Ritter Professional Responsibility Spring 2010

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**** USE Rigos
book for EXAM
****KNOW MR 1.6 IT IS THE KING ***EXAM EXAM asked things from the model rules and the comments dry run of mpre
***** If the questions says they have advertised BUT have not passed the bar or accredited or approved by the ABA. The question could say she is a uniquely qualified person or specializes in that area with work experience. Exam: Judicial code is on exam Attorney Client Privilege Permissive and Mandatory Withdrawal
Wont ask the different rule (Cali, Marylandy, NY) just what is permissive and mandatory rules
***If you are representing 2 clients and then they decide to sue each other YOU MUST direct them to get other attorneys and you must pull out because you cannot represent one or the other. **Lawyers duty is to the court over the client ALTHOUGH sometimes MR 1.6 mucks it up MR 1.14: Clientwith Diminished Capacity (treat impaired client as a normal client) If a clients ability to make decisions is diminished due to minority, mental impairment, or other causes, the attorney is permitted to take reasonably necessary protective action. This includes consulting with persons or groups that could protect the client or pursuing an appointment of a guardian ad litem, conservator or guardian. The attorney/client privilege still exists, but client information can be disclosed to the extent reasonably necessary to protect the clients interests. Note: Before mediation you need to talk specifically what they do and dont want.
*******EXAM- The number one thing is to treat them as any other question (that is the rule until
you get to the exceptions) MR 1.15: Safekeeping Property Can deposit advance payments of expenses and fees into client trust account and remove them when expenses incurred or fees earned. Can deposit your own funds into the client trust account to cover bank fees, but no more. If receive settlement check or other funds: Notify client promptly. Promptly deliver clients funds to client. Promptly provide an accounting of the property. ***** We get a settlement of $100,000. I think I am owed 40%, client says no you told me verbally that it was %20. I have to immediately give client the 60%, which is $60,000 because it is not in dispute. You could get math problems on MPRE. Have to give the clients the funds not in dispute. Mr 1.5 Fees There is a difference in when writing is required
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*****EXAM!!!! Has to be in writing IF its contingent fee, its preferably to be in writing at a reasonable amount of time if it is any other fee!!!! **If I know client is lying I cannot put them on the stand I think 1.6(b) exception Requires the scope of the fee arrangement be communicated to the client, preferably in writing. ******( This should be done by the time the representation begins or within a reasonable time thereafter. Note: (usually three months is the limit) UNLESS the attorney has represented the same client under the same fee agreement before. Must communicate any changes to fee arrangement to client.
Witness- can only pay reasonable expenses (parking at the court house, missing time at work, gas money) - Should not be paid to tell the truth Expert Witness- You are allowed to pay a fee to be there - not a fact witness, they didnt see the crime
EXAM: Contingent
fee agreement must include:
Signature of the client, An outline of all percents for trial, appeal etc., An identification of expenses, and Whether expenses come out before or after fee computed.
Rule 3.8 When a prosecutor may file charges (Civil and Criminal) (486) Civil Case Criminal Case Reasonable belief by the prosecutor to bring a charge against the defendant (probable cause) Attorneys do not need probable cause, but instead can bring or defend a case as long as there is a non-frivolous basis in fact or law for doing so
***Prosecutor has to divulge anything that constitutes the charge against the defendant
Rules for Criminal Defense Attorneys MR 1.2(b): Attorney does not endorse the clients views by representing him. MR 6.2: Should accept court appointment unless case/client so repugnant that representation would be impaired. MR 1.16: Can decline/withdraw when clients conduct is repugnant or attorney has fundamental disagreement with it. MR 1.1: Must competently represent client. MR 1.3: Must act with reasonable diligence and promptnes s. [Also see Comment [1]].
Class 1, 8-16, MR Preamble and scope

Introduction to the Bar Admissions Process: The Florida Board of Bar Examiners (the board) consists of 12 lawyers and 3 non-lawyer public members. They make recommendations to the Supreme Court as to those qualified to practice and those who are not. Essential Eligibility Requirements Knowledge of the Law Reason and Analysis Character of Practice: Meet deadlines. Exercise candor and civility. Maintain integrity in financial matters. Avoid unethical acts. Abide by the law Criteria for Board Recommendation Educational Qualifications -graduation from an ABA-accredited for law school -passing score on the Florida Bar Examination Moral Character and Fitness -character and fitness to take the oath and perform the obligations and responsibilities of any attorney
Criteria for Board Recommendation Educational Qualifications -graduation from an ABA-accredited for law school -passing score on the Florida Bar Examination Moral Character and Fitness -character and fitness to take the oath and perform the obligations and responsibilities of any attorney Areas of Concern Frequently Encountered Lack of candor Criminal records Financial irresponsibility Untreated substance abuse and/or mental illness Lack of Candor (governing principle #1) Statements that appear on the Fla. Bar Application: 1. I further acknowledge that any false, misleading or evasive response on the foregoing application is inconsistent with the truthfulness and candor required of a practicing attorney and may be grounds for a finding by the Board of a lack of the requisite character and fitness for membership in The Florida Bar. 2. I understand that knowingly providing false information in the completion of the Application for Admission to The Florida Bar may result in denial of my application and, if discovered subsequent to admission to The Florida Bar, may result in revocation of my license to practice law in Florida. Under penalties of perjury, I declare that I have read the foregoing application and that the statements are complete and true to the best of my knowledge and belief and that I have taken an oath before a notary. (governing principle #2) Pronouncements by the Supreme Court of Florida 1. A lack of candor on the part of an applicant is intolerable and disqualifying for membership in the Bar. 2. No qualification for membership in The Florida Bar is more important than truthfulness and candor. 3. This Court will not tolerate a lack of candor from the Bar applicants. 4. the evidence of good character and rehabilitation presented by Petitioner did not sufficiently offset his lack of veracity. Criminal Records Regardless of any legal advice to the contrary, sealed or expunged criminal records must be revealed to the Florida Board of Bar Examiners Financial Irresponsibility
Examples: Failure to timely pay federal and state income taxes. Failure to deal with creditors in a responsible manner. Failure to pay child support. Writing of worthless checks. (this is not an exhaustive list)
Untreated Substance Abuse and/or Mental Illness Examples: Substance abuse, including prescription or over the counter drugs. History of public intoxication and/or DUIs. Depression, mental illness. [With conditional admission, the applicant must submit to random urinalysis tests and be monitored for at least five years.] Moral of the Story: Disclose everything. File early. Amend your law school application NOW if it will in any way contradict a full disclosure to the Bar
Class 2, 8-18, 1-22 Chapter 1

Objectives Contemplate the first of dozens of moral, ethical and professional dilemmas to be discussed this semester. Review the history of ABA codes of ethics. Predict recurring PR themes. Consider whether lawyers should be moral, immoral or amoral. Problem: Is winning the only thing? Due to the technicality of failing to name all plaintiffs in the notice of appeal, your opponents appeal is doomed. If you do nothing, you win. If you advise him to make a simple correction, you MIGHT win on the merits. Your client says do nothing. What are you going to do? Should you even tell your client about this situation? Note; When there is a dilemma you should document what you did to protect yourself and help you remember the situation Rule reference 1.0 and 1.2
Sprung and Sprung II cases Plaintiffs attorney had no duty to inform. Majority If Plaintiffs attorney had disregarded his clients direction, he risked discipline and malpractice. Concurring Lawyers should treat opposing counsel with courtesy and consideration. Dissent Plaintiffs lawyers conduct should shock all right thinking lawyers. Dissent The client has no right to require illiberal[ity]. Dissent History Of ABA Ethics Codes 1908: ABA adopted Canons of Ethics. By 1920, all but 13 states had some form of the Canons. Not enforceable until state supreme court had adopted them, usually with some changes. Canons considered fraternal admonitions. Canons interpreted by advisory opinions 1969: ABA adopted Model Code of Professional Responsibility. 1. Canons considered norms of lawyer conduct expressed in general terms. 2. Ethical Considerations were aspirational, the objectives toward which attorney should strive. 3. Disciplinary Rules were mandatory, the minimum level of practice to avoid discipline. Then Watergate happened. 1983: ABA adopted the Model Rules of Professional Conduct. Restatement format with Rules and explanatory Comments. 2002: ABA adopted amendments to the Model Rules drafted by the 2000 Ethics Commission.(what we use today) Note: The model rules are part disciplinary against (shall or shall not) and guidelines when (may, can, strive for) The model rules become the standard of care for the average competent attorney and the violation of them can be evidence can be considered for a suit of legal malpractice in a civil liability. The rules ease up on criminal defense attorneys because you are dealing with prison time and liberty rather than money, injunction etc. Immoral you know what is right or wrong and you choose to do wrong Amoral without morals, they arent there Scope [19] and [20] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. [19] The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liabilitya lawyers violation of a Rule may be evidence of breach of the standard of care. [20] Sources of PR Law Codes: Model Rules
State codes of PR Secondary Sources: Restatement of the Law Governing Lawyers Hornbooks Opinions: ABA Standing Committee on Ethics and PR State bar ethics committees. Model Rule 1.2(a) Requires attorney to follow the clients decisions about the objectives of the representation Requires the attorney to confer with the client regarding the means of achieving these objectives. Allows attorney to take impliedly authorized actions for the client. Recurring PR Themes 1. PR issues occur constantly in practice. 2. Personal morality does not prevent or solve PR dilemmas because the Model Rules often require actions inconsistent with personal morality. 3. Even reading the Model Rules does not answer all questions because they can be unclear or inconsistent.
Class 3, 8-23, 22-40

Objectives Review relationships between clients and attorneys. Advocate for and against the adversary system. Probe professionalism. The Lawyers Role Lawyers have expert knowledge. (its there product)(make client feel like they are involved. You must talk with them and not at them. Lawyers know the legal jargon. How can most clients evaluate our professional performance? Are clients treated in a manipulative and paternalistic manner? Even corporations and insurance companies who are routinely engaged in litigation and can dictate what the lawyer will or will not do and still be paid? (there is not much of a disparity between lawyer and insurance co because they make some of the rules and decisions) Definition of the Adversary System: Rather than requiring the judge to perform the functions of both investigator and arbitrator, the adversary system requires that each side investigate, introduce, and argue the evidence most favorable to its own side. (leads to justice and not the truth) note; there are policy considerations that at times justify frustrating the search for truth and the prosecution of a just claim.
In order for the attorney to remain firmly in his role and believe of his clients innocents they may not express a personal belief as to the guilt or innocence of the client Truth Oriented Model, (levels the playing field) Have more extensive pretrial discovery now. Attorneys must disclose mandatory precedent contrary to their clients position, even if the opposing attorney does not cite it. Misleading, distorting, obfuscating the facts is unacceptable. Agree that: [i]f our system were devoted to eliciting the truth above all other goals, professional responsibility would be both easy to teach and to enforce? Note: often violate personal rights in search of the truth Defense of Adversary System: Avoids inevitable rushes to judgment by investigator judges. Increases appearance that justice was accomplished since each party was provided their own advocate. Preserves presumption of innocence in criminal cases. The Adversary System: Criticisms and Questions Thomas L. Shaffer[41 Vand. L. Rev. 697 (1988)] states: the adversary ethic is a recent rationalization. lawyers should ask themselves Does your practice make people better--not just your client, but other people in the community? if the opposing advocates are of unequal talent and experience, will it lead to the correct result? What is Traditionalism? Tradition-appreciation of ones culture. Traditionalism-reverence, nostalgia for the good old days. Good Old Days: Almost no minority attorneys. Almost no female attorneys. Fee schedules that violated antitrust laws. Little to no communication with clients about the process. Purposeful attempt to use legalese so non-lawyers could not understand. Etc. Rethinking Professionalism [41 Emory L.J. 403 (1992)] The principal purpose of professionalism is to generate and maintain a core sense of self respect within lawyers individually and the bar generally. The respect of the public can be achived only after that internal effort has been successful. Six elements of professionalism:
1. An ethic of excellence. all deserve the lawyers appropriate attention and the full measure of the lawyers expertise. The ethic is a personal one in that It applies to all lawyers individually, regardless of the nature or details of their employment 2. An ethic of integrity (a responsibility to say no). professionalism demands a recognition of the long range good produced by forthright acknowledgment of the limits of the law. 3. Respect for the system and law (a responsibility to ask why). only if lawyers take seriously their special relationships to hold the law in respect themselves will others understand fully its importance 4. Respect for other lawyers and their work. because that function is based on the principles of the rule of law and its critical importance to our culture, our duty to that principle demands concomitantly that we respect the laws practitioners as well 5. A commitment to accountability. people generally accept the idea that lawyers need independence in order to provide their full value to society, but the public will continue to believe this only if lawyers respect the reciprocal social demand that they be accountable for their services. 6. Responsibility for adequate distribution of legal services. the remarkable significance of law in this country means the government, representing all of the population, has a responsibility, at a minimum, to fund courts, prosecutors, and other agencies adequately, and perhaps a broader duty to subsidize indigent legal services agencies of various kinds as well.
Class 4, 8-25, 41-62 Chapter 2

Objectives Review the history of bar associations. Compare legislative and judicial power with regard to regulating attorney conduct. Consider the applicability of federal law to state court regulation of attorneys. Discuss moral character and general fitness issues in the context of bar admission. History of Bar Associations Existed in colonial times, but died out. The Association of the Bar of the City of New York was formed in 1870. The voluntary American Bar Association was formed in 1878. North Dakota became the first state with a unified bar in 1921. Unified bars raise First Amendment issues. Legislature vs. Court Problem: The Democrat majority on City Council votes to fire the Republican City Attorney. The states legislature had previously passed a statute calling for a three-year term of office for City Attorneys.
The states supreme court has adopted Model Rule 1.16(a)(3), which says a lawyer must withdraw when fired by the client. Is the statute or the Model Rule controlling? Model Rule 1.16(a)(3) (a) Except as stated in paragraph c, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: . . . (3) the lawyer is discharged. [emphasis added] Rule reference 1.16(a)(3) Succession of Wallace (42) 574 So.2d 348 (La. 1991) 1. Issue: Whether Legislature can supersede state Supreme Courts [Model Rule] 1.16(a)(3). Requiring attorneys to withdraw when discharged by clients. 2. Holding:This [C]ourt has exclusive and plenary power to define and regulate all facets of the practice of law. 3. [T]he legislature cannot enact law defining or regulating the practice of law in any respect without this [C]ourts approval [due to ] the constitutional separation of powers. Under Model Rule 1.16(a)(3), which had been adopted by Louisiana prior to the Succession of Wallace case, the lawyer must resign because he has been discharged. Therefore, we have a conflict between a statute and a Model Rule. Courts Power to Regulate the Practice of Law Inherent Often unstated in a states constitution, but necessary to a supreme courts ability to fulfill its role as a separate branch of government. Exclusive When Court has acted, Legislature cannot. Universal Applies not just to lawyers who appear in court, but to all attorneys since all attorneys could appear in court. However, as pointed out in Succession of Wallace, courts often ratify statutes (i.e., apply them to lawyers) especially those statutes that do not deal only with the practice of law but instead with citizens or businesses in general, such as minimum wage, workers compensation, and unemployment insurance statutes. Note ; Courts have the exclusive power and the legislature cannot enact something that contradicts the court. The only way the legislature can impact what lawyers can do is if they ratify a statute
Federal Intervention and State Regulation The Loudly Protesting Attorney Consider the role of federal law and federal courts by reviewing the issues presented in paragraphs (a) to (f) as follows: (a) Antitrust Suit Against State Supreme Court Suit fails, because Supreme Court is immune from antitrust liability under the Parker v. Brown, 317 U.S. 341, state-action doctrine. Note: the government cannot be held responsible for creating a monopoly What does Anti-Trust mean? Especially as it applies to lawyers? ALL rules restricting an attorney from doing something she might otherwise do are at least somewhat anticompetitive. By preventing lawyers from doing something, we are preventing them from competing with other lawyers who offer to do the same act, and we are preventing clients from (lawfully) demanding that attorneys do it as a condition of their employment. (b) Antitrust Suit Against (Court Appointed) Board of Bar Examiners (which adopted rule without Courts direction) With regard to Court committees, the Supreme Court has required a showing that the conduct is pursuant to a clearly articulated and affirmatively expressed state policy to replace competition with regulation. The Court also has found the degree to which the statesupreme court supervises its representatives to be relevant Hoover v. Ronwin, 466 U.S. 558 (1984) ( c ) Equal Protection Suit Against Racist Board of Bar Examiners and State Supreme Court The Court is a state actor, so it is subject to suit on equal protection grounds. Under legislative immunity, the judges cannot be sued for damages under civil rights laws. Under sovereign immunity, the Court and state may be immune from a damages suit. Injunctive or other equitable relief may be obtained, if equal protection violation can be established. (d) Suit Seeking Injunction Preventing Enforcement of State Disciplinary Rules, Based upon First Amendment Rights Under abstention doctrine, federal courts wont enjoin an ongoing state disciplinary proceeding if it: (1) it is a judicial proceeding; (2) involves important state interests: and (3) permits constitutional challenges. Middlesex County, 457 U.S. 423 (1971) (e) Federal Suit Based upon First Amendment After State Disciplinary Action Against Attorney
A federal district courtlacks subject matter jurisdiction to entertain appeals from state courts. The Rooker-Feldman [abstention] doctrineis transgressed if the claim before the [federal] district court has already been determined by the state court or is inextricably intertwined with a prior state court decision. Pawlak v. Nix (E.D. Pa. 1996) (f) Preemption of Contrary State Law by Federal Statute? The McDade Amendment makes state professional responsibility rules applicable to federal prosecutors. The Sarbanes-Oxley Act requires reporting by attorneys of federal securities law violations, despite state PR rules prohibiting disclosure of client information. Rule reference 5.4(b) and 5.5(a) Lawline v. ABA
Plaintiffs were an unincorporated association of lawyers, paralegals, and laypersons that answered legal questions from the public without charge over the telephone and assisted them in representing themselves in routine legal matters. Plaintiffs also created a prototype legal delivery system subsidized by referral fees. Plaintiffs challenged ABA Model Rules of Professional Responsibility Rules 5.4(b) and 5.5(b) that prevented lawyers from forming partnerships with nonlawyers, and from assisting such persons in the unauthorized practice of law. The appellate court held that (1) defendants were immune from federal antitrust liability; (2) the assailed rules bore a rational relation to proper state goals; and (3) the rules did not violate due process, equal protection, or plaintiffs' First Amendment rights under the Civil Rights Act of 1983.
Class 5, 8-30, 62-83

