are part of the corporation, and the corporation is repped by counsel so you atty cant contact any of the agent w/o their counsel present. Cant extract statements/settlements that can be used against the other side. o Overbroad o Where do corporate agents lie? Are they considered to be part of the organization under 4.2 or are they contactable? Codified in the commentary in 4.2- when you are up against a corporation and you are considering who to contact you have to consider 2 factors: 1. Are they part of the control group who rep/are the corporation? (like the CEO)= cant contact them in the absence of permission by the corporate counsel. 2. Are their actions at issue in the case? If so, then you cant contact them, why? B/c their statements can bind/be used against the corporation at trial. - Cant take it on faith that there is no longer an atty-client relationship. I.e. if a client just tells an atty that they dont have a lawyer anymore and they want to talk, that is not enough. The atty needs to actually find out if its true. E.g. Client injured in production plant. Wants to sue company. Lawyer knows there are eyewitnesses hed like to interview. Are there limitations on interviewing?
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o The no contact rule once there is a matter, lawyer cannot contact or cause another
o o
person to contact someone who is known to be represented by counsel before getting consent by counsel. No contact rule puts damper on ability to get information. Why cant you do that? Otherwise lawyers may extract information unfairly which would be limited if other sides counsel were there. Or may enter into unfair settlement. Who is part of the corporation that is covered by the no-contact rule? Line worker, Director, CEO, Accountant Is the corporate counsel their counsel? Corporate counsel will argue that he is all of their counsel. Corporate counsel does not cover former employees. Lawyer should ask if person is represented before talking to them. Even if person claims he no longer has counsel, lawyer should check with former-counsel to make sure.
Niesig Why do we have this no-contact rule? Otherwise they can extract information that will be used in litigation and unfair settlement o People who are protected by corporate lawyer are those who can do the above 2 things. Group I: Decision-makers cannot be contacted. (CEO) Can extract unfair settlement Group II: Agents of the corporation whose actions are at issue in the case cannot be contacted (line worker) Group III: People who have info not related to their job description can be contacted. (accountant, secretary) Gives information, though not information you can use at trial o really subject to the hearsay rule those whose actions are admissible in the case fall under agent exception; but people who are just eyewitnesses/ bystanders (but not admissible at trial anyway). So basically you can contact people who cant give evidence admissible at trial. A former employee can be contacted though (but not an agent anymore so still inadmissible at trial Stop interview if there is a question of whether their actions are in dispute. but when you start asking them they seem to become no longer an eye witness but an actor. o Difficult rule to manage if you are Pls counsel. o Issue: (from Defs perspective) ABA just wrote an opinion which say- Def attys are not barred in seeking information from putative class members. There is no atty-client privilege w/ the whole class yet. Lawyer in divorce matter disqualified - Representing spouse who voluntarily left premises but had not left with all of their property. Spouse called lawyer wanting to get property and wanted lawyer to come with spouse. Lawyer starts talking to the husband relating to the matter. When husbands lawyer found this out, he asked judge to disqualify lawyer because he spoke to someone who he knew was represented by counsel. o Lawyers motive did not matter. Lawyer should have told the other lawyer he was going and sought consent.
o Issue/Risk with this the Niesig rule: You think somebody is just a witness to the case
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NY Rule if your client wants to talk to the other client, there is no discipline in allowing that to happen There is a provision in the code 7-104 saying you can prep the other side for counsel free, if you notify the other side (but who would agree to that. You can recommend to your client what not to say though Note that the attorney is only prohibited from contacting opposing parties on matters concerning the representation.
Exception: The No Contact Rule does not apply to Criminal Defense Lawyers. o 2nd Circuit Simels: Lawyer representing client (Davis) in murder/RICO trial. Government was negotiating w/ a member of the conspiracy. Harper is incarcerated in same facility as Davis. Simels goes to see Davis one day and decides to see if Harper is around and doesnt contact Harpers counsel and has conversation to him. Harper makes statements that make him not as good a cooperating states witness. State drops Harper as witness. Has Simels violated 4.2? If this were civil litigation, the court would hold that these were proper charges. Has lawyer violated 4.2? Yes. He has contacted another person involved in the matter who he knows to be represented by counsel. But 2nd Cir says we cant apply 4.2 in this context b/c Davis has 6A right to effective assistance of counsel, part of which is to investigate. Dont want to disincentivize this kind of investigation (which is part of effective assistance of counsel). So where the 6th amendment meets the no contact rule, we opt for the constitution over the ethics rule. o So Capra reads this to say that 4.2 cant apply in criminal context. They are allowed to investigation unbarred by 4.2 b/c they have a special constitutionally based right to investigate. But, remember, its a two-way street. This also means you need to tell your client not to talk to any lawyers: you must take care that your client is not contacted by other defense counsel since they are not prohibited from doing so by ethical standards.
o Hypo: Gonzalez repped by F, and calls up another atty Lo who tells him hes not get
very good advice from F. F says Lo violated the no contact rule. Did Lo violate rule 4.2? NO b/c Lo is not repping anybody and trying to get information from anybody. Clients are entitled to 2nd opinions. o The No Contact Rule for Prosecutors: Prosecutors can engage in contact prohibited by the no contact rule provided they get permission from the court to do so first. Here, the unless authorized by law covers situations in which the prosecutor first gets the courts permission. This provides the necessary loopholes to allow for contacting parties who are being coerced, and more importantly, to conduct investigations involving contact of parties who will become adversaries.
Lopez prosecutor is dealing with defense counsel and negotiations are difficult. Lopez is incarcerated pending trial. Prosecutor goes down to see Lopez and says, he should get another lawyer and here is a good deal. Lopez fires his counsel. Is that a violation of the no contact rule? Yes-
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Prosecutor preparing presentation for grand jury. Going to bring accountant of a corporation because they think corporation is dirty. Accountant comes to see prosecutor. Prosecutor knows he is represented by counsel. Prosecutor tells him he cant talk with him. Accountant tells him that his counsel told him to lie and offered him stock options. What does prosecutor do? o Terminate interview and go to the judge. Rule 4.2 court order provision allows you to contact party for situations like these. (also 7-104) Then it is up to the judge. cant contact somebody in the absence of counsel unless permitted by ct order- this was added specifically to deal with situations like this. (situation: looks like if you contacted counsel it would ruin the whole thing but something really bad might happen). 4.2 prevents continuing conversations that are initiated by others who the atty is not allowed to talk to, it doesnt matter who approached who. Housing- professional black guy looks for a house and find a house he wants to buy w/ cash. Realtor says it was just bought, and gets similar responses around the neighborhood. He goes to an atty and his atty who is white goes w/ his associate who is black try to go to buy the same house in the area (the white guy dresses up like a bum, black guy dresses up like a rich pro). The realtor chooses the white guy and tells him they dont want black ppl. o The attys get charged w/ 4.2 and its also deceptive (and attys are not supposed to be deceptive)- no exception for discrimination testing (probably a rule b/c there is a concern about how far discrimination testing goes). Judge Shinlin disagreed and said that discrimination testing is important for public policy. o Prosecutors are allowed to do this but not reg attys.
2nd Circuit Case: U. S. v. Hammad: govt believes Hammad is engaged in conspiracy to transact narcotics. One way to get at this is using undercover informants to go in and get evidence and statements. They do it, and statements are obtained. Hammad claims these statements are taken as violation of no contact rule: lawyer caused another to contact a party which is represented by counsel and wants them excluded. o Govt first contends that they didnt know they were represented by counsel. But they obviously knew since they are such big time criminals. The question is whether the rule should apply here: o Govt next contends: This is pre-litigation activity. But the rule doesnt say after litigation has commenced, it says on matter in which you are representing (the govt). So the fact that litigation hasnt begun shouldnt preclude 7-104 / 4.2 from applying. The DOJ saw this as an end to all undercover activity sponsored by the prosecutor and that would be absurd. Prosecutors are the ones we want running these investigations. So they sought reconsideration of this case. The court amended their opinion when they realized the consequences. Instead the new opinion decides:
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4.2 and DR 7-104 still applies to pre-indictment activity. But here they broadened the unless authorized by law party. The investigation is authorized by law, since we authorized the investigation.
Prosecutor sponsored undercover activity is authorized by law, though there will be limitations on the most egregious undercover activity: o Example: Prosecutor writes fake grand jury subpoena to get the rats to leave the ship. This wouldnt be authorized because you are forging documents. Basically you need to get a court order if you want to do the questionable stuff.
o Even if DR 7-104 is violated, this should only result in discipline, not exclusion.
To exclude this would be contrary to federal rules of evidence which limit exclusion to certain instances.
Federal Attorneys are not exempt from state rules of ethics: Lewinsky matter: Monica is at the Ritz Carlton, and federal prosecutors hold her for interviews. They get information from her, in violation of Model Rule 4.2. But the prosecutors respond that the rules are state based, and the lawyers are federal. This would violate the supremacy clause.
After this, Congress passed McDade Law Federal prosecutors are subject to state rules of ethics in the states where they are active. That removes the supremacy issue from these cases. But the feds dont like this, because they are in different states every day, and it means they would need to know fifty different ethics codes.
o Exception for Trademark Testers: Suppose plaintiff has a corporation with a trademark. They believe a competitor
is pawning off its own substandard goods as the plaintiffs goods by making logos similar etc. And its being done in these stores. Plaintiffs lawyer sends in a couple of people to go in and check it out. They want to catch them and get evidence against them in these interviews. Or suppose they need to send in a discrimination investigator: a fake prospective employees or home buyers, but develop record where black is more qualified etc. Defs move to disqualify the lawyer who sent in these operatives on grounds that it is violation of no contact rule lawyer has caused another to contact represented person in absence of counsel.
The Southern District court said the no contact rule doesnt apply: but didnt really give a reason. Just said it shouldnt apply here this type of tactic is tried and true and has been used for a long time. This was clearly not what 7-104 was designed to prevent. The lawyer didnt put words in their mouth, it was them getting the same information that any regular customer could get. And prosecutors do this all the time [Hammad].
o Exception for Discrimination tester