Admission to Practice Objective: Debate moral character and general fitness issues in the context of bar admission. Basic Bar Admission Requirements 1. JD from ABA-approved school. 2. Register with the Bar as a law student. 3. File an application. 4. Receive Boards approval. Usually contingent on establishing moral character and general fitness. 5. Passing score on the bar exam. 6. Passing score on the MPRE. 7. Pay fees. 8. Take oath. ***Check requirements for state in which you intend to practice. Model Rule 8.1: Bar Admission and Disciplinary Matters
Prohibits one applying to become an attorney from knowingly misstating an important fact (subsection (a)). And requires such a person to correct bar authorities mistaken impressions regarding facts and to answer legal requests for data from bar authorities (subsection (b)).
Rule reference 8.1 In re Mustafa 631 A.2d 45 (D.C. Ct. App. 1993) In order to gain admission to the Bar, an applicant must demonstrate by clear and convincing evidence, that the applicant possess[es] good moral character and general fitness to practice law There is no doubt that an attorney who mismanages the funds of a client will ordinarily face disbarment. Similarly, an attorney convicted of a crime involving moral turpitude faces automatic disbarment. Missouri Supreme court rules When someone is convicted of crimes involving moral turpitude. Such persons may not apply for admission to the bar until 5 years after the date of successful completion of any sentence or period of probation as a result of the conviction, plea, or finding of guilt. Even after the 5 years have expired, persons must show , in addition to all other requirements for admission that: 1) The criminal action is over 2) That any person injured as a result of the criminal conduct has recovered restitution or, if not, is notified in advance of filing of the applicants application 3) Any special condition attached to a criminal sanction or probation have been satisfied; and 4) That the best interests of the public are served by the applicants admission Unpopular or Repugnant Views Baird v. state bar of Arizona case: Applicant refused to disclose whether she had been a member of the Communist Party. Held that those views and beliefs were immune from bar associations questions for the purpose of barring applicant from the practice of law. Note: Views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law Moral of the Story Disclose problematic informationbecause non-disclosure causes you even more problems The Unauthorized Practice of Law Objectives: 1. Compare definitions of the practice of law.
2. Emphasize that even lawyers can run afoul of restrictions against unauthorized practice of law. 3. Consider kits, forms and manuals. 4. Discuss pro se representation. 5. Review multi-jdx practice issues
Comment [2] to Model Rule 5.5 Each jurisdiction defines the practice of law, so the definition varies from state to state. States deem that limiting the practice of law to attorneys protects the public. To the public, it may appear that we are protecting ourselves (i.e. our monopoly). Defining The Practice of Law The definitions and tests employed by courts to delineate unauthorized practice by nonlawyers have been vague or conclusory. American Law Institute, Restatement (2000). The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law. ABA/BNA Lawyers Manual on Professional Conduct (2002). Rule reference 5.5(a) United States v. Johnson 327 F.3d 538 (7th Cir. 2003) In Illinois, the practice of law includes, at a minimum, representation provided in court proceedings along with any services rendered out of court More generally, providing any advice or other services requiring the use of any legal skill or knowledge,the legal effect of which, under the facts and conditions involved, must be carefully determined, amounts to practicing law. Model Rule 5.5 Prohibits an attorney from illegally practicing in a state from which she is not licensed. Prevents an attorney from helping a non-attorney in the unauthorized practice of law. Practice Pointer: Be careful about helping former (i.e. disbarred) lawyers, your license is at risk. Comment [2] to Model Rule 5.5 Allows attorneys to hire legal assistants when there is adequate attorney supervision. Comment [3] to Model Rule 5.5 Attorneys may advise people working in positions requiring some knowledge of the law, such as banking, insurance, social work, and accounting as well as independent non-attorney paraprofessionals who are allowed by a jurisdictions laws to provide law-related services. Kits, Forms and Manuals
The selling of kits, forms and manuals with general advice is not the practice of law. Providing advice to a specific client is the practice of law. (cannot be done unless by a lawyer)
Pro Se Non-attorneys can, for themselves, do just about anything attorneys can do for others, including: Represent themselves in court. Draft documents. Corporations (artificial entities) cannot appear pro se because no one person is the entity. Some statutory exceptions may exist. Practice realities: Judge may give pro se litigants breaks. Pro se litigants can make cases very difficult for opposing attorneys. Comment [3] to Model Rule 5.5 Allows attorneys to advise non-attorneys who are representing themselves without counsel of record. Multijurisdictional Practice Lawyers cannot: practice outside state in which they are licensed, set up an office out of state, state or imply they are authorized to practice outside of state in which they are licensed. Model Rule 5.5 Lawyers can: Practice temporarily in another jurisdiction in association with an attorney licensed to practice there who actively participates in the matter. Provide temporary legal services out of state that arise out of litigation within their state or another jurisdiction. Provide legal services related to an ADR matter arising out of the attorneys practice in his jurisdiction (as long as jurisdiction does not require pro hac vice admission). Provide temporary legal services out of state that are reasonably related to the attorneys practice where she is licensed. Provide legal services out of state to the lawyers employer. Provide legal services out of state where authorized by federal or local law. Rule reference 5.5 Richards & Oneil, LLP v. conk
The shareholder alleged that he was damaged when a dispute arose from his sale of stock. The shareholder claimed that he had relied on representations and opinions relating to the financial condition of the corporation and relating to the agreement for sale of the stock. The lawyer and law firm were located in New York, and argued that Indiana lacked personal jurisdiction over them. The appellate court ruled that while a single contact with a forum state may have been enough to establish jurisdiction, a defendant's conduct needed to create a substantial connection with the forum state and the acts needed to be purposeful, not random, fortuitous, or attenuated contact. Neither the lawyer nor the law firm had sufficient contacts with Indiana to confer jurisdiction. The opinion letter at issue was prepared in New York. The shareholder was a resident of Texas. The financial officer argued that a release the shareholder signed barred his claims. An exculpatory clause was unenforceable when the misconduct at issue involved willful or
grossly negligent acts. The shareholder's complaint raised claims against the financial officer which all involved willful or grossly negligent acts.
Class 6, 9-1, 83-112

Objectives Outline the disciplinary system. Identify circumstances in which an attorney must report misconduct by an attorney or judge. Consider the professional responsibility of lawyers serving as subordinates and bosses. Review other issues related to the practice of law. The Disciplinary System-PP The key element of a disciplinary system is a fact-finding hearing process. Fact-finding entities often have lay members. They can vary from state to state, especially regarding confidentiality. Protection of the public is the overriding goal, not procedural fairness.
DISCIPLINARY DUE PROCESS-PP In quasi-criminal proceedings, the lawyer is entitled to procedural due process. Which included fair notice of the charge. In re Ruffalo, 390 U.S. 544 (1968). However, the criminal laws presumption of innocence does not apply; the criminal laws proof beyond a reasonable doubt does not apply; the confrontation requirement do not apply, so documents from other proceedings may be admitted, and there is limited due process. Rosenthal v. Justices of the Supreme Court of California, 910 F.2d 561 (9th Cir.1990).
***Model Rule 8.1: Bar Admission and Disciplinary Matters-PP

Requires an attorney, in conjunction with a disciplinary hearing to: Refrain from knowingly misstating facts [subsection (1)], And correct mistaken factual impressions and respond to legal requests for information, EXCEPT for confidential information protected by MR 1.6 as to attorney client privilege [subsection (2)]. Potential Sanctions for Attorney Misconduct-PP (R-DRIPS ***) 1. Disbarment (permanent or for set number of years after which attorney can reapply--freq. 5 yrs.). They can make you take the bar again, no guarantee they will readmit you 2. Suspension (indefinitely or for set amount of time).note: you dont have to reapply to the bar 3. Reprimand/public censure. 4. Interim suspension pending final resolution of some matter. Seen most often by attorney with substance abuse-drug program, testing
5. Probation (subject to supervision by another attorney, re-passing the MPRE, obtaining periodic physical or mental health evaluations). Most often by violating clients trust BUT NOT to the level of stealing money, more like not answering phone calls, not filing papers You can still practice but another lawyer has to sign off on you or could make you retake the MPRE, mental evaluations 6. Restitution and repayment of costs. least severe penalty- problem with bookkeeping Often money problems with your money and the clients money comingling (together).
Model Rule 8.5: Disciplinary Authority; Choice of Law

An attorney can be disciplined by a jurisdiction that licenses the attorney, even if the attorneys conduct occurred elsewhere; An out-of-state attorney can be disciplined for actions taken in the jurisdiction at hand; An attorney can be disciplined by more than one jurisdiction for the same conduct. (dif states) If alleged misconduct is related to pending litigation, an attorneys conduct is controlled by the law of the jurisdiction where the litigation is pending. Some jurisdictions require attorneys to report sanctions entered by another jurisdiction. Attorneys admitted pro hac vice are subject to same disciplinary rules. Pro hac viche for this occasion, lawyer can go practice in a state again and file the documentation w the court for that particular hearing. You do not have to associate yourself w a lawyer from that court For conduct outside of litigation: An attorneys conduct is controlled by the law of the place of the attorneys conduct; Unless the conduct has its predominant effect in another jurisdiction. Butthere is a safe harbor when an attorney reasonably believes that the conduct at issue has its predominant effect in a jurisdiction that permits the conduct. If you reasonably believe the effect would only have occurred in Gerorgia and it was allow in Georgia then you MAY have a safety hatch but not 100% Note: The state can discipline you no matter where or when you screw up. (practice of law or not) example stealing a coke in north Carolina. If you co-counsel in Georgia when you are licensed in Florida and you screw up. Georgia and Florida can both bring actions against you
****Duty to Report Misconduct: Model Rule 8.3

The general reporting obligations do not apply to: Information received which is protected by the attorney client privilege; Information received by attorneys or judges participating in an approved lawyers assistance program.
***Model Rule 1.6 is the KING of modern
In Re Ethics Advisory Panel Opinion (85)*** Pursuant to Rule 1.6, an attorney shall NOT REVEAL information relating to representation of a client UNLESS the client consents after consultation, except for disclosures that are impliedly authorized. Here, the client did not give attorney authority to inquiring attorney to tell of attorney Xs (stole money) embezzlement because of fear his funds would not be replaced. (Client was paid back).
Model Rule 8.3-I shall report misconduct Model Rule 1.6- The information through a client is protected- 1.6 wins
Rule reference 8.3 and 8.5 In re Advisory Opinion No. 92-1 627 A.2d 317 (R.I. 1993) Unlike Himmel, this Court found information related to the representation of a client was protected, not merely information directly derived from the client. But this Court was very concerned that the lawyer has engaged in conduct that was criminal as well as in violation of the Model Rules. This failure fuels the perception that under a cloak of confidentiality, the legal profession is engaged in a cover-up of attorney misconduct. Law Firms Model Rule 1.0 Terminology Firm and law firm include: All traditional private practices, Legal services organizations (like Legal Aid), And corporate and other organizational legal departments.
****Model Rule 5.4: Professional Independence of a Lawyer*****

Fees Prevents an attorney from sharing fees with a non-attorney except: When a deceased attorneys partners and associates share fees with the deceaseds estate or one or more specified persons [subsection (1)]. When an attorney buys a deceased, disabled, or disappeared attorneys practice [subsection (2)]. Allows fee sharing with a non-attorney law firm employee pursuant to a profit sharing plan. Payment of salaries to employees of a firm are not considered the sharing of legal fees. Allows sharing of a fee awarded as part of a judgment with a nonprofit that hired or recommended the attorney.
(MR 5.4(a)(3) and (4)) Forbids an attorney from forming a partnership with a non-attorney if the partnership practices law to any extent. Prohibits law firms from being formulated as professional corporations or associations if: Any interest is owned by a non-attorney, A non-attorney is director, officer, etc., Or a non-attorney can direct or control professional judgment of an attorney. MR. 5.4(b) and (d) Rule reference 1.0(c), 1.8(h), 5.4, 5.7, 5.2, 5.1, 5.3, 5.6, 1.17 Henderson V. HSI Financial Services, Inc. (93) In 1985 HIS Financial services, and Joseph Page entered into a K for Page to collect past due hospital accounts for HSI Financial Service. In 1990, the firm became deliquent in remitting funds due to HIS from collection activities. HIS sued the corporation and Page, Henderson, and Levy individually Law firms can incorporate pursuant to laws of that jurisdiction. Individual partners are protected from personal liability of other partners misconduct within the law firm. Corporate assets still available to protect clients who sue for malpractice. What is a professional corporation called in Florida? Professional association (PA) Outcome: Henderson and Sevy are NOT JOINTLY LIABLE for the professional misconduct of Page in failing to pay HIS the monies collected on its account.
Interesting Questions Lawyers may provide law related services Is every limited liability law firm required to have each of its clients represented by independent counsel? MR 1.8(h)(1) Can nurses or paralegals review medical records, videotape clients, prepare exhibits? Yes, but under supervision, they can be paid Can investigators be hired? How about CPAs? yes, because its law related - MR 5.7(a) and (b) Associates and Supervisors Generally all attorneys, even associates, are responsible for their own conduct. MR 5.2(a) Limited Exception in MR 5.2(b): Subordinate may be exempt if took action based upon a reasonable resolution of an arguable question (the answer DOES NOT exist) of professional duty by a supervisory attorney. Jacobson v. Knepper & Moga, P.C., (101) NO
ISSUE: If an associate is fired for blowing the whistle on the law firms misconduct, can s/he sue for wrongful termination? (Depends on jurisdiction, but here its no) NO, because the Model Rules require attorneys to avoid misconduct, so there is no public policy need to allow attorneys to file retaliatory discharge actions. 706 N.E.2d 491 (Ill. 1998). Because P possessed unprivileged knowledge of fraud, deceit, or misrepresentation, he was required to report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation Rule 8.3 Dissent. Todays opinion serves as yet another reminder to the attorneys in this state [Illinois] that, in certain circumstances, it is economically more advantageous to keep quiet than to follow the dictates of the Rules of Professional Conduct. Jacobson (P) learned the D was filing actions in violation of the venue provisions P alleges he had been discharged in retaliation for his insistence that the firm cease its practice of filing consumer debt collection actions in the wrong venue. To establish Cause of Action for Retaliatory Discharge 1. P must show he was discharged in retaliation for his activities, and 2. The discharge is in contravention of a clearly mandated public policy
Wieder Case (104) different jurisdiction than Jacobson Would answer the question YES as to a wrongful termination suit because every attorney employment contract carries an implied agreement to practice law ethically. Problem If an in house attorney is fired for refusing to engage in misconduct, can s/he sue the corporation? NO. Balla case. YES. Crews case. (104) Court held house counsel was also an employee of the corporation and could bring a retaliatory discharge action after being fired for reporting to the board of examiners that her supervisor was not licensed to practice law in Teneessee. In addition, the discharged lawyer could reveal confidential client information to sustain the claim. BUT, even if suit is allowed, the attorney must withdraw from representing the corporate client when discharged by the client, so reinstatement is not an available remedy. General Dynamics case. Question Must a supervisory attorney: Make sure other attorneys follow Model Rules? YES Remedy misconduct when discovered? YES Manage non-attorney employees behavior and report non-employees misconduct? What if an attorney orders or ratifies misconduct? Can they be subject to discipline? YES Look at MRs 5.1 and 5.3
Questions Can a firm limit an attorney who leaves from practicing? NO Can a law firm be sold? Only in its entirerty, you cannot pick it a part. Look at MRs 5.6 and 1.17
Jacob (P) v. Norris, McLaughlin and Marcus (105) - 5.6 (Financial disincentive provisions are unenforceable) Rule 5.6 Prohibits lawyers from making employment agreements that restrict the practice of law. EXCEPTIONS: include retirment benefits - P filed suit against NMM, arguing that the competitive-departure provisions were void as against public policy because they violated Rule - HOLDING: The agreements competitive departure provision restricts the practice of law (Rule 5.6). P are entitled to the same compensation as those attorneys whose departure is non-competitive. Service Termination Agreement Clause stated: that bars Ps from collecting termination compensation IF they continued to represent 1. Firm clients or 2. Solicit firm attorneys or other paraprofessionals with a year of their departure. (P left and took number of associates, a paralegal, and clients Pro Hac Vice: - Admission takes place when a non-admitted lawyer is permitted by court to practice before that court is connection with a particular matter. -
Chapter 3 Attorney-Client Relationship, 9-8, 113-138

Objectives 1. Briefly review the Supreme Courts attorney advertising jurisprudence. 2. Look at the MRs restrictions on attorney advertising and other communications about legal services. 3. Discover how easy it is to establish an attorney/client relationship. 4. Consider the extent to which a court can force an attorney to represent someone. 5. Pro bono, limited representation and identification of the client. Problem: pg. 114-PP Open your own office out of law school. You have No clients.
Decide to advertise. 1-800-LAWSUIT- Can you have as a phone number? It most jurisdiction would allow as long as its not misleading (It wouldnt be considered advertising, because you can make a name out of numbers) States vary hugely in decision. In Florida an add may only contain a blank wall or law books Ads on TV, radio, newspaper, web page The ad cant be misleading or imply things like you are connected to the gov, or work for a charity. EX: I advertise on TV and say I have never lost a class action suit in my life, but leave out that you have never tried a class action suit. We are not allowed to have real clients or celebrity endorsements EX: If a real client says you won them $1 Million, then a new client would think you could do the same. Firm name: The Suit Shop Can lawyer Sponsor T-ball team who wears firm name on back of shirt? It has to have the name of the lawyer and the address Write directly to accident victims and people whove been arrested offering your services. In Florida you have to wait a certain amount of time to send out a letter after an accident Client has class action suit regarding discrimination case? Depends on jurisdiction
Comment [1] to MR 7.2: Advertising**************