African-American doctor and his family made to wait to be seated at Dennys. Goes to lawyer. Lawyer thinks the best way to do this is to try this again. Manager tells him that they dont want blacks at Dennys. Dennys wants lawyer to be disqualified and has violated the no-contact rule.
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Should this be a disciplinary matter? It is divided. o SDNY nothing problematic; it violates the letter, but the discrimination test (and cannot w/o being deceptive) has been used as long as there has been discrimination; socially useful conduct o There is a good social policy for this and should bend accordingly.
In Boston: lawyers representing high profile client thought they were screwed by judge and wanted to appeal based on the judgment wasnt written by judge but by law clerk. They set up an elaborate ruse to prove this. They tell the clerk there is an up and coming corporation that is looking to hire. At the interview, the lawyers ask about his clerkship. Those lawyers were disbarred. It is one thing to be a discrimination tester. What about the fact that a lawyer shouldnt deceive. This is not the kind of deception this rule was trying to control. This is a traditional way of obtaining relying information from your scumbag adversary. Other courts [Oregon] rules that this is deceptive.
8.3.
Litigation Tactics, Civility Codes, and Witness Preparation.
Ethics of Trial Tactics: o Suppose lawyer has tons of money in real life. But in court, he dresses a little slummy. Is that proper? Is this different from telling a witness how to dress? Judges will often impose strict dress codes in their courtrooms. And reviewing courts say that trial court judges have general discretion on how people dress (not style, but perhaps propriety). o Sneaky tactics where you pull a fire alarm in court to show that guy really isnt injuredproblem with these is that they are not evidence, but circus tactics. They are just not appropriate; they are taking over the management of the trial. Never even told the judge, and if they had they wouldnt be allowed to do it anyway. by excluding people who are sympathetic to civil rights, with the purpose of getting a biased jury. Generally, lawyers are free to use jury selection to their advantage. This is the adversary system. If both parties are acting in this way, it balances out. Thats just the way it is. This conduct actually seems like it is part of zealous representation of your client. BUT while the lawyer can try to get a biased jury, he cannot use religious, sex, or racial criteria in trying to do so. truth, yet he introduces the witness prior conviction for perjury. Is that permissible? It seems like it would be hard to say this is unethical if the rules of evidence permit it (though it is another thing altogether when you make it up) Its evidence, its truthful, and even if you know they are telling the truth, each side has to bring up whatever they can since it is admissible. One side says lawyer should search for truth. Other side says that a lawyers job is to advocate and therefore (kind of) bound to introduce evidence that helps your client.
o Jury selection: Suppose lawyer represents cop who beat a suspect. He chooses jurors
o Suppose witness takes the stand, the lawyer knows the adverse witness is telling the
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o Suppose victim has been robbed. Victim said robbery occurred 4PM. You represent
defense, client tells you it occurred, but at 2PM. He has bowling alibi for 4PM. Do you bring in that evidence? The govt cant prove their case. Is it furthering the truth? If lawyer is considered a representative of the court to help expose the truth, then he shouldnt call witnesses. Advocacy sometimes means taking advantage of other sides mistakes. Rules: There is a MR that says you have to zealously advocate. Another MR says you cannot put on false evidence (this is not happening here). But you cannot make explicit or implicit arguments to nullify judgments. Example: African American man arrested for possession and intent to distribute. In closing argument, defense counsel sayswhen someone like my client is thrown in jail for a victimless crime, there is a disproportionate number of young AA males in jail for this. Tells jury to take into account the social consequences of guilty verdict. Explicit attempt to get jury nullification. Juries have power to nullify, but not a right. Defense counsel cannot encourage them to nullify. Otherwise counsel is telling them to break their oath. Implicit or explicit arguments to nullify are deemed contrary to the administration of justice. employee. There was a recess, and the jury was not excused. Plaintiffs counsel used his legal secretary to walk up to him with a low cut shirt, and def was ogling her in front of the jury. Is that permissible conduct? No, sanctioned by judge.
o Suppose def is charged with sexual harassment in his workplace. Plaintiff is female
o But Circus tactics not permitted.