This Comment is an implied history lesson: State bar associations vigorously protested any form of attorney advertising, i.e. the active quest for clients. U.S. Supreme Court allowed. ABA adopted the Supreme Courts emphasis about informing the public, especially those with limited means although they remained concerned about dishonest and overreaching advertising. Firms get away with having one room in a big city and say its an office which allows them to advertise in those big cities. This comment shows ABA not happy with decision- they did not want advertising
******Note: 7.2(c) requires they include attorney name and address and also that it not be misleading. Advertising - Directed towards public as a whole (usually TV, radio) Solicitation - Usually means one on one face to face contac
Rule reference 7.1, 7.2, 7.3, 7.4, 7.5
Florida Bar v. Went For It, Inc. 515 U.S. 618 (1995) History: Florida Bar prohibited injury lawyers from sending targeted direct mailing solicitation to disaster victims for 30 days. Invaded privacy of grieving or injured persons and reflected badly on profession. Law: Lawyer advertising is commercial speech protected by the First Amendment First Amendment protection is not absolute- does not protect lawyers It is commercial speech and the advertisement can be regulated It may be regulated to avoid unlawful or misleading assertions. ****Attorney speech/advertising may be regulated if three prong test met: 1. Government must show a substantial interest in support of its regulation. 2. The restriction must be shown to directly and materially advance that interest. 3. The regulation must be narrowly drawn. Holding: Floridas 30-day restriction withstands three-prong scrutiny. 3 Prong Test 1. Florida Bar has substantial interest in protecting disaster victims and protecting reputation of profession. (Lawyers, are receiving a bad name, intrusive to victims) 2. The Bar presented evidence the potential harm existed. (106 page 2 year study of lawyer advertising and solicitation) 3. The restriction was narrowly drawn (30 days was a window, not completely barred). (note only applies towards accident victims, not criminals)
MR 7.1: Communications Concerning a Lawyers Services-PP Applies to ALL communications, not limited to advertising. Prohibits false or misleading information* (materially misrepresenting facts) about the attorney or his/her services. Or omitting facts needed to prevent false or misleading impressions. ***Unjustified expectation about results, comparing oneself to other lawyers, implying an ability to improperly influence an official. MR 7.2: Variation from state to state MR 7.2 allows all forms of advertising as long as they comply with restrictions in MR 7.1 and 7.3 and include one attorneys or the firms name and address An attorney cannot compensate those who recommend them him/her BUT ALLOWS: 1. Payment of standard ad costs 2. Payment to qualified lawyer referral service or prepaid legal services 3. Purchase of a law practice 4. Referrals from attorney to attorney if not an exclusive arrangement
and client is told. MR 7.3: Direct Contact with Prospective Clients Prohibits live phone calls, in-person contact and real-time electronic contact when the motive is to secure clients for the attorneys pecuniary gain. Except for family, close personal friends or prior clients. All contact prohibited when person has informed attorney they do not wish to be contacted or when contact involves coercion, duress or harassment. All envelopes must say Advertising Material. (Exact words vary from state to state.) Recorded or electronic ads must begin and end with Advertising Material unless to family, close friends or prior clients. Attorneys may participate in legal service plans. MR 7.4: Communication of Fields of Practice and Specialization You can only say you are a specialist in a particular field of law if you are certified by an accredited or bar approved organization and name that organization in your communication. You may say you practice in a particular field. ( i.e. Patent Attorney or Admiralty Attorney, if qualified.) You can only say you are a specialist in a particular field of law if you are certified by an accredited or bar approved organization and name that organization in your communication. You may say you practice in a particular field. ( i.e. Patent Attorney or Admiralty Attorney, if qualified.) You can only say you are a specialist in a particular field of law if you are certified by an accredited or bar approved organization and name that organization in your communication. You may say you practice in a particular field. ( i.e. Patent Attorney or Admiralty Attorney, if qualified.) MR 7.5: Firm Names and Letterheads You may not use a false or misleading name but may use trade names that do not suggest a connection to a charitable, public or government entity. May use same name in multiple states but must indicate where listed attorneys are admitted to practice. If an attorney holds a public office, they may not be included in the firm name. You can only claim to be a partnership or organization if that is true. Duties to Prospective Clients Some duties exist, even to prospective clients that you do not eventually represent. MR 1.18: Duties to Prospective Clients (Cant turn down client and take the opposing partys side) If you meet with a prospective client and learn potentially harmful information, neither you nor your partners can represent someone else with materially adverse interests in the same or a substantially related matter. If you have a conflict you cannot refer them to someone else
Unless: All parties or prospective clients provide written consent, or You take measures to avoid receiving disqualifying information, screen any information from your partners and notify the prospective client. ***Note: Advertising is to the population as a whole Solicitation is going after one person Commercial speech protected under the 1st amendment can be regulated
Establishing the Attorney/Client Relationship (121)

Once the client asks the lawyer to render services, and the lawyer renders them, there is an attorney client relationship. MR Scope Note [17]. Even legal opinions equal the rendering of legal services. So once someone asks your opinion and you give it to them, an attorney client relationship exists.
****Note: If someone comes into your office and tells you their situation, then you have established an
attorney client relationship, you must follow up w letter that states you will do one of the following; ***Investigate, accept, wont represent ****If you ever represent Wal-Mart then you cannot represent any Plaintiff who has a suit against them ****If you give specific advice to an individual then you have established an attorney client relationship ***Giving an opinion or advice is considered rendering services ***If you recommend another attorney then you can be liable if they screw up. Rule reference 1.18, 1.16, 1.2, 6.2, and 6.1 Togstad v. Vesely, Otto Miller & Keefe- 122 291 N.W.2d 686 (Minn. 1980) Issue: Was there an attorney-client relationship between the wife and the attorney? Facts: Mr. Togstad began to experience severe headaches and was admitted to Methodist Hospital where tests disclosed a large aneurism. Dr. Blake, a neurologist treated the condition by applying a Selverstone clamp to the left common carotid artery. Also, a nurse gave him the wrong medication which could have caused Togstad was now severely paralyzed in his right arm and leg and unable to speak. Ms. Togstad Met with attorney Jerre Miller regarding her husbands condition. Ms. Togstad told Miller everything that happened at the hospital including the nurses statements. At the end of the meeting Miller said he did not think we had a legal case, however he was going to discuss this with his partner. She understood if Miller changed his mind after talking to his partner, he would call her
Ms. Togstad did not consult another attorney until a year later because of her reliance on Millers legal advice that they did not have a case Findings: Jury said yes there was a relationship and then tried the case with the husband and awarded husband $610,500 and wife $39.000. Minn. Sup. Ct. affirmed.
Practice Pointer-PP Be wary of giving friends and family free advice because you are creating attorney/client relationships.
Declining, Terminating or Limiting Representation************

After meeting with prospective client that you will not represent, write a non-engagement letter. MR 1.16 If you are undertaking representation, write letter specifying exactly what you will or will not do. MR 1.2 Can the court force you to represent a client? According to MR 6.2, you can only avoid court appointment for good cause, unreasonable financial burden or when case or client is so repugnant to attorney, representation would be impaired. Good cause exists if representation would lead to a violation of the Model Rules, other professional responsibility or other legal violation. MR 1.2: Scope of Representation (b) An attorney does not endorse the clients political, economic, social or moral views or activities simply by representing that client. MR 6.1: Pro Bono Aspiration to give 50 pro bono hours per year. Professional Responsibility duty to provide legal services to those who cannot pay. Prof. Millard will discuss more next month. Identifying the Client Look at MR 1.13: Organization as the Client. Organizations attorney represents the organization. The organization acts through its authorized personnel. Attorney must protect the organization from employee not acting in organizations best interest. Must refer matter to organizations leaders. If still not resolved, attorney may reveal otherwise confidential information if there is a clear violation of the law reasonably certain to result in substantial injury to the organization
Rule reference 1.13 and 1.8(f) Greate bay hotel and casino v. City of Atlantic City
Issue - whetere there was a client relationship between Intervenor corporate lessee and Platiniff Greate Bay
Hotel and Casino

- Plaintiff hotel and intervenor casino sought disqualification of intervenor corporate lessee's law firm, claiming that the law firm represented plaintiff and intervenor casino in their capacity as members and co-trustees of various trusts. - Intervenor corporate lessee contended that there was no adverse client relationship involved because the law firm's representation with respect to the trusts was covered by N.J. Ct. R., R. Prof. Conduct 1.13. Rule 1.13 stated that a lawyer employed or retained to represent an organization represented the organization as distinct from its members. The court held that the trusts were of such a character to warrant the status of unincorporated associations that qualified as organizations as the term was used in rule 1.13. Outcome: Therefore, because the law firm represented the trusts and not the trust members individually, it did not represent plaintiff hotel and intervener casino. The court found that there was no conflict pursuant to rule 1.7 and the motions to disqualify were denied.
Class 8, 9-13, 138-158

Objectives Ascertain the appropriate division of authority between client and attorney. Emphasize the seriousness of any violation of restrictions regarding client funds and property. Learn the basic accounting principles and ethical restrictions regarding trust funds. Briefly note IOLTA rules. The Attorney/Client Relationship Authority Within the Relationship Point/Counterpoint Problem: The Badgering Client Does an attorney engage in misconduct by refusing to undertake the following unnecessary actions (requested by the client)? Subpoenaing the Plaintiffs tax records? Deposing the Plaintiff? Seeking a change of venue? What if client says, I am the boss, so do what I tell you unless it is absolutely forbidden? Note: The steps to get to the objective is within the lawyers expertise and therefore should have the say in what to do MR 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer
Prohibits an attorney from counseling or assisting a client in criminal or fraudulent actions, but allows an attorney to: Explain the legal consequences of the clients planned actions to the client And help a client gauge the validity, scope meaning or application of the law. Note: You cannot assist in or counsel a crime. MR 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer Requires an attorney to follow the clients decisions about the objectives of the representation And to confer with the client regarding the means of achieving these objectives, But allows an attorney to take impliedly authorized actions for the client. The scope of the representation can be limited with the clients informed consent. MR 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer An attorney is required to follow the clients wishes regarding settlement of a matter. ****In a criminal case, the attorney must consult with the client but allow the client to decide: 1. What plea to enter; 2. Whether to demand or waive a jury trial; and 3. Whether to testify at trial. MR 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer An attorney is required to follow the clients wishes regarding settlement of a matter. In a criminal case, the attorney must consult with the client but allow the client to decide: What plea to enter; Whether to demand or waive a jury trial; and Whether to testify at trial. Comment [2] to MR 1.2 (Vague, doesnt help us sometimes) An attorney and client may disagree at times. The client usually defers to the attorneys special knowledge and skill. Attorney should generally allow the client to decide issues regarding expenses and concerns for third parties that might be affected. MR 1.2 does not tell us how all these disagreements might be resolved. If cant resolve, attorney may withdraw pursuant to MR 1.16(b)(4) if fundamental disagreement. Or client can fire attorney. Rules 1.2 and 1.14 New England Educational Training Service, Inc. v. Silver Street Partnership(D) (139) 528 A.2d 117 (Vt. 1987) Facts
D is the record owner of a parcel of real estate encumbered by a mortgage in favor of the P. D argues that any agreements reach by the parties attorneys were unenforceable because it (the D) had not expressly authorized any agreement. ISSUE: Whetere the Ds attorneys could bind his client by agreeing to pay P $60,000 in settlement of Ps claim. Agency Law: Types of Authority- The attorney client relationship is governed by the law of agency Express: Authority actually given to attorney by the client. Implied: Actual authority implied from the circumstances. Book: Implied- actual authority circumstantially proven from the facts and circumstances attending the transaction in question. Can look at the customs and from the relations of the parties. Court: [R]etention of an attorney to represent ones interest in a dispute, with instructions to conduct settlement negotiations, without more, does not confer implied authority to reach an agreement binding on the client. **An attorney does not have implied authority to reach a binding agreement. An attorney has no authority to compromise or settle his clients claim without clients permission ***When it comes to settlement YOU ALWAYS want your clients permission to settle and you want a letter signed by your client. Apparent Authority -
Derives from the conduct of the principal, communicated or manifested to the 3rd party, which reasonably leads the 3rd party to rely on the agents authority.
Practice Pointer******* NEVER make a settlement commitment without your clients authority to do so!!!!! If there are limitations on your authority, make them known to your opponent before reaching a final settlement. If your client insists on specific settlement terms, bring a written form that contains those terms to the mediation or settlement conference. MR 1.14: Client..with Diminished Capacity (treat impaired client as a normal client) If a clients ability to make decisions is diminished due to minority, mental impairment, or other causes, the attorney is permitted to take reasonably necessary protective action. This includes consulting with persons or groups that could protect the client or pursuing an appointment of a guardian ad litem, conservator or guardian. The attorney/client privilege still exists, but client information can be disclosed to the extent reasonably necessary to protect the clients interests. Note: Before mediation you need to talk specifically what they do and dont want. *******EXAM The Trust Account The quickest way to lose your license is to mess with the client trust account!
****Note: The misuse of clients funds result in disbarment (not automatic) most courts however reserve the disbarment for cases in which the lawyer uses the clients funds for the lawyers own benefit Rule 1.15 In re Wilson 409 A.2d 1153 (N.J. 1979) Facts: Respondent KNOWINGLY used his clients money as if it were his own. He was disbarred. The confidence [that clients have in attorneys, which leads to entrustment of funds] is so important that mitigating factors will rarely override the requirement of disbarment If public confidence is destroyed, the bench and bar will be crippled institutions. Lawyer Sanctions for Failing to Preserve the Clients Property 1. Disbarment if knowingly converts clients property and causes injury or potential injury. 2. Suspension if lawyer knows or should have known she is improperly dealing with clients property and causes injury or potential injury. 3. Reprimand when negligent in dealing with clients property and causes injury or potential injury. 4. Admonition (not intent) when negligent in dealing with clients property and no or little actual client harm. MR 1.15: Safekeeping Property Can deposit advance payments of expenses and fees into client trust account and remove them when expenses incurred or fees earned. Can deposit your own funds into the client trust account to cover bank fees, but no more. If receive settlement check or other funds: Notify client promptly. Promptly deliver clients funds to client. Promptly provide an accounting of the property. ***** We get a settlement of $100,000. I think I am owed 40%, client says no you told me verbally that it was %20. I have to immediately give client the 60%, which is $60,000 because it is not in dispute. You could get math problems on MPRE. Have to give the clients the funds not in dispute. MR 1.15: Safekeeping Property Can deposit advance payments of expenses and fees into client trust account and remove them when expenses incurred or fees earned. Can deposit your own funds into the client trust account to cover bank fees, but no more. If receive settlement check or other funds: Notify client promptly. Promptly deliver clients funds to client. Promptly provide an accounting of the property. MR 1.15: Safekeeping Property
If disagreement over ownership of funds: Keep disputed funds separated until resolved. Deliver all undisputed funds promptly to the client. Accounting Tips Never use a clients funds to satisfy another clients obligations or your own. Maintain a separate client ledger sheet for each client. Wait for deposited checks to clear the bank before writing related checks. All client funds must be deposited into a bank account. Maintain all records. There can never be a negative balance.*********** Note: The bar can audit client accounts at any time. Negative balances only happen when you take clients money. **To maintain individualism in accounting is to Establish separate passbook accounts for each client BUT it is neither unethical NOR illegal for lawyers to deposit funds in a single bank account. Trust Account Problem start an account ledger for the new client, put in interest bearing account. If the client can earn interest then you are obligated to put it in an interest bearing account. A personal injury client gives you a check for $1,500 as an advance against expenses. What can and should you do with it? Immediately deposit it in trust account 1. Interest bearing account Put the $1500 in an interest account because its a retainer against cost, which means it will probably be in the account awhile. Has potential to earn interest. 2. Non-Interest bearing account If the check is going to be in and out quickly maybe 5 days or 10 at the most or if its a small amount. The interest you make will be less than the bank charge. The next day, the treating physician tells you it will cost $550 for a report and $250 for copies of medical records. o How should you pay for these? 550 for Dr. report and 250 for medical records. You must write a check w the client ledger number to pay it. Then subtract from the account for the records What records should you keep? Keep a record of every penny spent. You should be able to get it to the client immediately. You receive a settlement check for $150,000 made payable to you and the client. both signatures must be on the check o What can and should you do with it? 150k for you and client, put in non interest bearing account because the funds will be removed immediately and notify client it is in, and subtract your expenses from it. o ****BUT if there is a dispute over lawyer payment, then give the client the nonargumentative amount of money owed and then take the money in dispute and put in an interest bearing account.
After you write the checks out of the trust account to the client and to you, the settlement check bounces. Now what happens? Bounced check, you wait for it to clear and then put it in the iolta account, then you pay costs after it clears. Never give client check until you verify with the bank the money has cleared.
IOLTA Interest on lawyer trust accounts Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003). (150)
*****Court determined that the State of Washington may seize private property, without paying compensation, on the ground that the former owners suffered NO NET LOSS because their confiscated property was created by the beneficence of a state regulatory program. States use interest on lawyers trust accounts (IOLTA) to pay for legal services for the needy. Most IOLTA programs created by state supreme court pursuant to its authority to regulate the practice of the law [a few created by statute]. Requires lawyers to deposit client funds in non-IOLTA accounts when the funds could earn net earnings for the client. Just Compensation In Re Grubb (157) Grubb took possession of a ring as security for fees to represent a crminal defendant with a document estimating the fmv. - Grubb agreed to represent the D, but the D later chose to be represented by a public defender and Grubb withdrew. - Grubb lost the ring because he carried it around with him, D wanted the ring back in exchange for the $500 nonrefundable retainer. - Court: He was reprimanded Safeguarding Tangible Personal Property (as well as money) MR 1.15 applies to both client funds and client property and requires: Separation of client/attorney property, Identification of client property as such, Appropriate safeguarding of client property, Notification to the client when property received, Prompt delivery of property to client, Full accounting when requested; and Retention of property in dispute. -
Class 9, 9-15, 158 -189

Objectives Explore the reasonableness requirement and other MR 1.5 provisions regarding attorneys fees.
Consider the issues raised by hourly fees and alternatives to hourly fees. Ponder problems arising from contingent fee arrangements. Discuss division of fees among attorneys. Problem: p.160-61 A. Is fee reasonable? B. Is the extra services billing reasonable? - If you are in NY and lawyers normally bill $2,000/hour- that is reasonable although it may not be reasonable in Boondock, Egypt C. Is it reasonable to bill two clients for same time?
NO, the court does not like you to double bill

MR 1.5: Fees******* Prohibits an attorney from reaching an agreement, charging, or collecting an unreasonable fee or an unreasonable amount for expenses. MR 1.5: Fees***** Factors that determine fee reasonableness may include: 1. Hours and effort spent, 2. Novelty and difficulty, 3. Skill needed by attorney 4. Attorneys inability to take on other cases, 5. Local customary fees, 6. Amount involved and results obtained, 7. Time constraints created by client or circumstances, 8. Relationship of client/attorney, 9. Attorneys reputation, experience and ability; and 10. Whether attorney agreed to contingent fee. Rule reference 1.5 Fourchon Docks, Inc. v. Milchem, Inc. 849 F.2d 1561 (5th Cir. 1988) [B]ecause of a prohibition in Louisianas Code of Professional Responsibility against a lawyers collecting a clearly excessive fee, courts may inquire into the reasonableness of a fee. The trial courts apparent formula for calculating the final fee award, multiplying the attorney work hours worked by an hourly rate it deemed reasonable, did not abuse the broad discretion accorded him in setting fees. Multiplying hours x an hourly rate is called a lodestar approach.
We also find no error in his failure expressly to consider all eight [section] 1.5(a) factors because the language of that provision as well as the interpretive state court decisions have held that the guidelines are permissive and that consideration of them all is not mandatory. Reasonable Attorney Fees Even if the original agreement is reasonable, unanticipated subsequent events can render the agreed upon fee unreasonable. If a fee agreement is NOT reached at the outset of the representation, there may be a conflict of interest later, so fair value may be the standard. Many states now encourage fee arbitration. Under the American Rule, each party usually pays its own attorneys absent a statute or contract to the contrary. Note: EX: If you spend 20 hours on a case but your contingent fee is 40% of the $2 million what do you do? Sometimes there are clauses that you would reduce your fee to 25% across the. - The point is to work with your client. Practice Pointer*** Make every attempt to avoid having a court determine your fees. Avoid suing your client for fees because they will countersue you for malpractice. This is one reason retainers are popular. Retainers**** In a true retainer the client pays the attorney to remain ready to provide services, not for the actual provision of services. Because the attorney is not required to perform services to earn the retainer, s/he need not deposit it into a trust account. (Deposit into an interest bearing account) A true retainer can be unreasonable. If the retainer is an advance against future fees, it is actually an advance fee payment. Then it must be deposited into a trust account because the client retains an interest in it. Under MR 1.16, the attorney must refund any advance payment of the fee that has not been earned upon termination of representation. MR 1.5(b) encourages written fee agreements. Billable Hours (Most common ways of fees) 1. Advantages: Simplicity Custom Familiarity Measurable standard Increases billing (good for attorney) Provides a method of comparing from attorney to attorney
Works for assorted services Understandable 2. Disadvantages: Decreases firm collegiality Increases associate dissatisfaction Discourages pro bono work No predictability of fees for clients Punishes attorney efficiency Creates conflict of interest between client and attorney Too easy to cheat on number of hours **(MR 1.5 Comment [5] reminds attorneys that they should not exploit an hourly fee agreement by using wasteful procedures.) ABA Formal Opinion 93-379 (161) Persuasive, Not Binding Double Billing Only bill for hours actually worked for that client. Consider questions from perspective of what has the lawyer actually earned. If bill client hourly, pass on benefits of economies to client. Without advance disclosure, cant charge the client for overhead or add a surcharge to the bill. Only charge the client the direct cost of a service (i.e. photocopying) and reasonable percent of overhead directly related to that service (salary of person making photocopy). Practice Pointer Write your time slips as you do the work. If you wait until the end of the day to do them all, you will lose time. Write detailed time slips. Let clients know when you are saving them money. Alternatives to Hourly Fees Fixed or flat fees for specified services. (Can change if work progresses) More common in transactional work than litigation. Flat fees if you do a,b,c but if you get to h then the fees go up Discounting of hourly rates. Blended billing rates (setting a set hourly rate regardless of which attorney does the work). Contingent fees. Hybrids. Contingent Fees- fees for services provided where the fee is only payable if there is a favorable result. MR 1.5: Allows contingent fees except in domestic cases or criminal cases.**** Still subject to reasonableness standard. Other laws may place ceilings on or alternatives to contingent fees.
Note: Lawyer pays for fees, malpractice, time with no guarantee for money - Must be signed within a reasonable time after you start the work (usually 3 months is the limit) - Client pays the costs after case is won Sovereign Immunity -
Caps the amount you can sue for medical malpractice. In Jax the hospital is a UF facility and is protected (maybe can only sue for $100,000 at the max)- some lawyers dont sue because the expenses are to high
Rule reference 1.59c)-(d) ad 1.8(e) &(i)

Rohan v. Rosenblatt 25 Conn. L. Rptr. 287, 1999 WL 643501 FACTS: Attorney and widower entered into a 1/3 contingency fee agreement for collection of life insurance policy issued shortly before the decedents death. MORAL OF STORY: Use your common sense and stifle your greed. If this attorney had just given the client a bit of a discount, they both would have gone away happy. **Lawyer lost because the insurance company never indicated it would not pay and there not a significant risk that the policy would not be paid and a contingency fee was not appropriate. Special Contingent Fee Problems Structured settlements (payments of money own)-their resolution must be set out in the written fee agreement. Federal circuits have split as to whether the attorneys fee is income to the client. Always wait for check to clear before write check to the client or yourself. With offsetting counterclaim, attorneys percentage applied to clients net recovery. Make sure client understands the difference between fees and costs (which can be paid by the attorney up front). MR 1.5: Fees EXAM!!!! Requires the scope of the fee arrangement be communicated to the client, preferably in writing. ******( Has to be in writing of its contingent, its preferable to be in writing at a reasonable amount of time if it is any other fee!!!!) This should be done by the time the representation begins or within a reasonable time thereafter. Note: (usually three months is the limit) UNLESS the attorney has represented the same client under the same fee agreement before. Must communicate any changes to fee arrangement to client.
Contingent fee agreement must include:

Signature of the client, An outline of all percents for trial, appeal etc., An identification of expenses, and Whether expenses come out before or after fee computed.
Note: If no fee is discussed with the client then the attorney will be paid the fair value of the
legal services If there is a structured settlement and the fee is contingent then the lawyer is entitled to the certain percentage of the future payments
Division of Fees (between lawyer of different firms) MR 1.5 Attorneys not in same firm may split a fee if: Divided according to % of work each did Or, each assumes joint responsibility for case Client must consent in writing The total fee must be reasonable QUESTION: What is a Referral Fee? MR 5.4: Professional Independence of a Lawyer Prohibits splitting fees with non-attorneys (except in circumstances previously discussed).
Special Contigent Fee Problems 1. Structured Settlements- their resolution must be set out in the written fee agreement 2. more on PP
Rule reference, 1.5(e) & 5.4 (a)

Chambers v. Kay
The matter arose from a dispute between two attorneys over contingent fees generated from the successful prosecution of a client's lawsuit against third parties. California prohibited a member of the State Bar of California from dividing a fee for legal services with a lawyer who was not a partner of, associate of, or shareholder with the member UNLESS, the division is either in proportion to the work done by each lawyer OR client consented in writing after a full disclosure. The attorney sought a division or apportionment of fees despite noncompliance with the rule's written client consent requirement. The state supreme court concluded that California law was binding on the attorney and precluded him from sharing Chambers and Kay were not members of the same firm, not partners, Chambers was not an employee based on (most important): 3. 4. 5. Chambers and Kay did not agree that Chambers would be compensated for work performed, Chambers compensation was both negotiated and based on fees that the client would pay to Kay Under the agreement, Chambers expected to receive a percentage fee.
Class 10, 9-20, 189-207

Objectives
Look at the basic obligations of competence and diligence. How the Model Rules and attorney malpractice suits are related, if at all. Learn the elements of an attorney malpractice suit. Explore ineffective representation in criminal cases. Consider the extent of potential exposure to malpractice suits by those other than clients.
Basic Obligations in the Attorney-Client Relationship MR 1.1: Competence Requires an attorney to competently represent a client. Competence requires the legal knowledge, skill, thoroughness and preparation needed in the matter. Note: Competence is to stick to the area of the law in which you were trained MR 1.3: Diligence Requires attorneys to act with reasonable diligence and promptness. Attorney Malpractice MR Scope Note [20]: A Model Rule violation in itself should not create a malpractice cause of action or a presumption of a breach of duty. A Model Rule violation should not necessarily warrant any other non-disciplinary remedy like removal from a pending case. MRs designed to provide guidance to lawyers, not to be a basis for civil liability. This purpose can be subverted if used by opposing litigants as weapons. In 2002 the ABA removed the sentence, Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty from the Scope. The language now says the MRs establish standards of conduct by lawyers and that violations might constitute evidence of breach of the applicable standard of conduct. Can be used as evidence of the standard of care
Rule reference 1.1 and 1.3 and scope 20 ***Togstad V. Vesely, Otto, Miller & Keefe 291 N.W.2d 686 (Minn. 1980) ******************** In a legal malpractice action of the type involved here, four elements must be shown: (1) Duty - An attorney-client relationship existed; (2) Breach - Defendant acted negligently or in breach of contract; (3) Causation - These acts were the proximate cause of plaintiffs damages; and (4) Damages - But for defendants conduct, the plaintiff would have been successful in the prosecution of their medical malpractice claim.
****Must try regular case that there was a MEDICAL malpractice case before you can go after the lawyer for medical malpractice Rendering Legal Advice regarding a CLAIM of medical malpractice, the Minimum an Attorney should for the Client to Sue for Legal Malpractice: (191) 1. Request medical authorizations from the client, 2. Review the hospital records, 3. Consult with an expert in the field. Note: Damages - for malpractice actions include damages they would have gotten and other damages proximately
caused by the lawyer. Damages have also included the loss of the benefit of the underlying bargain. A reduction for lawyer fees is unwarranted because of the expense incurred by the plaintiff in bringing an action against the attorney. Facts
Plaintiff, Joan Togstad, is brought suit against Defendant, attorney Jerre Miller, for his alleged negligence in the course of a preliminary consultation with her. After she had fully described the conditions leading to a serious accident suffered by her husband while undergoing treatment in a local hospital, Defendant told her that it was his opinion that she probably didnt have a case, but that he would consult with his partner and get back to her. Since he never followed up with her, she assumed that his initial assessment was correct and did not bring suit in reliance on this opinion. She did not consult with another attorney until one year after her discussion with Defendant, at which time the statute had run and her potential claim was barred. Plaintiff was awarded nearly $650,000, and Defendant now challenges this award. Issue. Did Miller commit malpractice under these facts? HOLDING: Yes. An attorney-client relationship was formed under these facts, and Defendant acted negligently (tort) in assessing the merits of Plaintiffs case. He had reason to know that his advice could injure Plaintiff if negligently given, and had a duty to further investigate the case before indicating that she did not having a valid claim. Practice pointer If you ever MIGHT need to rely upon a communication with someone (including a fellow attorney)put it in writing! Attorney Malpractice Due to distinct torts occurring at different times, the attorney often will not be able to seek contribution or indemnification from the original (unsued) tortfeasor. Note: You cant get contribution from the doctor (tortfeaser A) unless everything was from one
event. Cant happen in a legal malpractice because there two events. Med mal and then legal malpractice.
MOST states require notice to clients when the attorney does not carry malpractice insurance. Some courts have held that the plaintiff must establish that a judgment in the underlying action would have been collectable. Many jurisdictions require expert testimony. Note: Need for expert testimony expert testimony may not be required when the evidence of the negligence is so
patent and conclusive that reasonable persons can reach only one conclusion
MR 1.8(h): Conflict of Interest (1) Prevents an attorney from entering into an agreement with a client that prospectively limits the attorneys malpractice exposure, except when the client is represented by another, independent attorney while reaching this agreement. ***Anything that limits the clients rights must get legal advice from someone else who is not the lawyer or part of the lawyers firm in order to accept unless as stated above (2) Requires an attorney settling an unrepresented clients malpractice claim to Provide written notification to the client of the desirability of seeking independent counsel and The chance for the client to seek advice from independent counsel. Problem P 189 Can Teague sue Webster? - Teague- passenger hit in car and hires lawyer. Lawyer- Webster forgot to file the lawsuit and the SOL expires. The insurance adjuster had been calling to settle but lawyer failed to do so. Can he sue? YES - Yes, missing a SOL can bring legal malpractice Negligence, maybe through in a little failure to speak to a lawyer. ***First must win the original case and THEN Must prove the elements against his lawyer: 1. Duty 2. Breach 3. Causation 4. Damages Proof? - It will be hard for the lawyer to prove he earned his fees but depends on jx Credit for fees? Can Bill Stevens, who is claiming ineffective assistance of counsel, establish both: (190) 1. Was there deficient performance by his attorney? - Client would have a case because of the deficienies of the lawyer made serious errors 2. rejudice? Yes because of the seriousness
Strickland v. Washington (196) Criminal Cases Many believe the two-pronged Strickland test is too difficult for defendants to meet. **Ineffective assistance of counsel A convicted defendants claim that counsels assistance was so defective as to require a reversal of a conviction or death sentence has two components.
1. Deficiency. Counsel made errors so serious that counsel was not functioning as the counsel guaranteedby the Sixth Amendment. 2. Prejudice. Counsels errors were so serious as to deprive the defendant of a fair trial. 1. Deficient Performance: 1. Counsel must have [wide latitude] in making tactical decisions. 2. Judicial scrutiny of counsels performance must be highly deferential. 3. [A] court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. 2. Prejudice: Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. When counsel is burdened by an actual conflict of interest[p]rejudice is presumed [, but] only if the defendant demonstrates 1. That counsel actively represented conflicting interests, and 2. That an actual conflict of interest adversely affected his lawyers performance.
When neither denial of counsel nor conflict of interest is involved 1. The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. 2. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Civil Malpractice Suits after Criminal Cases Most jurisdictions require the criminal conviction to be overturned. The Restatement says actual innocence should not be required. Sometimes sovereign immunity protects public defenders from suit. **Suits by Third Parties*** (To bring about a suit from a person who is not the client) Part 1 Test: To bring suit for legal malpractice , a non-client must establish: 1. An attorney-client relationship with the attorneys client that established a duty of care to the non-client plaintiff. 2. Act or omission by the attorney in breach of the duty of care 3. Damages 4. Proximate cause between the attorneys breach of duty and the damage incurred
Trask v. Butler, 872 P.2d 1080 (Wash. 1994) relied on 2-6 of the California test below: - The brother could ONLY sue the sister, not the laywer, and the sister could sue the lawyer. Part 2 Test : Test for Malpractice Liability to Third Parties 1. Multi-factor Balancing California Test ****Important inquiry is whether the attorneys services are intended to affect the Plaintiff 1. The extent to which the transaction was intended to affect the plaintiff. 2. The foreseeability of harm to the plaintiff. 3. The degree of certainty that the plaintiff may suffer injury. 4. The closeness of connection between the defendants conduct and the injury. 5. The policy of preventing future harm. 6. The extent to which the profession would be unduly burdened by a finding of liability. California appellate court said no privity of K exist because the administrator (Laurel and the attorney did not enter into their relationship intending to affect the estate beneficiaries. 2. Third Party Beneficiary Illinois Test: A non-client must prove that the primary purpose and intent of the attorney-client relationship is to benefit or influence the third party.
Facts Trask was a beneficiary of his parents estate along with his sister Laurel. Laure hired an attorney Butler. With Butlers advice Laurel took two actions that were found to be a breaches of her fiduciary duty, whereupon Laurel was removed and Trask was substituted as personal representative. There was no duty between the lawyer and the beneficiary. However, if the lawyer did something to the estate then it could have been foreseeable, but the court found the duty to a non-client is against public policy.
Suits by Non-Clients Some courts have held that the opposing party in litigation cannot sue for malpractice, because there is no actionable duty to opposing parties. Investor suits against attorneys with corporate clients may be on the rise. When the lawyer drafts an opinion knowing that it will be used by non-clients, those non-clients may be able to sue for malpractice.
Note
A judge is not immune from liability for nonjudicial actions and is not immune for actions, though judicial in nature, taken in the complete absence of all (subject matter jdx)
Malpractice on appeal when the alleged malpractice involves the mishandling of an appeal, causation in fact is proved by showing, 1st that the attorneys conduct caused an unfavorable appellate result and 2nd that the unfavorable appellate result caused an unfavorable result in the underlying action
Both fed and state public defenders are often, though not always, immune from malpractice liability to their criminal clients, under variations of the sovereign immunity doctrine.
Steps towards to the multi factor test. 1) if the third party is an adversary of the attorneys client, there can be no duty to that third party 2) there must be some intent of the client to benefit the third party 3) if there is such an intent then the court can use the multi- factor analysis
Class 11, 9-22, 207 225 Termination of the Relationship

1. Mandatory Withdrawal (MR 1.16)
a. [2] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation. [3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority
b.
2. Permissive Withdrawal (1.16(b)- whole long list

*************************************She seems really interested could be Qs on exam Objectives When MUST an attorney withdraw vs. when MAY an attorney withdraw. Withdrawals sometimes must be approved by the court. What are the attorneys obligations when fired by the client? Collection of fees when the attorney-client relationship has been terminated. Duties to client when the attorney-client relationship has been terminated.
MANDATORY WITHDRAWL (MR 1.16(A)(1)(2))