Handwriting expert: defense counsel replaced defs handwriting sample with his own to impeach an expert. The judge sanctioned him. Substituting people as the def so they get misidentified: Sanctioned as improper. In both these Circus situations, you both tricked the judge as well as the jury. Lawyer may cross examine as if he has a smoking gun document in his hand while he doesnt. He deceives the witness. Is that permissible. That is not any different from the other tactics, but the court said this was impermissible.
Contempt of Court Issues: Judges have tremendous discretion, lawyers can be found in contempt of court for any sort of disrespect for the judge, or the court - This is insulting the court. o Common Examples: Defense attorney is warned not to talk about a lease since it is being excluded for evidentiary reasons. Then he talks about the lease. Warned again. Still talks about it. He did it 8 times. The judge then warned about contempt. Then he found him in contempt of court. Judge was called corrupt by attorney. Attorney was found in contempt and that was upheld.
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Discourtesy to other lawyers in front of judge Judge has been ordering lawyer for hearing, asked him three times. Lied about some domestic dispute. Put him in jail for 8 months, upheld.
If a lawyer knowingly violates an order of the judge with respect to something in court proceeding, he can be subject to contempt. Contempt requires: Knowing violation In presence of judge Examples of contempt Telling judge he is corrupt. Using profanity Yelling at the other counsel Standing order no raising of voice in courtroom o E.g.; Young public defender has lost 54 cases in a row. When he won the case he exclaimed Yes! Judge put him in jail for contempt. Public defendant appeals. if just an emotion response- not a knowing violation- so can be overruled Fuzzy rule Must be a clear rule Even if rule is clear, if it is draconian- no exceptions- 5 minutes late = contempt where lawyer was late b/c of accident on highway = overruled. Sanctions o Can sanction lawyers for conduct that is rude, offense, and the like. o Insulting conduct can give rise to sanctions. o Even if judge isn't there E.g.; At deposition there is a young female attorney and an older attorney defending the depo. Older attorney punctuated every sentence with Hun Judge sanctions the lawyer. (censure) Speaking objections in giving witness cues as to how to answer depositions saying more than objection Not permitted under the federal rules or under NY practice This leads to broader problem Rambo lawyers just being a jerk. Wont grant other side extensions at all. Is there a limitation on Rambo lawyers? E.g. Being a total jerk. o Civility Rules (NY has these) - Limits on impolite lawyering o Offensive personality rules have been struck down as vague. o Dont be a dick if you keep not granting extra time, etc may be sanctioned. o E.g. Last Straw Federal Case in Indiana One party filed papers. Other side received the papers but $.39 due and refused to pay. Other side refilled and added another stamp. Other side now objected to papers as an untimely filing. This court found this to be last straw and sanctioned lawyer. o For many people, this is an act and is an effective tactic for many. o Problems with Rambo lawyering: Might come back to bite you (burns bridges) other side will refuse to cooperate because of your behavior; judges may lose patience o E.g. How far you have to go to be nice? - Solo practitioner against a larger firm in a civil action. Judgment is render for def. Plaintiffs counsel calls defense counsel and tells them he wants to appeal. Plaintiffs counsel asks for waiver of 10 days to
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file notice of appeal because of a serious personal injury. But notice of appeal cannot be waived. When defense counsel signs this letter, it is of no use. A civil lawyer would have told plaintiff of this. What does a lawyer do that is faced with this phone call? Nothing wrong with signing on unenforceable agreement as long as it isnt deceptive. Issues in support of civility is in conflict with zealously representing your client. So civility should give way in a situation like this different than just asking for an extra hour to ask questions at dep.
Regulating conduct towards other lawyers: Insults and other ill conduct towards another lawyer is not technically contempt, but it is sanctioned. Courts have found that this can be regulated on grounds of conduct prejudicial to administration of justice. o Examples: Lawyer called adversary babe. He was sanctioned. But is this even disrespect for administration of justice? One could argue that this is effective advocacy: there is nothing wrong with intimidating adverse counsel. But he didnt argue that. Defense lawyer calls other lawyer slime. Says if you keep going with this matter, I am going to depose you, and it will be equivalent to proctology exam. Court rules that these are Rambo tactics, and you need to have respect for fellow lawyers sanctioned. Is this legitimate? 2nd circuit invalidated the sanctions. Were not going to go through this kind of lawyer control. High public officials use this language. But there are limits and may be sanctioned: sexually explicit, racist stuff.
o NY has Professionalism codes / Civility codes: demanding that you conduct yourself
in a civil manner and be courteous. For example, you shouldnt serve papers at inconvenient times. You shouldnt serve burdensome interrogatories. Be nice. Is this even a good idea? You want a bad ass lawyer. California civility code prohibit engaging in offensive conduct. This was struck as constitutionally vague: sometimes you need to act in a somewhat offensive manner.
Is there a limit to civility codes: Civil case where def has won a judgment. Plaintiff calls defs counsel and says Im swamped and I need time to file notice of appeal. Would you mind signing a stipulation to extend the deadline for filing notice of appeal. Defense lawyer knows this wouldnt make a difference: the court decides the deadlines and how they move. But he signs it and doesnt say anything. o Telling them is doing the other sides legal work. How civil do you need to be? Missouri S.C. said there was nothing wrong with what the lawyer here did. But dissenters said this violated civility code. o Capra thinks: either have an adversary system or dont. Represent your clients, not opposing counsel. Probably the best thing to do is ask the client what they want to do on this type of issue. This case goes either way.
Capra: The more you hue toward protecting your clients interests when things are in doubt, subject to violating criminal laws, the
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better off you will be. This is the general prioritization: do you report not if it would hurt your client. So the safer course here would be to confer with client and do what they want.
Witness Preparation: How far can you go in refreshing recollection or perfecting and refining the testimony to be given by a witness? o DR 7-102 [Model Rule 3.4]: Cannot counsel a witness to testify falsely. But the distinctions between false testimony and coaching to a perfected response for purposes of the court and the jury are often blurred. There are the obligations you have you obviously must prepare witness (part of zealous counsel. Are there things you cant do because it is unethical? o Anatomy of a Murder Defense counsel wants to prepare witness by telling him the pertinent law. You cant suggest to witness something that might not have occurred. But you cant basically just tell them the legal std to get insanity or whatever and give them a specific instance as an example to replicate. o E.g. Taped conversation between prosecutor and identifying witness. Pretty sure that s the guy. Prosecutor tells witness not to say pretty sure in order for person to be convicted. Tells witness he doesnt want him to lie. Witness then says he is certain. Is this improper? No, because he told him not to lie. Refining testimony is okay. Client or witness might not know what the relevant language is. Need to instruct whats relevant but you should directly tell him not to lie. o E.g. Client wants to sue third party contractor because he got hurt on the job. Client says he tripped and fell. Lawyers always ask if you were on a ladder. This is because there is a scaffold law, negligence is presumed. o This is a difficult line. o Example of Over the line Divorce case. Lawyer representing the wife. Husband calls a witness who says he had sex with the wife and the baby was in the playpen in the motel. Her lawyer is totally surprised and tells her to lie. - This lawyer was disbarred. 608(b) prohibits extrinsic evidence if you tell client about rule, it encourage client to perjure themselves telling client about the law is never a problem, as long as you tell them not to lie