1. MR 1.16 Representation: Declining or Terminating (a)(2) Prohibits an attorney from accepting a representation (or requires an attorney to withdraw from a representation) when The attorneys condition, mental or physical, materially impairs the lawyers ability to represent the client. 2. MR 1.16: Declining or Terminating Representation (a)(1) Generally requires an attorney to decline or withdraw from representing a client when The attorney would break the Model Rules or some other law by taking or continuing thW representation. Both provisions of MR 1.16(a) are MANDATORY.
MR 1.16(c) *****IF a complaint has been filed with the court then you have to get court permission to
withdraw
Problem (207)**** (a) Is 75k offer reasonable? What are options when client rejects?
1.2 says laywer must abide by clients decision on whether to settle or not. Once you agree to represent a client you should see the case to the end. There are exceptions for withdrawal on good cause ***Client has right to take a settlement offer or not
(b) Disagree over calling witnesses at trial, can you withdraw? Yes, with some bumps, what if?
Can assume a complaint has been filed then there is a record and then we must ask the court for withdrawal. If you know the witness is going to lie you cant put the witness on the stand. When you are at the hearing to withdraw you still have ATTORNEY- CLIENT PRIVLEGE- but usually the courts dont require much. You cant tell the court the clients witness is going to lie. The more logical is when you talk to the client and the lawyer refuses to put the witness on because it may hurt the case. Usually the client will fire you.
( c) When the client does not pay, does the attorney get to dump him?
Yes, because the client broke the contract. 1. Falls under the permissive category. You dont want to incur more costs. You can withdrawal.
Rule reference 1.16 Sobol v. District Court of Arapahoe County Permissive Withdrawal 619 P.2d 765 (Colo. 1980) As a general rule, an attorney who undertakes to conduct an action impliedly agrees that he will pursue it to some conclusion; and he is not free to abandon it without reasonable cause. Sobol and MR 1.16(b) deal with PERMISSIVE withdrawal. The question of whether an attorney should be permitted to withdraw his general appearance on behalf of a litigant in a civil case is, under ordinary circumstances, within the discretion of the court; and its decisions will not be reversed unless this discretion has been demonstrably abused. Nonetheless, the Supreme Court found an abuse of discretion where the trial court first allowed withdrawal ten months before trial, then conditioned withdrawal upon the attorneys finding new counsel for plaintiff. Facts - Sobol and the law firm Zuckerman and Sobol seek relief in the nature of prohibition. They order the trial court to reverse a ruling denying their motion for leave to withdraw as counsel for Helena Sterling, individually and as adminstratrix of the estate of Ernst Sterling. A contingent fee was negotiated. - Sobol argues that Sterling was uncooperative, critical of their handling of litigation, and deliberately withheld material information, repeatedly contacted the attorney for the D, has mad effective representation impossible. - 10 months before trial Sobol ask to withdrawal, and it was granted and Sterling had 30 days to attain a new attorney. Sterling did not attain new counsel and Sobel was required
to help Sobol find another attorney and had 90 days. No new lawyer was found and Sobol had to represent Sterling. When considering attorney withdrawal, a trial court can consider: Balancing interests of attorney vs. client. Criminal vs. civil case. Proximity of trial. Complexity of case. Ability of client to obtain new attorney. Prejudice to other parties. If Ps attorney represent a P in a civil case and we are a hearing for legal withdrawl and the lawyer is able to and the case is pushed back a year. It may be prejudicial against the defendant because the case was pushed back so far. Reason for withdrawal. ****The closer we are to trial the less likely the court will allow a lawyer to withdraw Practice Pointer: Be careful about who you agree to represent because you are generally stuck with that client. Also, be cautious about taking on new clients who have already been to other lawyers. Note: It is often smart to deny someone representation if they have already been represented by 2
or 3 attorneys
Permissive Withdrawal (We MAY withdraw but we dont have to-May instead of Must)
1. MR 1.16(b): Declining or Terminating Representation Generally allows, but does not require, an attorney to decline or withdraw from representing a client when: Withdrawal will not materially adversely affect the clients interests; the client persists in criminal or fraudulent conduct involving the lawyers services; the client previously utilized the attorneys services to perpetrate a crime or fraud; or the attorney considers the clients conduct repugnant or has a fundamental disagreement with it. **** Your client takes a will you drew up and whites out the information and starts selling it on the street. You dont have to withdrawal. ****If a client waives his attorney-client privilege than a lawyer can talk about their private information. EX: If the client goes to the court and says he wont do this because.and I told him . Generally allows, but does not require, an attorney to decline or withdraw from representing a client when: the client has not substantially met an obligation to the attorney and the attorney warned the client that continued refusal will result in the attorneys withdrawal; the attorney will suffer an unreasonable financial burden from the representation or the client has made it unreasonably difficult; or other good cause for withdrawal exists. Good Cause For Lawyer to Withdrawal:
Attorney knows clients claim is fraudulent. Attorney has professional objections to clients retention of additional counsel. Client is uncooperative. Breakdown in attorney/client communication. Client degrades attorney. Client refuses to pay. Ethical rules require withdrawal.
NOT Good Cause For a Lawyer to Withdrawal: Client retained other counsel. Attorney feels previously negotiated contract is insufficient. Attorney feels case has no potential to go anywhere. (You should have investigated the case before you jumped in) No one can force you to take a case, unless you are a public def/prosecutor situation Client refuses to accept settlement offer.
Note: 1. High grade discharge (210, 217)- the client does have cause for discharge and because of the cause the attorney cannot recover for their past fees. Judged by the gravity and timing of the violation, its willfulness, its effect on the value of the lawyers work for the client, any other threatened or actual harm to the client and the adequacy of other remedies 2. Low grade discharge cause to discharge, but are required to still pay the attorney
MR 1.16: Declining or Terminating Representation Section ( c) makes all withdrawals, including mandatory withdrawal under section (a), revocable by the court, by requiring an attorney to comply with any legal requirement to give the court notice of, or seek permission to, withdraw and follow any court order to continue representing the client notwithstanding good cause for terminating the representation. Note: must file a motion for withdrawal if case has been filed even if its mandatory or permissive Rule reference 1.5(c) and 1.16 Somuah v. Flachs 721 A.2d 680 (Md. Ct. App. 1998) [A] client has great latitude in discharging his or her attorney. An attorneys authority to act for a client is freely revocable by the client. Because the power of the client to discharge his or her attorney is an implied term of the retainer contract, the client does not breach the contract when he or she terminates the attorney-client relationship based on a reasonable subjective dissatisfaction with the attorneys services, even if the client does not have any good cause. [even with a contingency fee contract] o [C]ause for discharging an attorney can be divided into two groups:
1. Where the attorney commits serious misconduct, i.e., fraud or illegal conduct, etc., and 2. Where the attorney acts competently and there is no serious misconduct, but the client has a good faith basis to be dissatisfied with the attorney. In the former situation, the attorney is entitled to be compensated for the work done prior to the discharge, but in a contingent fee contract, the attorney must await the occurrence of the contingency. [T]his is based on the agreement that no fee will be payable unless and until the contingency occurs. Quantum Meruit Fees [W]here a client has a good faith basis to terminate the attorney-client relationship but there is no serious misconduct warranting forfeiture of any fee, the attorney is entitled to compensation based on the reasonable value of services rendered prior to discharge, considering as factors the reasonable value of the benefits the client obtained as a result of the services rendered prior to discharge and the nature and gravity of the cause that led to the attorneys discharge.
Facts There was an automobile accident in which the petitioner attained the respondent to represent her with a 1/3 contigent fee. Petitioner moved to Maryland and wanted to bring suit in Maryland. The attorney first notified the petitioner (Somuah) that he was licensed in Virginia. Before Respondent could arrange for local counsel he was dismissed. The attorney sent a letter requesting attorney fees and Petitioner refused. Attorney may collect but not until the petitioner wins her case
MR 1.16( c) Even mandatory withdrawal due to the client firing the attorney is subject to a court order requiring the attorney to continue to represent the client. *****MR 1.5: Fees Requires a written contingent fee agreement that is: Signed by the client. Outlines how the fee will be calculated, including the percentage to be applied if recovery comes via settlement, trial or appeal. Identifies the expenses that will be deducted from the recovery. States whether expenses will be reduced from the amount recovered before or after the attorneys fee is computed. ****Fees (look below) When there is a contingency fee and the plaintiff fires the attorney, is that attorney entitled to a fee? If so, when? It differs from place to place. Look to California, New York, and Maryland Rule How much? 1. Only entitled to a fair hour amount to the time actually spent. 2. There are times where the hourly fee amount is more than the contingent fee amount.
Attorney 2 could have to give all money to attorney 1 and then client would be responsible to pay attorney 2. ***1. Must the Attorney wait to collect if the fee was Contingent? Wont ask the different rule just what is permissive and mandatory rules 1.California Rule: Collect only after plaintiff recovers contingency. (possible wouldnt collect) 2. New York Rule: Permits recovery immediately upon discharge. (even if P never wins) 3. Maryland Rule: 1. Without Cause: Immediate recovery if discharged without cause (even if P never wins) 2. With Cause: If you are fired with good cause or the client was reasonably collect) The Charging Lien An attorneys right to recover his fees and costs from a fund recovered by the client due to the attorneys efforts. Intended to protect attorneys from dishonest clients who obtain a benefit and then refuse to pay. Practice Pointer When you represent a defendant who is writing a check to settle or resolve a matter, make sure both the clients name and the name of the attorney (or law firm) are on the check as payees requiring both to endorse the check before it can be distributed. The Retaining Lien*****Ritter found it interesting Attaches to any papers, documents, securities, and monies of the client coming into the hands of the attorney in the course of the professional employment. The inconvenience suffered by the client determines the value of the lien. See, Britton. Drafters of the Restatement believe it is unethical. **** You dont get these documents back unless you pay me (kind of sounds like blackmail and unethical)
subjectively
dissatisfied and then you dont get paid until the contingent fee is recovered. (possible wouldnt
Class 12, 9-27, 226-2 Attorney Client Privilege: FRE

Privilege v. Confidentiality
Confidential Information is biggest: MR 1.6 followed by: 1. Attorney Work Product 2. Attorney Client Privilege
Problem 234 Attorney Client Privilege
1. Can he be compelled to testify to what he testified? a. No because what he observed that day is still within the scope of his representation 2.
Should he be punished?
a. Its a 1.6 violation, which is bigger in scope than attorney client relationship. b. Under MR 1.6 : Protect anything RELATED to the litigation. We have an obligation not to talk about it to anyone. much bigger scope c. However under FRE Attorney Client Privilege much smaller of a duty
Objectives Understand the importance and the limited scope of the attorney-client privilege. Explore the exceptions to the attorney-client privilege. Peruse the Work Product Doctrine. (Creation of the FRE RULES) Appreciate the vast scope of MR 1.6 confidentiality. Only one that deals with what we can be disciplined for. It huge and anything we tell to someone else about one of our clients is subject to discipline. ****Note: Attorney client privilege relates
to litigation BECAUSE it deals with Federal
Rules of Evidence
**Confidentiality refers to the agent principal relationship Problem: p. 227 After returning funds given to him by another attorneys client, an attorney is subpoenaed to testify before the grand jury. 1. Must he disclose the identity of the person who gave him the funds? yes there was no attorney client relationship 2. Must he state why the payment was made? yes there was no attorney client relationship
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*****Wigmore on Attorney-Client Privilege The definition****NOT Confidentiality

1. Where legal advice of any kind is sought 2. from a professional legal adviser in his capacity as such, 3. the communication relating to that purpose, 4. made in confidence 5. by the client, 6. are at his instance permanently protected 7. from disclosure by himself or by the legal adviser, 8. except the protection be waived.
**Both client and Attorney are protected
1. Where legal advice of any kind is sought: Hughes case (227): Dropped off stolen property to the police, therefore it was not an act in the professional capacity of [the lawyer] nor was it the rendition of legal services. Note: rule reference 1.18(a)-(b) - There were 2 attorneys involved and the defendnt went to attorney 1 to ask for advice and attorney 2 had nothing left to do as far as legal advice and therefore not privileged - Therefore-no privilege Facts Petitioner had been called as a witness in a criminal trial involving the theft of a typewriter because he had participated in the return of the stolen typewriter to the police. He refused to name the person who contacted him, contending that the information was a privileged attorney-client communication. The court held that the delivery of stolen property to the police department by petitioner was not an act in his professional capacity nor was it the rendition of a legal service. He was acting as an agent or conduit for the delivery of property, which was completely unrelated to legal representation. Dean v. Dean case (230): The attorney gave legal advice and actually asked you know I am an attorney right? You know you are asking me for advice? The person knew he was a lawyer and requested advice.
Privilege did exist.
**Practice Pointer** Make sure client knows you are an attorney. Confirm that client is seeking your legal advice. Before any communications with the client. DOCUMENT!!! 2. From a professional legal adviser in his capacity as such: Fisher case: o Privilege does not extend to an accountants work papers, because only communications with lawyers are privileged. Privilege?
3. The communications relating to that purpose: ***Does not have to be spoken, can be observed When an attorney observes facts as a result of communications, she cannot be forced to testify. But observations not related to the communication are not privileged. Physical evidence delivered by a client or by a non-agent third party is not privileged. 4. Made in confidence: Only communications the client intends to be confidential are protected. Communications in front of third parties are not protected. Even public information may be protected, if communicated to an attorney in confidence. If someone brings in a fianc they can testify about what was discussed. **Practice Pointer** Before speaking with your client, kick everybody out, including family, fiancs and parents. 5. By the client: Upjohn Co. case (237): Privilege within company if: Made by employee in scope of their employment; At the direction of management; For purpose of securing legal advice; Privilege only protects disclosure of communication, not underlying facts.
6. Are at his instance permanently protected: Uniform Rules of Evidence, R. 502(c): 1. Privilege asserted by client. 2. Or on behalf of client. 3. Attorney can assert on clients behalf. 4. Client can waive, then attorney can no longer assert privilege. 7. From disclosure by himself or by the legal adviser: Uniform Rules of Evidence, R. 502( c): The privilege can be invoked to prevent unauthorized disclosure by: 1. Client 2. Attorney 3. Third parties 4. Including when on the stand.
8. Except the protection be waived:
McCormick on Evidence sec. 92 Only the client can waive the privilege. Therefore, the attorney cannot waive the privilege on the clients behalf. Unless, the attorney is acting within the scope of her authority.
Exceptions to Attorney-Client Privilege

Future crime or fraud. (Not past) Identity of the client. (Usually) Clients death? Maybe/maybe not ***Presumed rule is that the privilege lives beyond the client but there are exceptions to it
CONFIDENTIALITY Model Rule 1.6

Attorney Work Product Attorney work-product protected Hickman case: Seminal case protecting attorney work product. (Case preexisted todays liberal discovery procedures.) The effect on the legal profession would be demoralizing. And the interests of the client and the cause of justice would be poorly served. **But look at Rule 26(b)(3) of Federal Rules of Civil Procedure today. Upjohn Co. case: Attorneys notes and memos summarizing communications are protected because they are: Communications protected by attorney/client privilege, or The attorneys mental processes. Absent a showing of necessity and unavailability. Note: Attorney work product materials prepared in anticipation of case, their thoughts on the case. If you cant separate the document from the attorneys thought process then you cant have the document
**Practice Pointer**
If you give your expert witness a copy of your file memo, it is no longer protected. It can be discoverable
CONFIDENTIALITY: Model Rule 1.6 Protects ANYTHING RELATED to the representation. Doesnt even have to be the main topic. We have to protect what we learned in that fiduciary relationship.
MR 1.6: Confidentiality of Information Prohibits an attorney from revealing information relating to the representation of a client. Except: When the client gives informed consent; When the attorney is impliedly authorized to disclose; and When Model Rule 1.6(b) allows disclosure. [Well discuss in next couple of classes.] **Practice Pointer** Do NOT talk about your cases. On the elevator. With your friends. With your spouse.
Class 13, 9-29, 246-263

Confidentiality Direct Evidence in the Lawyers Possession Point/Counterpoint
*****Problem p. 247*****
Hes not missing. Hes dead. He asked for advice so there was an attorney client relationship Attorney knows the police are looking for the evidence and the attorney is the one who has the evidence. If the lawyer learns that her client has killed someone, and the lawyer would like to inform the deceaseds family that he is dead is there any way for her to do so? No, you cannot talk about crimes that have been committed in the past BUT you can talk about cases to prevent future crimes or fraud to prevent bodily harm **If we tell the family what are the consequences? You breach the confidentially and it would be a model rule violation, then the ones that say MUST and SHALL then you are subject to discipline in the jurisdiction you are in. **The evidence MUST be given after a reasonable time (so the attorney may hold onto the evidence for a reasonable amount of time) and the attorney cannot alter or change the evidence. They can be discovered from the other side. IF the lawyer takes photographs that is degrading the evidence and could be liable. The courts hold that those pictures would be discoverable because their not privilege.
What if picked up keys at crime scene? Attorney would be subject to discipline because he is changing the crime scene.
Model Rule 1.6: Confidentiality of Information (a) Prohibits an attorney from revealing information relating to the representation of a client except When the client gives informed consent, When the attorney is impliedly authorized When MR 1.6(b) allows disclosure.
Model Rule 1.6: Confidentiality of Information This mean EVERYTHING you know about a case is covered. (b) Allows an attorney to reveal client information to the extent the lawyer reasonably believes necessary to follow a court order or other law (under subsection (6)). Note: 1.6 overcomes all other rules. Except 1.6b which applies to future crimes. 1.6 is client-attorney confidentiality. 1.6 does not apply to finding a body and taking pictures because it is not legal advice Physical objects are not privileged to attorney client relationship
***Attorney-Client Privilege vs. MR 1.6

If you go to court to defend your clients right to not have to talkbut the judge tells YOU to talk, must you talk? You dont have to tell the information and YOU WILL NOT be disbarred. What about MR 3.4(c)? What if other law is not from a court but from an obstruction of justice statute? Model Rule 3.4: Fairness to Opposing Party and Counsel The key word here is UNLAWFULLY. Assert attorney-client privilege. Assert work product privilege. Assert the clients 5th Amendment right not to talk. Model Rule 8.4: Misconduct 1. Bans dishonest, fraudulent, deceptive, and misrepresentative actions. 2. Prohibits conduct that is prejudicial to the administration of justice.
MR 8.4(b) is not the catch all that it seems to be, It tends to be the last gasp rule cited by someone who does not like something a lawyer did, but cannot find any provision of the rules that explicitly prohibits it. New York Penal Law sec. 205.50 Hindering prosecution [A] person renders criminal assistance when, With intent to prevent, hinder or delay the discovery or apprehension of, or the lodging of a criminal charge against [] A person who he knows or believes has committed a crime or is being sought by law enforcement officials for the commission of a crime, Or with intent to assist a person in profiting or benefiting from the commission of a crime, he 4. Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him; or 5. Suppresses, by any act of concealment, alteration or destruction, any physical evidence which might aid in the discovery or apprehension of such person or in the lodging of a criminal charge against him. People v. Belge 372 N.Y.S.2d 798 (Onondaga County Ct. 1975). The effectiveness of counsel is only as great as the confidentiality of its client-attorney relationship. If the lawyer cannot get all the facts about the case, he can only give his client half of a defense. This, of necessity, involves the client telling his attorney everything remotely connected with the crime. [R]ightsare vested in the constitution for one accused of a crime. Among those substantial constitutional rights is that a defendant does not have to incriminate himself. His attorneys were bound to uphold that concept and maintain what has been called a sacred trust of confidentiality. During the course of representation of a client, defendant attorney conducted an investigation based upon information provided by the client and discovered the missing body of a person that the client had said that he had murdered. Defendant did not disclose the discovery to the authorities, but the discovery became public during the trial of the client when, to affirmatively establish the defense of insanity, defendant brought the information to the jury. Plaintiff state filed an indictment against defendant accusing him of violating N.Y. Pub. Health Law, and defendant filed a motion for a dismissal of the indictment. Defendant contended that he was excused from making a full disclosure to the authorities based on the attorney-client privilege.
HOLDING: The court held that the discovery was a privileged communication. The court held that defendant was also excused from disclosure in the interest of justice.
Question: Do criminal defense attorneys really want their clients to tell them everything? Is this Court tying the 5th Amendment right to remain silent in with the attorney-client privilege? Commonwealth v. Stenhach 514 A.2d 114 (Pa. Super. Ct. 1986). Rule Defendants and their counsel must relinquish all incriminating physical evidence to the prosecution before trial. Withholding such evidence constitutes an obstruction of justice. Facts Defendants George and Walter Stenhach, part-time public public defenders in Potter County, Pennsylvania, were appointed to represent Richard Buchanan, a murder suspect. They retained Daniel Weidner, a former police officer, to investigate the crime scene to retrieve various pieces of evidence identified by the defendant. Weidner recovered a broken rifle stock from a rifle matching the description of the one the client had provided, and returned it to the Defendants. Defendants considered the issue and determined that they were obligated to keep this evidence to protect their client. The stock was stored in a paper bag in Defendants office until its existence was revealed on the fourth day of trial. Defendants were charged with several counts of obstruction of justice, which they now appeal. ISSUE
1. 2. Must defense counsel provide the prosecution with incriminating physical evidence? Was the statute under which the Defendants were convicted unconstitutionally vague or overbroad?
HOLDING: 1. Yes. Incriminating physical evidence is not protected by any privilege, and defense counsel has a duty to
deliver it to the prosecution immediately after a reasonable time for examination. 2. Yes. These statutes do not provide enough notice for what might constitute a crime in these kinds of circumstances. Effective criminal statutes must clearly proscribe certain types of behavior. Reversed, sentence vacated.
To summarize, a criminal defense attorney in possession of physical evidence incriminating his client may, after a reasonable time for examination, return it to its source if he can do so without hindering the apprehension, prosecution, conviction or punishment of another
and without altering, destroying or concealing it or impairing its verity or availability in any pending or imminent investigation or proceeding. Otherwise, he must deliver it to the prosecution on his own motion. In the latter event, the prosecution is entitled to use the physical evidence as well as information pertaining to its condition, location and discovery but may not disclose to a fact finder the source of the evidence. Model Rule 3.8: Special Responsibilities of a Prosecutor Prohibits a prosecutor from subpoenaing an attorney except when the prosecutor reasonably believes: No privilege protects the information sought by the prosecutor; The information sought is critical to the case; and No feasible alternative would result in obtaining the information.
Practice Pointer**************** Criminal case: 1. Almost always, you should not let your clients give you incriminating physical evidence. 2. Think carefully before rushing out to collect evidence. Civil Case: 1. Need to make sure evidence is preserved. 2. Avoid spoliation of evidence claim. - You cant lose the evidence or it will look like you lost it to prevent the other side from having it
Fletcher v. Union Pacific Railroad Co. Issue Whether the surveillance film may be used.
Facts Fletcher, a Union Pacific Railroad employee, fell while working on a moving train when a grab iron he was holding broke. He claimed substantial and permanent injuries in excess of $5 million. The D obtained a medical examination of Fletcher by a physician of its choice, who submitted a report finding no objective signs of serious or permanent injury.
Fletcher then sought production of any surveillance firlms that UPRR took after his injury claiming it would show the extent of his injury. The substantial need examines: 1. Whether the information is an essential element in the requesting partys case and 2. Whether the party requesting discovery can obtain the facts from an alternate source. HOLDING - P failed to demonstrate undue burden because he had made no attempt to obtain equivalent information from alternate sources and it was denied.
Class 14, 10-11, 263-276

Objectives Outline the circumstances in which an attorney may reveal confidential information to protect persons from physical harm. Outline the circumstances in which an attorney may reveal confidential information to protect persons from financial harm. Confidentiality Protecting Third Persons From Harm
In re Gonnella (267) Facts -
John Martini and co-defendant, Theresa Afdahl, were arrested for kidnapping/ murder of a local businessman. Martini was assined a public defender however, the pubic defender (Mr. Gonnella) informed his boss he would no longer represent Mr. Martini. The new attorney assigned to Mr. Martini reported conversations between Mr. Gonnella and Mr. Martini that if his co defendants attorney was not removed that he would have him killed. The New attorney (Mr. Slocum) informed the prosecution of these conversations. Mr. Gonnella would not talk about the conversations and claims it was attorneyclient privilege. HOLDING: Mr. Gonnella could be question but limited in scope about the alleged threats made against Mr. Frank and could not be used against Mr. Martini.
(Diff than now This is old) New Jersey version of 1.6(b)(1) based upon the pre-2002 ABA version with some differences. New Jersey Rule: Required disclosure in some circumstances to stop criminal, illegal or fraudulent acts. Allowed disclosure to prevent substantial injury to the financial interest or property of another. Required disclosure when attorney reasonably believed necessary to prevent client from committing crime. Pre-2002 ABA version of 1.6(b)(1): 1. Didnt require disclosure but permitted it under certain circumstance. 2. Allowed disclosure only to prevent a criminal act, not financial harm. 3. Allowed disclosure only when necessary to prevent imminent death or substantial bodily harm. **Model Rule 1.6(b) The lawyer gets the judgment call (Not subject to discipline) (today): Confidentiality of Information 1. Allows an attorney to reveal client information to the extent the lawyer reasonably believes necessary: 2. to prevent reasonably certain death or substantial bodily harm. Differences Between Old/Current MR 1.6 Pre-2002 Rule: Required a FUTURE criminal act. **Current Rule: Does not require a future criminal act. Imminent death has been replaced with substantial bodily harm. Still does not REQUIRE disclosure. Comment [15] to MR 1.6 Permits but does not require disclosure. Attorney may consider: Relationship with client. Those client might harm. Attorneys own involvement in matter. And factors that may extenuate the clients actions. If do not disclose, do not violate Model Rules. **[Look at MRs 1.2(d),4.1(b), 8.1, 8.3, and 3.3 to see if they trump 1.6.] Rule reference 1.2(d), 1.6, 4.1(b)
Hawkins v. King County

602 P.2d 361 (Wash. Ct. App. 1979).
Facts: Hawkins was booked for marijuana where his mother employed an attorney to assists Mr. Sanders (The attorney) in having Hawkins either hospitalized or civilly committed. Dr. Elwood Jones, a psychiatrist, telephoned and wrote Sanders stating Hawkins was mentally ill and a danger to himself and other and should not be released from custody. Hawkins was released and Sanders never said anything about Hawkins illness. 8 days later Hawkins assaulted his mother and attempted suicide. Hawkins claims his court appointed defense attorney was negligent and committed malpractice by failing to divulge information regarding his clients mental state at a bail hearing. RULE: Court believes that the duty of counsel to be loyal to his client and to represent his clients interest overrides the nebulous.
Holding: Because Disclosure not required by law, appellants theory of liability on the basis of ethical or court rule violations fails for lack of substance. Comments [9] and [10] to MR 1.2 [9] Can give client honest views about consequences likely from actions. The clients use of attorneys advice does not itself implicate the attorney in the clients conduct. [10] When client already engaging in criminal activity, attorney should: Avoid creating fraudulent documents or suggesting how client can avoid detection. Attorney cannot aid in criminal activity. Must withdraw pursuant to MR 1.6(a). Might have to give notice of withdrawal pursuant to MR 4.1. Confidentiality Protecting Third Persons From Financial Harm (Largely prompted by the Enron scandal.) Model Rule 4.1:Truthfulness in Statements to Others Prevents an attorney from knowingly: Misstating the facts or law to non-clients. Neglecting disclosure of material facts when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless MR 1.6 prevents disclosure. Note tie-in between MRs 1.6 and 4.1 If MR 1.6 does not PROHIBIT disclosure, and disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client, disclosure becomes mandatory under MR 4.1.
15 U.S.C. sec. 7245 (2002) [part of the Sarbanes-Oxley Act] Act required the SEC to adopt a rule: (1) requiring attorneys to report evidence of material violations of securities law or fiduciary duty to chief legal counsel or CEO of company; and (2) if legal counsel or CEO does not appropriately respond, requires reporting attorney to report to board of directors. [result of Enron and similar scandals] Also look at 17 C.F.R. sec. 205.3(d)(2) Model Rule 1.6: Confidentiality of Information (b) allows attorney to reveal information to extent believes needed to avoid reasonably certain substantial injury to the financial interests or property of another resulting from criminal or fraud of a client, if the client has used the attorneys services to further the improper conduct. Comment [7] to MR 1.6 Limited exception to general requirement of confidentiality. (comment added in 2003 to accompany amendment to Rule in 2003) Clients use of attorney to advance crime or fraud is a serious abuse of the client-lawyer relationship justifying loss of MR 1.6 confidentiality. Comment notes that while: MR 1.6(b) does not REQUIRE disclosure, MR 1.2(d) prohibits an attorney from advising or helping a client commit a crime/fraud, and MR 1.16 MAY require or allow the attorney to withdraw in such circumstances. See also, MR 1.13( c) regarding attorneys who represent organizations. Model Rule 1.6: Confidentiality of Information (b) allows attorney to reveal information to extent believes needed to Avoid, minimize or correct substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from crime/fraud by client if client used attorneys services to further improper conduct. Also added in 2003. Applies to individual clients, not merely organizations. Comment [8] to MR 1.6 1. Applies when attorney only learns of crime/fraud after it has occurred. 2. Does not mean client can prevent disclosure merely by ending conduct at that time. 3. Sometimes losses can still be prevented, rectified or mitigated at that time. 4. Allows attorney to decide if will disclose. 5. Does not apply to attorney retained to defend against prior criminal/fraudulent conduct.
Model Rule 1.13: Organization as Client Permits attorney for organization who knows that one of its employees is acting or planning to act in a way that violates a legal duty which will probably cause [the organization] injury to proceed as reasonably necessary in the best interest of the organization. (see next slide) Also amended in 2003. EXCEPT when, the attorney reasonably believes that the organizations best interests do not require it. The attorney MUST refer the matter to the organizational leaders if the circumstances warrant it. If organizational leader(s) fail to correct or prevent a clear violation of law the attorney can reveal confidential information to extent reasonablynecessary to prevent substantial injury to the organization. Comment [6] to MR 1.13 Basis for revealing confidential information in addition to MR 1.6(b) thereby supplementing MR 1.6 but not modifying, restricting or limiting MR 1.6. Disclosure only permitted when highest organizational officer insists upon undertaking clearly illegal action, and then only when needed to prevent reasonably certain substantial injury to the organization. (Even if attorneys services were not used to further illegal conduct.) Model Rule 1.13: Organization as Client Attorney can not reveal his/her investigation of organizations illegal conduct or attorneys defense of the organization. (i.e. preparation for possible defense.) If attorney believes she/he was discharged due to actions taken pursuant to MR 1.13, she/he must take reasonable steps to notify highest officer of dismissal.
Class 15, 10-11, 276-298

Objectives Contrast the alternative tests for determining when an attorney knows his client will commit perjury. Review the permissible responses to future and past client perjury. Identify the circumstances where an attorney can disclose confidential information to protect herself from allegations of misconduct or to assert claims against her client. Confidentiality: Protecting the Courts: Client Perjury [MR 1.6(b)(6) permits disclosure of confidential information by an attorney to comply with other law. Perjury is one such circumstance due to MR 3.3.]
Model Rule 3.3: Candor Toward the Tribunal Prohibits an attorney from presenting evidence he knows to be false. Requires attorney to take corrective action, which could include disclosure to the court if learns previous testimony was false. Permits an attorney to decline to offer testimony she reasonably believes is false, except for the testimony of a defendant in a criminal matter. MR 3.3 obligations remain until the proceeding has concluded and trump MR 1.6 confidentiality requirements. Comment [8] to Model Rule 3.3 Ban on evidence only in effect when attorney knows that the evidence is false. May present evidence if only reasonably believe it to be false. Knowledge of falsity can be inferred from the circumstances. Give client benefit of doubt but cannot ignore an obvious falsehood. Comment [9] to Model Rule 3.3 While attorney who only reasonably believes evidence is false is not prohibited from offering it, he may refuse to do so. Offering false evidence may affect the attorneys credibility and effectiveness. Can put criminal defendant on stand unless attorney KNOWS the testimony will be false.
*Standards for Determining Whether the Attorney Knows the Client Will or Has Committed Perjury 1. Firm Factual Basis Test (majority of states) *Nix V. Whiteside, 475 U.S. 157 (1986). *Requires evidentiary hearing. 2. Good Faith Determination (minority of states) *People v. Bartee, 566 N.E.2d 855 (Ill. Ct. App. 1991) * Less stringent test. * Subjective, how did the lawyer know, why did you know
Rule reference 3.3 and 1.16 Nix v. Whiteside (277) Issue. Does an attorneys admonition to his client that he will inform the court about what he sees as a
clients plan to commit perjury violate a defendants right to effective assistance of counsel under the Sixth Amendment? Facts The defendant and two others went to the victims apartment looking for drugs. An argument broke out and the defendant ended up inflicting a fatal stab wound to the victim. Defendant expressed to his attorney that he had to concoct a story the victim having a weapon in order to win on a theory of selfdefense. Defendants attorney informed him that if he perjured himself on the stand, the attorney would have to inform the court of the deception. Defendant was found guilty of second degree murder. He petitioned for a writ of habeas corpus and the United States Court of Appeals for the Eighth Circuit granted the writ. RULE: An attorney is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law and should admonish the client about his duty to inform the court if the defendant perjures himself on the stand HOLDING: Attorneys duty to a client does not extend to assisting a client in commiting perjury. Whatever the scope of a constitutional right to testify, it is elemental that such a right does not extend to testifying falsely. [T]he right to counsel includes no right to have a lawyer who will cooperate with planned perjury. What should attorney do when she KNOWS client will lie? 1. Step One: Dissuasion (MR 3.3) Nix, It is universally agreed that at a minimum the attorneys first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful conduct. How? Discuss potential consequences for client. Disclose attorneys obligations and options. If this works, no further steps are needed
Step Two: Withdrawal What should attorney do when she KNOWS client will lie? 3. Mandatory withdrawal provisions of MR 1.16(a)* require, at least, an attempt to withdraw. 4. Attorneys continued representation would result in the attorneys offering of evidence he knows to be false in violation of MR 3.3(a)(3). i. * MR 1.16(a): If would break MRs or some other law, required to withdraw. ii. Mandatory withdrawal rule but still subject to Court approval. iii. But what if criminal defendant keeps doing this to delay trial? Court may refuse to grant.
Comment [15] to Model Rule 3.3 Only reveal as much information as is reasonably necessary to meet the demands of MR 3.3 unless MR 1.6 allows additional disclosure. Can put lawyer in a box when moves to withdraw but can only reveal minimal reasons as to why. Can You Disclose Clients Intentions to the Court? Comments [11] and [15] to MR 3.3 seem to suggest this is possible. In practice, it is relatively unusual. Probably because judge usually gets it. Ex: Defense attorney goes to bench immediately before putting the defendant on the stand and says, Your Honor, I move to withdraw, due to a problem in my relationship with my client. Do All Attorneys Heed This Rule? Probably not. Comment [5] to MR 3.3 states an attorney MUST refuse to present evidence when the attorney KNOWS it to be false. An attorney is an officer of the court and must not mislead the trier of fact with false evidence. Comment [6] to MR 3.3 allows an attorney to present the portion of the testimony that is not false. (Narrative Approach) People v. Bartee (283) Facts Bartee (D) was charged by indictment with one count of attempted robbery. D was found guility and sentenced to a 12 year term and his conviction was confirmed. Midway through the trial, Ds counsel advised the court that during the court ose the trial something happened between the D and him which required counsel to withdraw from the case and forbade his placing D on the stand to testify. The attorney could not tell the court the nature of the problem that had arisen but did cite to the case Nix v. Whiteside. The court denied counsels motion to withdraw, BUT rules that D would testify in a narrative form without questioning his counsel. The court also ordered the defense counsel not to comment on defendants testimony in his closing argument. D did testify in a narrative form. The D now contends that he was denied the right to effective assistance of counsel and a fair trial by the courts requiring him to testify in a narrative form.
Court HELD: that counsel was required to take such measures as would give him a firm factual basis for believing the D would testify falsely and a clear expression of intent to commit perjury is required before an attorney can reveal client confidences.
Narrative Approach People v. Guzman, 755 P.2d 917 (Cal. 1988). Defense attorney advised court that defendant would be testifying, against his advice, using the narrative approach. Judge warned defendant about problems. Defendant testified. Attorney could not argue the perjured testimony in closing Although some judges allow because they do not want to allow the attorney to withdraw, it is not something the MRs, as written, permit. See Comment [7] to MR 3.3. Confidentiality Attorney Self-Defense Model Rule 1.6: Confidentiality of Information Allows an attorney to reveal client information to the extent the lawyer reasonably believes necessary To prove an attorneys claim or defense in a dispute with a client; To defend against a criminal charge or civil claim; To respond to any allegations related to the attorneys representation of a client. Comment [10] states these charges can be criminal, civil, disciplinary and the attorney can disclose any time after initiation of the formal proceeding. Rule reference 1.6(b)(4)-(5) In re Boelter (293) 965 P.2d 328 (Wash. 1999) Facts: Attorney who represented client in an IRS matter sent letters and handwritten notes threatening to reveal unreported assets to the IRS if client did not pay unpaid bill for legal fees. Held: Implicit in the [Rule] 1.6(b)(2) exception to [the confidentiality duty] is that it should not be carelessly invoked. An attorney should explain the exceptions to [MR] 1.6 to a client at the beginning of the representation. The Attorney asserts under Rule 1.6 a lawyer should be able to threaten a former client with disclosure of client confidences in order to resolve a fee dispute and the Court disagrees. Boelter represent Withey who revealed confidential information to him regarding his past dealings with the IRS. Withey did no pay his attorney fees. Boelter wrote a threatening letter to try to collect the fees. After the letter Withey formed an opinion that Boelter had a tape recording of their August 1990 conversation. - Boelter filed suit and Boelters associate White spoke with Withey regarding the unpaid fees. Withey agreed to pay as long as Boelter agreed to return the tape reocrdings of the defendant (Whitey)
HOLDING: Rule 1.6(a) exception, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim against his client. HOWEVER, it is voluntary and not FORCED (which Boelter claimed in his letter).
May we talk to other lawyers about our PR dilemmas? Yes. See MR 1.6(b)(4) added in 2002. Page 276 A) 1) 1. 1.16 and 1.6 says we have the duty to withdraw before lawyers helps engage in criminal conduct. If you withdraw you must address motion to judge. If we know they will withdraw we are required to withdraw. If we think they may li we may withdraw. 2) Nix v. whiteside would a reasonable person know that the defendant was going to lie (firm factual basis test) People v. bartee - Did this attorney have a reasonable basis to think that the client was going to lie (good faith determination) B) If you carryon the testimony you are aiding them. You must tell the court. Obligation ends when the proceeding is over. (all appeals or final judgment like an acquittal or complete appeal process or appeal period is over) C) 1.9 there is no obligation D) 1) 3.3c applies. An acquittal is a final judgment and ends the obligation to report.
Class 16, 10-13, 299-333

Objectives Explore the conflicts issues arising from: 1. Representing multiple parties to a transaction. 2. Representing multiple parties in litigation. 3. Defending the defendant while being paid by the insurance company. 4. Representing someone but being paid by someone else. 5. Taking a position for one client contrary to another clients. General Conflict of Interest Issues All attorneys run into them. They are inherent in human relationships. MRs prohibiting certain conflicts of interest are not primarily designed to prevent actual harm to clients. Designed mostly to prevent loss of client confidence.
Maritrans v. Pepper, Hamilton & Scheetz, 602 A.2d 1277 (Pa. 1992) Conflict of interest violations have led to: Disgorgement of fees, (I might have to give fees back) Damages, Injunctions, and Disciplinary actions. Multiple Clients in the Same Matter: Non-Litigation Matters Model Rule 1.7: Conflict of Interest: Current Clients (a) prohibits an attorney from representing a client if the representation involves a concurrent conflict of interest. [unless allowed under MR 1.7(b)] Model Rule 1.7: Conflict of Interest: Current Clients Concurrent conflict of interest is defined as: Representing a client directly adverse to another current client. Situations where representing a client will involve a significant risk that clients representation will be materially limited by the attorneys responsibilities to a different client, former client or a third party. Board of Professional Ethics v. Wagner 599 N.W.2d 721 (Iowa 1999) In a dual representation situation, it is not enough for a lawyer simply to inform the client that the lawyer is representing both sides. In re Lanza 322 A.2d 445 (N.J. 1974) A client cannot foresee and cannot be expected to foresee the great variety of potential areas of disagreement that may arise in a real estate transaction of this sort. The attorney is or should be familiar with at least the more common of these and they should be stated and laid before the client at some length and with considerable specificity. Model Rule 1.7: Conflict of Interest: Current Clients (b) Permissible representation that would otherwise violate 1.7(a): If attorney reasonably believes she can give each client competent and diligent representation. The law does not prohibit taking the case. No client will assert a claim against another client in the same case. Each client gives written informed consent. Real Estate Transactions Sometimes even the informed consent of both parties is not enough to allow dual representation. See, Baldasarre v. Butler, 625 A.2d 458 (N.J. 1993).
Multiple Clients in the Same Matter: Litigation Issues Shillens Case 818 A.2d 1241 (N.H. 2003) While a client may consent to representation notwithstanding a conflict, [the rule] makes clear that when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the clients consent. [Reasonable person standard.] Comment [17] to MR 1.7 MR 1.7(b)(3) conflicts between current clients asserting claims against each other in the same case are nonconsentable. This may include for mediation purposes. Comment [6] to MR 1.7 Even when two clients have two matters that are wholly unrelated, but are still directly adverse, an attorney cannot advocate for them both without consent. Economically but not legally adverse matters in unrelated litigation is typically not a conflict of interest. Model Rule 1.8: Conflict of Interest (g) An attorney representing multiple clients cannot participate in making an aggregate settlement unless each client has signed an informed consent. Pre-consent disclosure must include a discussion of all the claims or pleas involved and the participation of each person in the settlement. Resolving Litigation Conflicts When a lawyer is forced to withdraw from an originally valid multiple representation, s/he must withdraw from representing ALL clients. Unless all clients give informed consent in writing to representing of only one. Consent must be specific. Duties to Former Clients MR 1.9 Prevents an attorney from representing a client against a former client in the same matter or a substantially related matter if the former and new clients have materially adverse interests unless former client provides written informed consent. Multiple Clients in the Same Matter: Insurance MR 1.8(f): Permits an attorney to be paid by someone other than a client only when:
the client provides informed consent, the attorneys independence of professional judgment and the attorney-client relationship is not limited, and client information remains confidential. Rogers v. Robson Firm 392 N.E.2d 1365 (Ill. Ct. App. 1979) The fact that the attorney also represents the insurer in no way alters his obligations or responsibilities to the insured. The Tripartite Relationship [insured/insurer/defense attorney] Areas of Potential Conflict: Settlement Demands within policy limits Insureds who do not wish to settle Failure to negotiate in good faith Discovery and trial tactics Coverage Punitive damages claims Multiple Clients in the Same Matter Other Third Party Payment Cases: Beneficiary pays attorney to draft will. Parents pay for juveniles attorney. Domestic violence cases-battered spouse pays for batterers attorney. Employer pays for employees attorney in workplace crimes. Union pays for members attorney in labor dispute. **MR 1.8(f) & MR 5.4(c )-attorney works for and at direction of client, not person paying bills. Multiple Clients in Similar Matters Positional Conflicts: Question: Can an attorney take a position in representing one client that is inconsistent or adverse to another client? See, MR 1.7, Comments and State v. Williams. Multiple Clients in Unrelated Matters Unrelated Representation of a Current Clients Adversary: MR 1.7(b) prohibits an attorney from representing a current client against another current client, even in unrelated matters unless both clients give written informed consent and the lawyer reasonably believes he can give both clients competent and diligent representation.
If one client is a material witness against the other, the lawyer may not represent both. Rule reference 1.0(e), 1.7, 1.8(f) and (g), 1.9 and 5.4(c) Iowa
Rule reference 1.7 Williams Consent to future conflict is governed by the reasonable understanding of the client at the time the waiver is obtained. The more comprehensive the explanation of the types of future representations and the actual reasonably foreseeable adverse consequences, the more likely the waiver will be effective. If the consent is general and open minded it is not likely to be effective If representing two clients on the same transaction you msut get conformed consent after you tell them all important
Class 17, 10-18. 333-375