8.4.
Disclosure of Adverse Law and Fact.
Disclosure of Adverse Fact and Law: What do you have to volunteer to the other side: o Adverse law: Plaintiff is representing DES claimant (grand babies got cancer from drug). Lawyer files brief in opposition of motion to dismiss. Finds out that defense has failed to cite a case called Albala: where a court denied a claim by a child who sues for damages while a fetus - the breach occurred before she was a person, and therefore couldnt grant recovery. But there was a footnote that for mass tort claims you might be able to recover on these kinds of things. Defense forgot to cite this case. Do you disclose Albala to the court? It is not favorable to your case: in fact it is directly on point against you.
NY DR 7-106 [Model Rule 3.3] say that a lawyer has a duty to disclose directly contrary authority from a controlling jurisdiction. If the
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authority is directly contrary in a controlling jurisdiction you have a duty to disclose it. Rationale: there are other people and other interests involved other than the other side the court. While you have duties to your client and need not do work for other side, there will be a court judgment on a legal issue: a decision about the law. And if the court is not informed on the ruling, it will look bad, and it might change the law in a way not intended. You may be able to argue its not directly controlling (a la the footnote) Maybe. But you cant stretch via ridiculous means to distinguish the cases. Most courts would expect you to cite Albala in the above scenario. o Bear in mind: most of the time the court will know about the case, and if you dont bring it up, the court will catch you and be pissed. The inference there would be that you were sleazy, not just negligent. But the rules only apply to applicable law once the case is in court: For instance, in settlement negotiations, you can take advantage of the other sides mistakes. So for negotiating settlement where they missed something that affects the strength of your case you dont need to disclose. E.g. Filing apply brief on the matter. You have concern about a case in jurisdiction that is contrary to your clients case. Other side sends a brief and it doesnt mention that case. Do you have to tell them about this case? 3.3 lawyer has duty to disclose to the court, directly adverse authority in a controlling jurisdiction This seems in conflict with zealous representation, but a lawyer is an officer of the court and shouldnt be hiding the law ball from the court. Rule of thumb: if you were going to spend a lot of time preparing to distinguish that case, then that is directly adverse Professor thinks this rule is excessively protective. - It is assuming that the other side is an idiot and that the judges clerks wont be able to find it. This principle has been used to regulate selectivity. (selective quotes, etc.) E.g.; Lawyer got sanctioned for filing brief with a block quote from a 7th Cir case that seemed to determine the case. But it left out information that it was only for social security cases and her case was not a social security case. She also italicized sections and did not indicate emphasis added.
o Adverse Fact: Generally, you have no duty to volunteer adverse information, but
if you are asked directly you need to disclose it Why? Any adverse fact you learn during course of representation is protected by 1.6. duty of confidentiality- so theres a duty not to disclose adverse facts. o There is a duty not to volunteer information. Different from law because law is not confidential. A fact can be confidential. If a fact goes undetermined, the judgment might be erroneous, but it will not impact other cases. If law goes undetermined, it will effect other cases.
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Example: public defender in AZ represents DUI def at sentencing proceedings. Turns out the prosecutor has missed the fact that def has 3 prior DUI convictions. You clearly have no duty to bring up the convictions if no one asks you about them. You clearly CANNOT say my client has no prior DUIs: that becomes deceptive and you cant do that. BUT Gray area: no other DUI appears on his record. o Better: prosecution hasnt found any DUI on his record. You need not offer up an adverse witness: dont need to do legal work for your adversary. Exceptions: o Where you are asked by opposing counsel or the court o Where substantive law requires disclosure Bankruptcy law requires disclosure where firms have previously represented creditors But if you have exculpatory evidence that def would want, you have to give it up: E.g.; Duke lacrosse case o Prosecutor hid 2 things: (1) forensic evidence that was attributable to others; (2) forensic evidence was not connected to the defs. o Prosecutor claimed he didnt have anything that the defendant could use. This was deceptive. If you are asked about adverse facts: As per above, you generally must disclose adverse fact if asked directly. But How sleazy can you be in the answering process? Discovery Requests: you want to read the discovery request very narrowly but You cannot exploit the cracks in discovery requests. You must respond as a reasonable person would.
E.g.; Plaintiffs wanted evidence from a drug company. Asked for any records having to do with production or testing of Intal. Plaintiffs could not ever get docs because drug company called its documents something different all the time. o Law firm was sanctioned for $1 million. E.g.; Safety problems in Wal-Mart parking lots. Risks of attacks went down when it was a lighted with a security guard. Files included this study. Plaintiff asked for any studies done by Wal-mart of its parking lots. Defense counsel said they didnt have any such study. Turns out they called it a survey. o Wal-Mart was sanctioned. Judges can get impatient because of these kinds of interpretations of discovery requests. Ungenerous readings of discovery demands have been receiving attn from judges. Disclosure of Fact in Depositions: Arguably, in depositions there is a higher threshold for answering questions specifically, since lawyers are taught to follow up. If they do not, they arent being thorough this is part of the adversary system.
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Client asked if he was wearing glasses at time of accident. He says yes. But he was wearing someone elses. Can he be counseled to leave it at that? Probably.
8.5.
Handling and Production of Evidence that May Harm the Client.
Handling evidence that the client presents to the lawyer o Physical evidence: Lawyer cant be party to hiding or destroying evidence. Most of this comes up in criminal cases, but they can apply in civil cases as well.
Ryder: lawyer is given evidence by criminal he is defending, and he keeps it and hides it from authorities. Lawyers get disciplined for doing this. They dont get disciplined for keeping confidences, but a piece of evidence is not a confidence, its just a thing (not a communication). Authorities see this as tantamount to destruction of the evidence the authorities would not think to look in the lawyers possession. So its considered obstruction of justice hiding the evidence is inappropriate. BUT what can you do with respect to evidence? Meredith: client said I robbed someone and left their wallet in the dumpster. Lawyer took it out of dumpster and held it. This was held a violation for keeping the wallet, but what was the lawyer to do? If you dont go and check it out, are you adequately representing your client. You should go there, check it out, investigate it, and then leave it there. Tampering via dislocation is what the problem is. But the garbage will be destroyed. And if you know that it is going to be destroyed do you need to preserve it? NO.
You cant make the prosecutions case harder by hiding the evidence, but you need to affirmatively disclose it to the prosecution. You can leave it there, hope nature destroys it, and youre ok. No obligation to do the other sides work for them.
o o
Rule 3.4 cant unlawfully obstruct the other sides access to evidence Options If you cannot keep the evidence, you should turn it over to authorities once your client leaves. Problem with this is that you are not zealously representing your client. o Model 1.2 lawyer must keep client apprised of their legal rights and obligations So solution is youve given it to me but I cant keep it so if you leave it with me Ill have to turn it over to authorities so client takes it and destroys it themselves. Must have dialogue w/ your client inform your client of negative consequences if you know your client is going to put on false evidence. o Withdrawal doesnt work not a viable option b/c all it does is get that lawyer out of it.
Can you rat out the client if you know that they are going to destroy the evidence? Model rules would not allow disclosure of this future conduct (only allowed for death or imminent bodily harm)
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Code allowed to disclose for future crimes (but youd have to tell the client that you are going to do that) this is an option not an obligation Knowingly false evidence is where there is a clear indication either from doc or client.
o People v. Belge (Client tells lawyer he killed someone and threw the body in the mine.
Lawyer doesnt tell anyone about the body. Lawyer is charged w/ misdemeanor for not reporting a dead body.) There is no exception to allow lawyer to disclose this confidential information and charge was dropped.
What if your client has electronic documents? Electronic docs easy to delete E.g.; Enron Arthur Andersen lawyer wants to energize records retention program in view of SEC investigation. This was obstruction of justice (reversed by Supreme Court but not on merits). Now, any lawyer who suggests records be destroyed under suspicious timing (even routine destruction) when litigation is foreseeable this is a serious issue. When can you destroy records? Cannot violate a litigation hold picture of all electronic documents is taken on day hold given The real troubles occur if where the evidence is placed right on the desk of the lawyer. Client comes in and hands you evidence. Now what do you do? Refuse to accept it is one option. But then what do you tell them to do with it? You can say if you kept it you need to disclose it. But the client will no doubt take it back and destroy it. So you cant keep it, since if they leave it there you need to turn it over. Not saying anything and turning it in is a violation as well: you didnt tell the client you had a duty to turn it over. So what do you do? You need to further counsel them that destruction of evidence is a crime and a sentence enhancer. But there you leave it. Most of the time, they destroy the evidence anyway. And in a weird way the lawyer has become party to destruction of evidence. But there is no other solution.
8.6.
The Problem of Client Perjury.
Code DR 7-102; EC 7-26 Model Rule 3.3 - CANDOR TOWARD THE TRIBUNAL. Nix v. Whiteside (SC) Whiteside (D) killed a guy approaching him in his bedroom. When initially interviewed, he said, I saw the guy coming towards me, and I shot him, and he didnt see a gun. The lawyer says this is not important. Few months later, D says that he saw a metallic weapon as the guy approached him. The lawyer assumed that the client was going to perjure himself and the lawyer threatened him with disclosure and withdrawal. The client complied and did not lie. MR 3.3 and DR 7-102 deal with the lawyers knowing use of false evidence deliberate ignorance constitutes knowing. D is convicted. D brings a claim of ineffective assistance because the lawyer did not let him perjure himself. The Court held that D has no remedy because he wasnt prejudiced by lawyers activity. o Court goes through the ethical responsibilities of a lawyer who has a client who wants to perjure himself.
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Everyone agrees that if there is perjury afoot, the lawyer should try to convince client not to do it, which is what lawyer did in Whiteside Remonstration (complaint). When does the perjury dilemma arise? Defense lawyers argued that this wasnt perjury and the lawyer jumped to a conclusion.
Knowingly assisting perjury is against the Code. But what is perjury? Was the lawyer knowledgeable about the false evidence being put on? Rule is knowingly puts on false evidence. You cant think it is false evidence. You know is when your client tells you he is going to lie. When client makes two totally conflicting statements. (I shot police officer vs. I wasnt there) Knowing means clear indication of a lie (coming from the client or from the circumstances) o E.g. bottle label had telephone number that did not exist at the time label supposedly originated Ex. Penny & Edmonds was sanctioned for putting on false testimony. They are representing a wine distributor in trademark infringement litigation. The firm claims that they had manufactured the label well before the P started his business, and produces a label with an affidavit that it is 30 years old. However, on the label, there is a phone number on the label with the (973) area code that was just introduced 2 years ago. This is perjury and triggers the standard of knowledge Do you judge your client or not in terms of perjury? Inconsistency is not perjury. Inconsistencies occur because of failure of memory or stress or confusion. Lawyers who jump to conclusions risk civil liability. Thus, you dont judge your client.
Steps Attorney can take when suspects that that client wants to perjure himself: o First you remonstrate, i.e. tell client its a bad idea. You counsel them not to do it because it can add years to your sentence even without a perjury trial. There can be an upward departure under the sentencing guidelines. Also, likely that court and other side will now o If he still doesnt comply, what are the lawyers options? Withdrawal The problem is that doing this tells the court your client is going to perjure himself. You need to petition the court to withdraw and whether you are permitted is within the discretion of the court. Also, the client could get another lawyer and the perjury could still occur, and hence, you have an unwitting lawyer assisting perjury. This does not prevent perjury. The ABA says that withdrawal is not a solution. Thus, this should be a last option. Not calling the witness to testify If you know someone is going to lie, you dont call that person to testify. The problem with this proposal is that it works with everyone other than the criminal D because the criminal D has a constitutional right to testify. The idea of not calling is not an absolute solution even with non-D witnesses because the D may end up firing you if you refuse to let their mother lie for them on the stand. Also, does the D have a constitutional right to lie on the stand? The lawyer will often not call the D. The D will then let the court know that he is not being allowed to testify. Again, you have the
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problem of disclosing to the court that your client is going to lie. To avoid reversals, trial courts will allow the Ds to testify. Clearly, the witness gets to testify to truthful parts, as was the case in Whiteside. You can call them about testifying to the truthful side, but it is very likely that the D will freely lie about what he wants on the stand. Hence, this is not a solution either.