*************** Model Rule 1.7 Model Rule 1.8 Model Rule 1.9 Model Rule 1.10 Conflicts within the firm. Clients that are represented by the same firm and have a conflict Former client Attorneys conflict with currten client (Lawyer and Client conflict) 2 current clients (Client and Client)
Model Rule 1.11 Model Rule 1.12 Judge of mediator conflicts Government issues
Objectives Explore the conflicts issues arising when: A client and attorney enter into a business deal; A client wishes or attempts to give a gift to an attorney; An attorney acquires confidential client information; A client becomes a former client. One attorney in a firm is prohibited from taking on a representation. Dealing with Legal Services Organizations and Public Defenders Offices. Conflicts Arising Out of the Personal Interests of the Attorney Business Transactions with Clients Monco v. Janus 583 N.E. 2d 575 (Ill. Ct. App. 1991) When an attorney engages in a transaction with a client and is benefited thereby, a presumption arises that the transaction proceeded from undue influence Once the presumption is raised, the burden shifts to the attorney to come forward with evidence that the transaction was fair, equitable and just and that the benefit did not proceed from undue influence. Monco v. Janus 583 N.E. 2d 575 (Ill. Ct. App. 1991) Some of the factors the courts deem persuasive in determining whether the presumption of undue influence has been overcome include a showing by the attorney that he or she made a full and frank disclosure of all relevant information; that adequate consideration was given; and that the client had independent advice before completing the transaction. Model Rule 1.8: Conflict of Interest: Current Clients (a) Generally bans: business transactions with clients an attorney acquisition of an ownership, possessory, security or other pecuniary interest adverse to a client. [With the exception referenced on the next slide] 1.8(a) allows otherwise prohibited transactions/attorney ownership if: 1. the terms of the deal are fair and reasonable to the client; 2. outlined in a writing in a manner that can be reasonably understood by the client;
3. the attorney provides written notice of the desirability of seeking independent counsel and gives client time to do that; and 4. the client signs written informed consent. ABA Formal Ethics Opinion 00-418 Facts: Attorney exchanged legal services for ownership in clients business. ABA Committee said: such arrangements are business transactions with a client governed by MR 1.8(a); the MR 1.5 reasonableness standard applies if the attorney receives an ownership in lieu of a fee; and MR 1.7 applies to other conflicts Model Rule 1.8: Conflict of Interest: Current Clients (e) Forbids an attorney from assisting a client financially in connection with a pending or contemplated litigation but allows advancing of litigation expenses and court costs, even if client repayment is contingent upon the result of the litigation and outright payment of litigation expenses and court costs for indigent clients. (i) Prohibits an attorney from obtaining an ownership interest in a cause of action or subject matter of litigation in which the attorney is representing the client, but allows an attorney to: obtain a legally authorized lien as security for attorneys fees or expenses advanced by the attorney or enter into a valid civil litigation contingent fee agreement. (d) Prohibits an attorney from reaching or even negotiating an agreement giving the attorney literary or media rights to a story about the attorneys representation of a client before the attorney ceases the representation of the client. ***Probably gets by with client approval, however once the case is done with the representation then he can negotiate Conflicts Arising Out of the Personal Interests of the Attorney Gifts from Clients Model Rule 1.8: Conflict of Interest: Current Clients (c) Prevents an attorney from soliciting any substantial testamentary or gift from a client or preparing an instrument for the client that gives the attorney or his relative such a gift, except if the receiver of the gift is related to the client. [Relative: spouse, child, parent, grandchild, grandparent, or other relative with close familial relationship.] ***If a good friend wants to leave you something then you should have another attorney draw up the will
In re Crary 638 N.W.2d 23 (N.D. 2002) [The Rule] creates a strict and explicit prohibition against attorneys drafting documents which result in a substantial gift to the attorney or the attorneys parent, child, sibling, or spouse. - The attorney developed a relationship with an Harris, an elderly woman for whom he performed services such as bringing her meals, taking her to medical appointments, and visiting her regularly. - In addition, he accepted a loan from Harris which he failed to repay. - He also drafted a will which gave Crary power of attorney. - The supreme court found that the attorney had committed misconduct because: (1) the $ 3,500 payment to the attorney from the woman was a loan which constituted a prohibited transaction; and (2) the attorney's drafting of the will devising property to his wife was a prohibited transaction. HOLDING: The attorney was disbarred and WAS ordered to pay restitution to the woman. Comment [8] to MR 1.8 (allow it with informed consent of the client) MR 1.8 (c ) does not prevent an attorney from attempting to be appointed executor of the clients estate or to serve in another potentially lucrative fiduciary position. However, such an appointment might create a MR 1.7 conflict of interest. Need informed consent of the client Model Rule 1.8: Conflict of Interest: Current Clients (j) Bans sexual relations with the client unless a consensual sexual relationship predates the attorney-client relationship. Question: If you represent a corporation, does this mean you cannot engage in a consensual sexual relationship with anyone who works at that corporation? Look at Comment [19] Conflicts Arising Out of the Personal Interests of the Attorney Attorney Use of Client Information Model Rule 1.8: Conflict of Interest: Current Clients (b) Prohibits an attorney from using information relating to representation of a client to that clients disadvantage except when: the client provides informed consent, or the use of the information is permitted or required by the MRs. Duties to Former Clients
MR 1.9(c) an attorney who formerly represented a client may not later utilize information about the former representation against that client unless the MRs permit or require such use for a current client or the information becomes generally known. Model Rule 1.9(a): Duties to Former Clients Prevents an attorney from representing a client against a former client in the same or substantially related matter, if the former and new client have materially adverse interests except when the former client provides written consent. What is Substantially Related? Examples: Co-plaintiff becomes a defendant after the sharing of confidential information with other plaintiffs. [The attorney is disqualified.] Potential opposing party is a former co-defendant of a former client. The issue becomes whether the attorney actually received confidential information. Imputed Disqualification MR 1.10: Any attorneys MR 1.7 or 1.9 conflict of interest is imputed to other attorneys in his firm except: when ban on first attorney results from his personal interest and does not risk materially limiting the representationby the remaining lawyers. Rule reference 1.10, 1.0(c), 1.8(k), and 1.18(c)-(d) In re Sexson 613 N.E.2d 841 (Ind. 1993) In the present case - Thompson and the other attorneys used common letterhead, shared phone lines, and had apparent access to each others confidential information, and shared office personnel. It was reasonable for Mr. Zimmerman to assume that Thompson and Respondent were part of a firm31 OUTCOME: The court reprimanded and admonished respondent for engaging in conduct that was directly adverse to another client in violation of the Ind. R. Prof. Conduct..
Imputation of Conflicts
In office sharing arrangements, you must take measures to: Ensure the confidentiality of each clients information and To avoid public confusion from signs listing all attorneys, joint reception desks, the appearance of common attorney access to information, etc. Courts have rejected the idea that large firms with offices in multiple cities are separate firms. Practice Pointer 1. Do conflict checks. 2. Send e-mails to your partners advising of new clients/cases ASAP after accepting a new client. Imputed Disqualification Public Interest Organizations Legal Aid and Public Defenders are generally considered a firm. Generally, lawyers who work for the same nonprofit organization cannot represent clients with adverse interests. Courts sometimes allow otherwise prohibited representation in large public defenders offices. In re TChalla D 766 N.Y.S.2d 500 (N.Y. Fam. Ct. 2003) Where juvenile and criminal divisions of the Legal Aid Society simultaneously represented clients whose interests are adversethe divisions must be treated as a single firm. There is no per se rule that counsel withdraw from representing both clients, even where there has been simultaneous representation of potentially adverse interests. Further, there was no evidence that the legal aid society knowingly undertook simultaneously to represent both the parent and the child. As such, there was no significant conflict of interest. OUTCOME: The mother's motion to disqualify the law guardian was denied. Model Rule 6.5: Nonprofit and Court-Annexed Limited Legal Services Programs Grants partial exemptions from some conflict provisions to attorneys who provide short-term, limited legal services under court or nonprofit agency programs without realizing they are engendering conflicts of interest. Added in 2002 to make it easier for attorneys and firms to engage in short-term pro bono programs. Imputed Disqualification-Insufficiency of Screening in Law Firms Although the Ethics 2000 Report would have permitted screening without client consent. The private firm screening was not adopted by the ABA House of Delegates. The Restatement would allow screening when the confidential information received by the attorney in the former representation is not likely to be significant in the later case. Because current MR 1.10 does not mention screening, screening cannot be used to cure conflicts.
But it may be used to gain a former clients consent. Most model rules also apply to your lawyers in your firm 1.8(j) does not apply sexual relations Rule reference 1.9 Kanaga Playbook knowledge knowledge about how the former client normally behaves in similar factual settings or how it responds to legal challenges The use of common letterhead and common phone lines by the layers, as well as the open atmosphere within the office, can be seen as the equivalent of holding themselves out as a firm **You cannot use information that you have learned while representing the client against the client BUT there are exceptions
Class18, 10-20, 375-411

Objectives Consider the conflict of interest concerns surrounding former (and current) government attorneys. Identify circumstances that require a judge to disqualify or recuse herself. Discuss the federal and state procedures for disqualifying a judge. Consider the circumstances and procedures for remittal of disqualification. Conflicts of Interest: The Former and Current Government Attorney Model Rule 1.11 (not 1.10) applies. ABA Formal Opinion 97-409:A former government lawyer is therefore disqualified only from particular matters, involving identifiable parties, in which she personally and substantially participated while in government service, and her disability does not depend upon whether or not she would be adverse to her former government client in the successive private representation. MR 1.11(A) Prohibits a lawyer from accepting employment in connection with a matter the same as, or Substantially related to a matter which he or she took part as a public officer or employee.
Conflict Checks Regarding New Clients** When a firm gets new clients you need to check if other lawyers in the firm have any conflicts with the new client. Can be an issue with big firms
In re Sofaer 728 A.2d 625 (D.C. Ct. App. 1999) Rule 1.11(a) bars participation in overlapping government and private matters where it is reasonable to infer counsel may have received information during the first representation that might be useful to the second; the actual receipt ofinformation, and hence disclosure of it, is immaterial. Model Rule 1.11 Unless the law expressly provides to the contrary, a former government lawyer must follow MR 1.9(c )s limitations regarding his use of information against his former government client and cannot represent a client in a matter he participated in personally and substantially without written informed consent from the former government client. Matter is defined as a judiciary or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other affair concerning specific parties. Defines confidential government information as: data that was acquired via the authority of the government; the government cannot legally disclose or has a privilege not to disclose; and is not otherwise available to the public. ABA Formal Opinion 97-409 The former government lawyer may be barred by MR 1.9(c ) from representing a private client, against her former agency or otherwise, if she would be required to use or disclose information relating to her government representation. Even where the representation involved general agency rules or policies and not a specific matter. Disqualification may also be triggered by possession of confidential government information about an adverse third party. See, MR 1.11 (c ). Her disqualification is not imputed to her partners if she is screened pursuant to MR 1.11(b). Matter Confidential Government information as: - Data that was acquired via the authority of the government, - the government cant legally disclose or has a privilege not to disclose, and - is not otherwise available to the public
Kovacevic v. Fair Automotive Repair, Inc. 641 F. Supp. 237 (N.D. Ill. 1986) Under
[Rules 1.11(a) & (b)]
governmental consent is required only when the former government attorney wishes to represent a private litigant. Should the attorneys firm wish to represent the private litigant it need only notify the appropriate governmental agency, In addition to screening.
Effective Screening Must prevent the former government attorney from: Gaining access to the files; Sharing in the profits or fees; Discussing the suit with the firms attorneys or staff; and Reviewing case documents. Former Government Attorneys Some states have more restrictive rules designed to prevent the appearance of impropriety. Ethics in government statutes that prohibit appearances involving the attorneys former government employer are often more restrictive. See, 18 U.S.C. sec. 207(a). Conflicts of Interest: Former Arbitrators, Mediators, and Other ADR Neutrals
MR 1.12
These individuals cannot represent any party regarding the matter (of the ADR) absent written informed consent of ALL parties; Cannot negotiate for employment with any party or attorney for a party; Except a law clerk who can negotiate for employment after the clerk notifies the judge. Liteky v. United States 510 U.S. 540 (1994) A favorable or unfavorable predisposition can also deserve to be characterized as bias or prejudice. Judicial rulings alone almost never constitute valid basis for a bias or impartiality motion. Opinions formedin the course of the current proceedingsdo not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritismthat would make fair judgment impossible. MC 2.11: Disqualification Judge must disqualify herself if the judge knows that: She (as a fiduciary or individual) or her family has more than a de minimis economic or other interest in the case or a party.
She or her family are a party or director, trustee, or officer of a party or an attorney in the case. She has a non-de minimis interest at risk in the case. What Is a Third Degree of Relationship? Grandparents Great-Grandparents Parents Uncles/Aunts Siblings Children Grandchildren/Great-Grandchildren Nephews/Nieces Factors That Generally Will NOT Result in Disqualification Prior public statements about issues in cases. Prior involvement with the case/party as a judge. Prior service as counsel (including as prosecutor)against a party in previous (i.e. different) case. Procedures fro Judicial Disqualification and Recusal Once a party makes and files an affidavit that the judge is biased or prejudiced, that judge can do nothing else in that case. Another judge shall be assigned to hear that motion. The affidavit shall state the facts and reasons for the belief of bias/prejudice and be accompanied by a certificate of good faith made by counsel. See, 28 U.S.C. sec. 144 United States v. Sykes 7 F.3d 1331 (7th Cir. 1993) In passing on the legal sufficiency of the affidavit the court must assume the truth of the actual assertions, even if it knows them to be false. At the same time, the facts averred must be sufficiently definite and particular to convince a reasonable person that bias exists, simple conclusions, opinions or rumors are insufficient. United States v. Cooley 1 F.3d 985 (10th Cir. 1993) In applying 455(a), the judges actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the issue. The testis whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judges impartiality.
The standard is purely objective. Striking a Judge (and I dont mean hitting!) Many states allow a party to strike a judge for no stated reason within a limited amount of time after the judge is assigned (before rulings on motions). Most only allow a party to strike a judge once in a case. [The judge may take it personally so consider how many times you and your partners are in front of that judge.] Former (and Soon-to-Be Former) Judges See, MR 1.12 from earlier in this lecture.
Difference in 1.9 and 1.11