Free narrative You call the D and you ask him to tell in your own words what happened that night, and you dont ask any further questions. This seems like a fair solution because you are not subordinating perjury. It allows the D to testify falsely but you are not assisting it. The problem with this is that the trial judge and prosecutor will know right away that the D is perjuring himself. The ABA has said that this is not a viable solution. However, there are many states like DE and FL that approve of this method and even mandate it. The NY Court of Appeals has also said that a free narrative is permissible. Telling the court What does the court do with this information? There is no guidance to this, and the court does nothing with this information. They dont keep the Ds off the stand because it risks reversal. Most judges will let D testify but threaten him with penalties if he perjures himself. Thus, this method really doesnt solve anything if the D gets on the stand and perjures himself. What are you supposed to do as a defense counsel? You have to do your job, and have to use his testimony to make your case. Thus, you havent solved anything and have been implicitly authorized to assist perjury, and you have destroyed confidentiality. MR 3.3 says that as a last resort, the trial court should be notified of the Ds intention to commit perjury. This is mandatory. DR 7-102 says that disclosure to the court is an option and not mandatory. Another option in NY is the free narrative. People v. Andrades NY thinks this is the solution also If judge prevents client from testifying, this will be grounds for appeal. Usually judge will say thanks for the info and then proceeds. Assisting a client in committing perjury and not destroy confidentiality, if you are going to have to do it at the end of the line anyway? The National Defense Lawyers Association feels this is the way to go. This is why we have the adversary system and prosecutors, to root out perjured testimony. Why cant we leave it to this system even though the reality is that most lawyers follow this procedure? But the Code says that you shall not knowingly assist perjury. Defense lawyers say that they are not knowingly assisting because they really dont want to do it.
In practice, lawyers are not remedying the problem because there is no proper way to remedy it.
Do you disclose a fraud on the tribunal after it occurred? o Ex. The client tells you this story: I have an alibi and my secretary is my alibi who was with me at a convention, and hence, I couldnt kill my wife. At the post victory party, after acquittal, D says to you, Nice job with the perjured testimony. What do you do now? This happens very often. The 2 ways to look at this are: finality and new evidence. MR 3.3 says that if you know there is a fraud on the tribunal, you have a duty to disclose to the tribunal up unto the final proceedings. Thus, you
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dont disclose if discovered in a post-victory party. Thus, it seems to suggest that your obligations to your client are greater than your obligations to the court.
DR 7-102 says that if you have information that your client created a fraud, you must disclose it unless it is protected as a confidence or secret. This is like a duty with really no duty. It is a rule swallowed by its own exception. Another provision says that if you get information that anyone other than your client has created a fraud, you have a duty to disclose it. You cant disclose your clients discovered perjured testimony, but dont you have to disclose the secretarys perjured testimony? The problem is that by disclosing the 3rd parties testimony, you are disclosing your own clients testimony because you are inferentially disclosing your clients fraud. Thus, it is a very limited rule.
8.7.
The Lawyer as Witness.
MR 3.7. - if a lawyer is someone who ought to be called, then that disqualifies the lawyer as clients atty Ought to be called only the lawyer has this info (not privileged info), i.e. have to be called o Two problems: Reasons different but results the same for whether info favorable/adverse
Lawyer has info adverse to the client - Atty cant be called as a W in case against client while being clients best advocate E.g. US v. Bin Laden defs under heavy security and allowed to see attys. After lawyers left, and guard came in and defs had a pen that they wouldnt have otherwise had. Used pen to gauge guards eyes o Almost definite that lawyer would have info on how def had a pen. o Govt ended up dropping the pen matter. Didnt bring it up b/c didnt want to disqualify the lawyer at this point.
Lawyer has info favorable to client - Not a conflict when lawyer being called positively and then being an advocate. However, the problem is the prejudice presented to the other side. Lawyer who has this info as an unsworn W not subject to cross
E.g. Gotti Cutler (atty) would have info favorable to def and pros objected. Cutler would be able to make unsworn testimony E.g. Klisi star W for def wanted money from atty. Atty refused and W b/c star for pros. Lawyer is witness to this act which could impeach W. Only lawyer has this info so would be disqualified o Individual atty disqualification not team
8.8.
Trial Publicity.
NOTE: No provision banning lawyers not representing anyone from being a talking head
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MR 3.6 - A lawyer should refrain from making extrajudicial statements that have a substantial likelihood of prejudicing the proceedings o E.g. Def lawyer on TV def is innocent. All the jurors on drugs. Pros on TV def is guilty This pollutes the potential jury pool Problem recognized from each side.
o What if there are never going to the proceedings? E.g. Pros saying on TV were
not indicting this guy cause he hid money and we dont have the evidence Not prevented by MR 3.6 b/c no proceeding However under MR 3.8 a prosecutor shall not make extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused
E.g. Gentille lawyer representing former cop accused of stealing drugs from evidence room. High profile case. Prosecutor leaks report that other possible suspects have been cleared and that Gentilles client is the only suspect left. Prosecutor leaked pretrial info. Then Gentille makes statement and is disciplined o Gentille argued 3.6 hindering his 1A rights and there should be a clear and present danger test and not likelihood of materially prejudicing Ct says no. Atty is not the New York Times. Lawyers statements carry a lot of weight o Gentille argued that had no intention of leaking info, but then heard pros so he had to retaliate Ct said two wrongs dont make a right After Gentille - 3.6 changed to Notwithstanding any other publicity rule, an atty may make a statement to prevent undue prejudice not initiated by atty. NY Rule similar o When case got to trial, in voir dire jurors asked whether they heard info. Answer was no so Gentille argued he didnt prejudice However, that it is not the standard. It is substantially likelihood. If lawyer is doing nothing more than reading public document, even if substantial likelihood o Not violating 3.6 b/c it is a public document. o Doesnt matter that no one knew before lawyer read it o However, prosecutors create public documents, e.g. indictments. Still no violation Civil cases o Unlikely for discipline in giving up info in civil case Not as likely that is high profile However 3.6 says prejudice a proceeding so there is a possibility o E.g. Duke Lacrosse Duke arguing that website created by lawyers and clients will pollute jury pool. Lawyers saying most stuff is public docs. Not covered by 3.6 Since on website, would have to posit that jurors would find it Not typical type of publicity that gives rise to 3.6 but can Also has been in public eye for while Gentille not sympathetic to that argument
Gag orders can be imposed on attys during matter.
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o More specific than 3.6, i.e. Have timing

o o
Most lawyers prefer b/c they are more predictable However problematic issues if overbroad E.g. Duffys gag order in WTC 6 mos. before, there will be no statements by attys or agents on the case. $200 for first violation, squared for second, squared for third lawyers appealed and it was vacated on grounds that it was overbroad E.g. Gotti gag order said dont violate rules of PR. Cutler goes on NY1 and says Gotti is innocent and no such thing as mafia and govt seeking to frame a man and govts Ws are all lying Cutler brought up for contempt of violation of order. Cutler said he didnt understand gag order and no intent to violate gag order o Ct found intent b/c at BLS, he stated my job is to pollute the jury
Once trial is over, you can speak all day. 3.6 does not apply b/c not a proceeding o Can you say it was a travesty? Yes o But under 3.8, can be disciplined for false statements made about judge? Examples Judge is a Nazi ok b/c opinion Judge accepted bribe in the case not ok b/c false statement
8.9.
Ethical Limitations on Prosecutors.
E.g. Pros charged def for a different crime than what they are really after, i.e. Al Capone problem o Is there an ethical issue? 3.8 only ethical limit on charging is if you have probable cause E.g. Capone probable cause to believe guilty on tax issues Constitutional limitations on charging decisions o EP requirement Pros cannot charge on discriminatory (suspect classes) basis E.g. 100 people all committed same crime only charged minorities Violation but always hard to prove E.g. Armstrong Black def was indicted for crack possession w/an intent to distribute. He showed all those charged in district were black No violation b/c no showing that white users were not indicted o Vindictive prosecution E.g. def charged with aggravated assault. Goes to trial, convicted, exercises right to appeal and is granted. Now pros ups charge to murder Inference of vindictive prosecution. Presumption overcome though if there is a legitimate explanation, e.g. victim died during trial
Pros has inconsistent positions in multiple cases o E.g. Thompson/Lechane T tried second, L tried first. At Ls trial, pros argued that L killed victim and T helped dispose of body. L sentenced to death At Ts trial, pros argued that T killed victim and L helped dispose of body. T sentenced to death
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Other E.g. in TX, aggravating circumstance is pulling trigger during robbery otherwise felony murder. Two defs sentenced the death, even though only one could have pulled trigger Is there a problem with this? You would think defense counsel would disclose this o Maybe claim for ineffective assistance In 9th circuit, which was Thompson said rights were violated from facially inconsistent prosecution o Death penalty reversed. L already executed In TX, no false evidence. For jury to decide.
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Index
Admission Screening............................................5 American Airlines...............................................60 Assisting Clients in \Objectionable\...................69 Attorney client privilege.....................................32 Attorney Client Privilege in Multiple Client / Attorney Representations...............................41 Berle..................................................................59 Business Transactions between Client and Attorney..........................................................56 Certainty of Guilt................................................11 character and fitness...........................................5 Character and Fitness Inquiries............................5 Cheating..............................................................6 Chugach.............................................................58 Circus tactics.....................................................83 Civility codes......................................................85 class actions......................................................51 common interest doctrine..................................41 conduct towards other lawyers..........................85 Confidentiality generally....................................30 Confidentiality issues of Non-Clients..................23 Conflicted Prosecutors.......................................55 Conflicts of interest............................................21 Conflicts of Interest Generally............................47 Conflicts of Interest in the Criminal Context.......53 Conflicts of Rules.................................................3 Consumer Protection vs. the Integrity of the Legal Profession.......................................................10 Contempt of Court Issues...................................83 Contingency Fee Reform....................................65 Contingency Fees...............................................65 Contingency Fees in Transactional Practice.......67 Contingent Fees in Malpractice Recovery..........16 corporate context........................................39, 71 Corporate Miranda warnings..............................40 Corporate Waiver...............................................42 Crime / Fraud Exception.....................................46 Criteria for Admission..........................................5 Defining Firm for Purposes of Imputed Disqualification...............................................61 Defining Former Client.......................................59 defraud..............................................................75 Depositions........................................................88 Dewey Ballantine...............................................17 Discipline Procedures in NY..................................8 Disclosure of Adverse Fact and Law...................86 Discovery Requests...........................................88 Divorce cases.....................................................48 Double Billing.....................................................64 Duty of Confidentiality vs. The Attorney Client Privilege..........................................................30 Duty to Maximize Prospects for Confidentiality..37 Duty to report exists..........................................11 Duty to Report Unfitness to Practice Law.............6 evidence............................................................89 Exceptions to the Attorney Client Privilege........37 Exceptions to the Duty to Report.......................12 excessive...........................................................64 Expenses...........................................................68 fees....................................................................64 Fees in Class Actions..........................................68 Firm Discipline In NY Only..................................10 firm-wide disqualification...................................56 Formation..........................................................22 Former Client Conflicts.......................................57 identity of client.................................................37 illegal.................................................................70 imputed.............................................................56 Imputing Conflicts..............................................61 In-state Office Requirements...............................7 incompetence of client.......................................28 inconsistent positions in litigation......................52 Ineffective Assistance on Appeals......................22 ineffectiveness...................................................17 Ineffectiveness and Duties to Comply with Clients Wishes............................................................20 Ineffectiveness and Duties to Investigate..........19 Letter of caution..................................................8 limit the scope...................................................25 Limitations on Contingent Fees..........................66 LodeStar method...............................................68 Malpractice for Local Counsel............................13 Malpractice in settlement advice.......................14 Malpractice Liability...........................................13 Mandatory Counseling.......................................24 McDade law.......................................................38 McDade Law.......................................................81 Mediator.............................................................50 moral dispute.....................................................70 Negligent Waivers..............................................43 Negotiating on Behalf of your Client..................72 negotiation.........................................................72 Negotiations.......................................................74 Next Friend process...........................................27 No Contact Rule.................................................77 No Contact Rule for Prosecutors........................79 no Upjohn duty for government lawyers............41 Nuremberg Defense...........................................71 Obligation NOT to take a client..........................24 Obligation to take a client?................................23 OPM...................................................................75 over-lawyering...................................................14 Partitioned Representation................................24 per se prejudicial...............................................21 Perot..................................................................60 personal interest in the matter..........................55 Playbook considerations....................................58 plead insanity....................................................28 Political or Social Views........................................6 Positional Conflicts.............................................52 Practice Specific Conflicts..................................60 Predominant effect of Conduct............................4 Prejudice of Ineffective Counsel.........................20 preliminaries of representation..........................37
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Downloaded From OutlineDepot.com Private discipline..................................................9 privity................................................................17 Professionalism codes........................................85 Punishments Generally........................................8 real estate transactions.....................................50 Releases from Malpractice Liability....................15 Residency............................................................7 Save him for Science Arguments.......................18 Scope of \Communication.................................35 Scope of the Attorney Client Privilege................32 Screening Procedures........................................62 Secrets vs. Confidences.....................................31 Self Regulation...................................................10 Sharing Information With Opposing Parties........73 Simultaneous representation.............................47 Standards of Conduct..........................................8 Strategy.............................................................18 Strickland...........................................................17 Structure of the Rules..........................................3 Substantial Relationship....................................57 suicide...............................................................39 Suing their own Current Clients.........................51 Swidler v. Berlin.................................................39 Termination of Attorney Client Relationship.......25 Third Party Malpractice Recovery......................16 Thresholds for the duty to report.......................11 Trade Secrets in Subsequent Litigation..............60 Trademark and Discrimination Testers..............81 Trial Tactics........................................................82 Upjohn...............................................................39 Vertical Disconformity..........................................4 Waiver of Conflict...............................................53 Waiver of the Attorney Client Privilege..............42 Witness Preparation...........................................86
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Professional Responsibility Capra 2008

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Professional Responsibility Capra 2008

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Conflict of Law Issues

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2.Regulation of the Bar.

Character and Fitness and other issues of admittance.

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o EC 1-6: can be disqualified (permanently or temporarily) for mental/emotional

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o More serious discipline: Public Sanctions

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The Duty to Report Misconduct.

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Regulation of Lawyers Outside the Disciplinary System.

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o Advising to REJECT a reasonable settlement: plaintiff is injured crossing street and

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2.4.3. Ineffective Assistance of Counsel

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o Some Clear Cut Examples Prejudice Proven.

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o Per se Reversal: Limited exceptions where prejudice will be deemed to exist

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3.The Lawyer-Client Relationship.

Rejecting, limiting, and ending the representation.

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o Legal representation should NOT be denied simply because it is controversial.

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o Non-litigation scenarios: lawyers have an absolute right to terminate 25

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Allocation of Decisionmaking Authority.

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Sexual Relationships Between Lawyers and Clients.

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4.The Lawyer's Duty of Confidentiality.

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o (atty will never have to disclose what is privileged)

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The communication must be intended and reasonably anticipated to remain confidential

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o The communication must be intended and reasonably anticipated to remain

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o Unlike Shargel where that you went to a lawyer not

privileged, but why you went to lawyer is privileged.

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The Problem of Corporate Employees.