Matter in 1.9 same or substantially related case (broad) Matter in 1.11 particular issue involving specific parties, judiciary or proceeding or request for ruling, contract claim or controversy, investigation arrest or other affair 9excludes gov attorney that draft rules) Representation in 1.9 - Can not represent a new client that relates to a prior representation Representation in 1.11 - Cant represent a new client if the lawyer required confidential government information (data acquired solely by the government that they cant or has privilege not to disclose that is not otherwise not available to the public) Standard for disqualification for representing cline with adverse 1.9 deemed to have represented prior client Standard for disqualification 1.11 personal and substantial participation Purpose of 1.9 protect former client Purpose of 1.11 prevent gov attorney from using protecting gov information in the public arena 1.9 says the whole firm has a conflict and take the case 1.11 doesn apply to whole firm (attorney must not help or receive info) Mediators can represent former clients in the same or related manners without consent form all parties Model code for judicial conduct 2.11 (current) 1.10 if you move from one firm to another and there is a conflict of interest you can put up a Chinese wall so the rest of firm can represent
Class 19, 10-25, 412-434
Objectives Discuss sanctions for meritless pleadings under Rule 11 of the Federal Rules of Civil Procedure. Look at the Model Rules regarding frivolous contentions. Consider circumstances when attorneys can be sued for unjustified litigation. Review delay and discovery abuse. Frivolous Claims and Defenses in Civil Litigation/Procedural Sanctions Problem: After consulting with a second year medical student, an attorney files a medmal suit. Later the plaintiff admitted to his attorney that he had not followed the defendant doctors advice regarding further cancer testing. After a MSJ for dismissal is granted, is the defendant doctor entitled to Rule 11 sanctions against the attorney? Rule 11:Federal Rules of Civil Procedure Every pleading/motion/ paper must be signed by attorney of record or it will be stricken. Signature is attorneys certification to court that pleading/ motion/paper is not presented for improper or frivolous purpose to the best of the attorneys knowledge after a reasonable inquiry under the circumstances. [paraphrased, look at full Rule] Giangrasso v. Kittatinny High School 865 F. Supp. 1133 (D.N.J. 1994) Rule 11 imposes on counsel a duty to look before leaping and may be seen as a litigation version of the familiar railroad crossing admonition to stop, look and listen When deciding whether to impose sanctions a court must evaluate the reasonableness of the signers conduct at the time the pleading, motion or other paper was submitted. [T]he primary purpose of Rule 11 is to deter abuses of the legal system. [T]he sanction imposed should be the minimum that will serve to adequately deter the undesired behavior
Rule 11 Sanctions May be imposed on the attorney, firm or party after proper motion, notice and a reasonable time to respond. Reasonable expenses/fees. Nonmonetary directives. A penalty paid to the court. The court on its own sua sponte may determine that sanctions are in order.
Frivolous Claims and Defenses in Civil Litigation/ Attorney Discipline Attorneys most common defense to sanctions motions is their duty to zealously represent their clients. Note the word zealous only appears in the Preamble and Comments to the Model Rules, not in any Rule itself. Model Rule 1.1: Competence/1.3: Diligence MR 1.1-Requires an attorney to competently represent a client by using the legal knowledge, skill, thoroughness and preparation required. MR 1.3- Requires attorneys to act with reasonable diligence and promptness. [Also look at Preamble paragraphs [2], [8], [9].] Comment [1] to MR 1.3 An attorney is not required to press for every advantage that might be realized for a client. The attorney may have authority to exercise professional discretion in deciding how best to pursue a clients case. The attorneys duty to act with reasonable diligence does not mean that she must implement offensive tactics or forego treating of all persons involved in the legal process with courtesy and respect. Model Rule 3.1: Meritorious Claims and Contentions Prohibits an attorney from bringing or defending an action or asserting or challenging an issue in the absence of a basis in law and fact for doing so that is not frivolous. A good faith argument for an extension, modification or reversal of existing law is not frivolous. Allows criminal defense attorneys to nevertheless defend cases by requiring that every element of the case be established. ABA Formal Opinion 92-363 (1992) Threatening to bring criminal charges to advance a civil claim violates the MRs if: the criminal wrongdoing is unrelated to the civil claim, the lawyer does not believe both claims to be well-founded, or if the threat equals an attempt to exert or suggest improper influence over the criminal process. Threatening Criminal Prosecution Under the old Model Code, an attorney could not threaten to bring about a criminal prosecution to gain advantage over the opposing party. The current Model Rules contain no explicit ban of threatening criminal prosecution. However, a threat might violate:
MR 3.1 [frivolous lawsuits] MR 4.1 [untruthfulness in statements to others] MR 4.4 [actions having no purpose other than to harass, burden or delay] MR 8.4 [criminal acts reflecting on attorneys fitness to practice law or conduct prejudicial to the administration of justice]
Civil Litigation: Pretrial Delay Model Rule 3.2: Expediting Litigation Requires an attorney to make reasonable efforts to expedite litigation in a manner consistent with the interests of the client. Comment [1] to MR 3.2 Delay tactics bring disrepute to the judicial system. They may be proper at times for the attorneys personal reasons. But attorneys cannot consistently delay litigation for their own convenience. Cannot defend a delay request by saying, everyone does it. The critical question is whether a competent attorney acting in good faith would believe the attorneys conduct has some substantial purpose other than delay. Financial benefit to the client is not a legitimate client interest. Civil Litigation/ Discovery and Disclosure Abuse Model Rule 3.4: Fairness to Opposing Party and Counsel prohibits: unlawfully obstructing access to evidence, falsifying, changing, destroying or hiding an item having potential evidentiary value counseling or aiding someone in doing so, knowingly disobeying a courts rules, making frivolous discovery requests, or failing to make a reasonable diligent effort to comply with discovery requests. Disclosure and Discovery The MRs do NOT require a party to disclose evidence (except in ex parte proceedings), but MR 3.4 requires compliance with the rules of the court regarding disclosure and discovery requirements. Since 1993, Rule 26(a) of the Federal Rules of Civil Procedure has required a party to disclose certain information even without a discovery request. The 2000 Amendment limited that to items that the disclosing party may use to support its claims or defenses as well as damages and insurance information. Attorney must sign certifying that disclosure is complete and correct to the best of the attorneys knowledge.
Washington State Physicians v. Fisons Corp. 858 P.2d 1054 (Wash. 1993) [T]he discovery rules do not require the drug company to produce only what it agreed to produce or what it was ordered to produce. The rules are clear that a party must fully answer all interrogatories and all requests for production, unless a specific and clear objection is made. If the drug company did not agree with the scope of production or did not want to respond, then it was required to move for a protective order Most Common Discovery Abuses: Refusing to provide information. Hiding information. Raising frivolous privilege claims. Disingenuously construing discovery requests narrowly. Destroying documents. Assisting in perjury. Coaching witnesses to avoid disclosing information. Providing deliberatively evasive answers to discovery requests. Duty to Client or Judicial System? An attorneys duty to a client can never outweigh his or her responsibilities to see that our system of justice functions smoothly. Malautea v. Suzuki, 987 F.2d 1536 (11th Cir. 1993). Rule 37 of the Federal Rules of Civil Procedure A party may apply for an order compelling discovery after: reasonable notice to the opposing side, a good faith effort to confer with the opposing side, and may request sanctions. Practice Pointer Judges HATE to referee discovery disputes. So try to solve them on your own first. Fight over the important matters, not every trivial issue. And many discovery disputes are not very important.
Problem on 412, investigation is not sufficient, doesnt meet the presuit process. Do take clients word for it you must investigate and get all relevant information and send it to an expert. Med mal you usually wait for a response for maybe a settlement or until the amount of days had passed before you can file suit 2) whether the deny was appropriate. No you should not investigate nothing and deny everything.
Sanctions, rule 11 fderal procedure violation. fine them, reprimand Frivolous not finding out the basic reasonable inquiries under the circumstances (for both sides, for all court docs, answer motions, everything with lawyer ceritifcation (signature, ), etc) Rule preamble 2,8,9, rules 1.1, 1.3, 3.1, 3.2, and 3.4c
Class 20, 10-27, 435-453

Objectives Understand the prohibition of ex parte contact with represented parties. Identify the persons who can be asked by an attorney not to communicate voluntarily with opposing counsel. Briefly note the rules applicable to contact with unrepresented witnesses. Emphasize the reach and importance of the ban on ex parte communication with judges and jurors.
Ex Parte Communication: Represented Persons Problem: A plaintiffs attorney in a slip-and-fall case contacts several witnesses who have some relationship with the defendant. Are these contacts proper? Public defender Miranda Crites represented Wahl, who was charged with escaping a federal prison. He tried to claim is was a necessity defense based on threats of violence against by another inmate, Jesse Hinson. Wahl hoped to call Neil mason, who resided in the cell next to him. The lawyer Crites spoke with Mr. Mason who was in the cell next to Mr. Wahl and decided that the story needed to include the facts that Mr. Wahl was being threaten that night he escaped. Mr. Mason testified to that story at trial. 1. Could look at rule 3.4(b) which makes it illegal for an attorney to falsify evidence or to advse or help a witeness testify falsely. (number 3) 8.4(b) which bans fraud, deceit, or misprepresentation. 2. 3. It was fine if you look at number 2 in the rule reference, Witness- can only pay reasonable expenses (parking at the court house, missing time at work, gas money) - Should not be paid to tell the truth Expert Witness- You are allowed to pay a fee to be there - not a fact witness, they didnt see the crime Model Rule 4.2: Communication with Person Represented by Counsel
Prevents communication by a lawyer for a client with a represented opposing client except: when the other attorney has consented or communication is authorized by court order or law. Comments to MR 4.2 [7] bans communications with a constituent of a represented organization who supervises, directs or regularly consults with an attorney, who can bind the organization or whose act or omission can be imputed to the organization forcivil or criminal liability. Does allow contact with former employees. [4] Some disagreement as to whether contact may be made with represented government agencies.
In Re Vincenti Facts - Vincenti has been subject of no more than 3 reported decisions concerning violations of Rules of Professional Conduct. Some include, disrespect, even contempt for judges, lawyers, parties, witness, and the judicial process. Res OUTCOME: The court ordered respondent attorney disbarred based on its independent review of the record and its conclusion that, in view of respondent's continuous disregard for clients, the judicial system, and the disciplinary process, disbarment was the only appropriate sanction.
In re Air Crash Disaster Near Roselawn 909 F. Supp. 1116 (N.D. Ill. 1995) [W]hen the named party is a corporation,it is more difficult to delineate the parameters and scope of the protected class. Corporations can only act through individuals; but it can be troublesome to determine which individuals are the represented parties protected by the rule. Claimants previously filed a consolidated action against the aircraft manufacturer and the airline company following a commercial airline crash. - The aircraft manufacturer and the airline company filed motions for sanctions, alleging that members of claimant's counsel violated Rule 4.2 and 4.3 by sending a questionnaire to the airline company's pilots that inquired into the training and experience of pilots in icing conditions. Rule 4.2 In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. COURT found the sending of the ATR questionairre and its receipt of the Simmons pilots to be an ex parte contract in violation of Rule 4.2
Rule 4.3 The airline defendants argues that the plaintiffs counsel sent deceptive cover letter that concealed that the questionnaire was being done at the direction of counsel for use in pending litigation. The letter explained that the pilots names were provided by the FAA strongly implying that the FAA was participating or at least had endorsed the survey.
- The questionnaire was sent at the time that the National Transportation Safety Board was investigating whether icing conditions played a significant role in the accident. The court granted the motion for sanctions, holding that the facts surrounding the questionnaire disclosed clear ethical violations.
OUTCOME: The court found that the questionnaire was an ex parte contact in violation of Ill. Sup. Ct. R., R. Prof. Conduct 4.2 and that the accompanying cover letter contained misleading information in violation of Ill. Sup. Ct. R., R. Prof. Conduct 4.3. The court ordered that all questionnaires be returned to the defense counsel and held that the questionnaires were barred from being offered as evidence in the case. The Ps counsel not only failed to take precautions to prohibit any misunderstandings associated with the cover letter and ATR Questionnaire, but also affirmatively violated the rule by not fully disclosing their representative capacity and the true motive behind obtaining such information.
Model Rule 4.4: Respect for Rights of Third Persons Bans conduct that has no substantial purpose other than to embarrass, delay or burden someone and evidence gathering mechanisms that violate someones rights. Ex Parte Communication: Unrepresented Witnesses Model Rule 3.4: Prohibits an attorney from asking a non-client to refrain from voluntarily giving relevant information to another party except when the non-client is a relative, employee or other agent of a client and the attorney reasonably believes the non-clients interests will not be adversely affected by refraining from giving such information.
[Such a situation might occur where a witness might protect himself by cooperating with police/prosecutor.] Model Rule 4.3: Truthfulness in Statements to Others Prevents an attorney from knowingly: Misstating the facts or law to a non-client; or Neglecting disclosures of material facts when Disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. **Have a duty to correct the problem (document, letter) if it is misleading. In re Air Crash Disaster Near Roselawn 909 F. Supp. 1116 (N.D. Ill. 1995) FACTS: The cover letter that went with the questionnaire was found to be misleading. It did not disclose that the questionnaire was prepared at the attorneys request for the plaintiffs and went to great lengths to persuade the recipient of its neutral and unbiased character. HOLDING: The Court found this was a violation of MR 4.3. An attorney cannot evade his professional or ethical obligations by delegating.[to a] paid expert or consultant. MODEL RULE 4.3: DEALING WITH UNREPRESENTED PERSON Prevents an attorney, who is dealing with an unrepresented person, from stating or implying she is disinterested. Requires the attorney to make reasonable efforts to correct the unrepresented persons misunderstandings (if any) about the lawyers role. Bans giving legal advice other than the advice to secure counsel if lawyer knows or should know that the unrepresented persons interests are adverse to her client. MODEL RULE 8.4: MISCONDUCT (a) Prohibits an attorney from: violating or trying to violate the MRs, knowingly helping or inducing someone else to do so, or doing so through the acts of another. MODEL RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS (c ) Holds an attorney responsible for conduct of a non-lawyer that violates the MRs when: the attorney orders the conduct, when the attorney learns of the conduct and ratifies it, or The attorney fails to remedy the consequences when that can still be done.
Ex Parte Communication: Judges Model Code 2.9 Model Code 2.9: Prohibits ex parte communication by/with the judge regarding a pending or impending matter except: for scheduling if no party will gain an advantage and all parties are promptly notified, a judge may confer separately with the parties for settlement purposes if all the parties agree. [Read MC 2.9 and Comments for all exceptions.]
MODEL RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL Forbids an attorney from attempting to: influence a judge, juror, prospective juror or other official through illegal means or communicating ex parte with any such person during the proceeding unless permitted by law or court order. In re Ragatz 429 N.W.2d 488 (Wis. 1988) Judicial initiation of the ex parte contact does not absolve the contacted attorney of responsibility to avoid contact. Failure to provide opposing counsel a copy of a letter to a judge is misconduct. The ineffectiveness of the ex parte communication is irrelevant to the misconduct determination. MR 3.5(b) eliminates the Model Codes former limitation of the prohibitions reach to only communications about the merits. ABA Judicial Conduct Code [2.9] limits communication to those about a pending or impending proceeding. Practice Pointer You may write the judge but you must send a copy to your opponent and have your opponents copy delivered before the judges copy. MODEL RULE 3.3: CANDOR TOWARD THE TRIBUNAL (d) requires an attorney in a permitted ex parte communication with the judge to: advise the court of all material facts known to the lawyer that will enable the tribunal to make an informed decision, even if they are adverse to that attorneys position. EX PARTE COMMUNICATION: JURORS
MODEL RULE 3.5(c): IMPARTIALITY AND DECORUM OF THE TRIBUNAL Prevents an attorney from communicating with a juror or prospective juror after the jury is discharged when: a court order or law bans that communication, the juror has informed the attorney she does not want to speak with him, or the attorney misrepresents, coerces or harasses the juror.
Employees that have left are fair game for ex parte 4.2 Comment 7 allows this Witness that dont work for company are fair game Managers cannot be contacted ex parte No model rule violation for talking to the other parties expert
Rule reference 4.2, 4.4(a), 3.4(f), 4.1(a), 4.3, 8.4(a), 5.3 Airplane crash Rule reference 3.5 and 3.3(d) In re ragatz
Class 21, 11-1, 453-482

Objectives Discuss the fuzzy line between permissible witness preparation and impermissible suborning of perjury. Outline the circumstances when an attorney must cite adverse precedent. Discuss other restrictions on trial attorneys. Look at Fair Trial vs. Fair Press. Litigation: Presentation of Evidence MR 8.4 Tells us a lawyer engages in professional misconduct: if she acts in a manner involving dishonesty, fraud, deceit or misrepresentation. [Look at MR 1.0 for definitions of terms.]
Model Rule 3.3: Candor Toward the Tribunal (b) Requires an attorney who knows that someone is acting, plans to act or has acted in a criminal or fraudulent manner regarding a trial proceeding to take reasonable steps to remedy that including
disclosure to the tribunal. (a)(3) prohibits an attorney from: presenting evidence the attorney knows to be false, take corrective steps, including telling the court, if learns evidence presented by him, client or witness was false and permits attorney to decline to offer evidence he believes to be false except for the testimony of a defendant in a criminal matter. Model Rule 3.4: Fairness to Opposing Party and Counsel (b) prohibits (shall not) an attorney from falsifying evidence, helping a witness to testify falsely, or offering a witness an illegal inducement. Comment [3] does not prohibit paying a witnesss expenses, or fees to an expert witness. [Also look at MR 1.2(d) discussed previously.]
Presentation of Evidence 1. A lawyer cannot misstate a fact but has no duty to present adverse facts (except in ex parte proceedings, see MR 3.3(d)). 2. Limited witness preparation is permitted: A lawyer may interview a witness for the purpose of preparing a witness to testify. (Restatement sec. 116(1)). Most trial attorneys believe this is essential. Rule reference 3.4(c) and (e), 4.4(a), 8.4(d), 3.5(d), 1.0(m), 3.2, 3.7 In re Vincenti 704 A.2d 927 (N.J. 1988) By asserting falsehoods and misrepresentations in his certifications filed withthe Appellate Division and the Supreme Court, respondent also violated [Rule] 3.3(a)(1), which prohibits making a false statement of a material fact or law to a tribunal, and [Rule] 8.4(c ), which proscribes conduct involving dishonesty, fraud, deceit or misrepresentation. Litigation: Other Trial (Mis)Conduct Despite what TV and movie lawyers do: real lawyers do not blurt out facts or ask wildly improper questions and then just say withdrawn, as if that cured your misconduct.
Youd likely need to bring your toothbrush for your night in jail for contempt if you tried this.
In re Vincenti 704 A.2d 927 (N.J. 1988) Respondent also violated [Rule] 3.4(e), which prohibits an attorney from alluding to irrelevant matters, asserting personal knowledge of the facts or issues, or stating a personal opinion as to the justness of a cause, the credibility of a witness or the culpability of a [party]. Respondents antics were also held to be violations of MRs 3.5(c ) and 4.4. Model Rules: MR 3.5 outlaws actions intended to disrupt a tribunal. MR 4.4 bans conduct that has no substantial purpose other than to embarrass, delay or burden someone. MR 8.4 if a lawyer acts in a way that is prejudicial to the administration of justice it equals professional misconduct. MR 3.4(c ) prohibits a lawyer from knowingly disobeying a tribunals rules. Responses to Courtroom Antics Often an apology by the attorney results in a less severe sanction. In Vincenti, the court defended its severe sanction, in part, by pointing to the attorneys refusal to apologize. Should there be an apology discount? Some have advocated codes of civility or professionalism. Do you think they are helpful? Litigation: The Lawyer as Witness MR 3.7 an attorney cannot act as as advocate at a trial where that attorney is likely to be a necessary witness, unless: the attorney will testify about an uncontested matter; the attorney will testify about the kind/cost of legal services provided; the client would endure substantial hardship if the attorney were disqualified. An attorney can be advocate if another attorney in her firm is likely to be a witness unless prohibited by MRs 1.7 or 1.9 re: conflicts of interest. Fair Trial/ Free Press [A look at the case on which The Fugitive is loosely based.] Sheppard v. Maxwell, 343 U.S. 333 (1966). From the cases coming here we note that unfair and prejudicial news comment on ongoing trials has become increasingly prevalent. Due process requires that the accused receive a fair trial by an impartial jury
free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. Model Rule 3.6: Trial Publicity (a) Prohibits an attorney who is working on a case from making an extrajudicial statement when s/he knows or reasonably should know it will be disseminated through public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding. (d) This ban also applies to the attorneys associated in a firm or government agency with the attorney covered by MR 3.6(a). Model Rule 3.6: Trial Publicity (b) Regardless of MR 3.6(a), an attorney is allowed to state: the claim, offense or defense involved and, unless forbidden by law, the identity of the persons involved; data in public records; that an investigation of a matter is in progress; scheduling information or the results of steps in the case; a plea for help in finding evidence; a danger warning to an individual or the public if there is reason to believethe likelihood of substantial harm. (b) Regardless of MR 3.6(a), an attorney is allowed to state: the accuseds identity, residence, occupation and family status; information required to assist in apprehension of the accused; the fact, time and place of arrest; a list of investigating and arresting officers or agencies plus the length of the investigation. Model Rule 3.6(c ): Trial Publicity Regardless of MR 3.6(a) an attorney may make a statement that a reasonable lawyer would believe is required to counter the substantial undue prejudicial effect of recent publicity that the attorney and the client did not initiate, but such a statement must be limited to such information as is necessary to mitigate the recent adverse publicity.
Comment [5] to MR 3.6 Subjects likely to have prejudicial effect include: character, credibility, reputation or criminal record of parties, witnesses or suspects; identity or expected testimony of witnesses; the possibility of a guilty plea or confession; the results of tests or the persons refusal to take a test; opinions about a defendants guilt or innocence; inadmissible evidence; the charging of a defendant unless there is an explanation that charging is not a verdict and the defendant is presumed innocent until proven guilty. Model Rule 3.8: Special Responsibilities of a Prosecutor (f) Allows a prosecutor to make statements needed to advise the public of the nature and extent of the prosecutors action when such statements promote a legitimate law enforcement purpose, but otherwise requires prosecutors to refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. The prosecutor must also exercise reasonable care to prevent law enforcement officials from making statements the prosecutor could not. Other Potential Issues Gag Orders Cameras in the courtroom Public statements by judges (see MC) Comments by lawyers who are not attorneys of record (outside scope of MR 3.6)
Class 22, 11-8, 483-511

Objectives Discuss the responsibilities of the prosecutors and criminal defense attorneys. Explore the attorneys role as advisor, evaluator to someone other than a client, and as ADR neutral. Model Rule 3.8: Special Responsibilities of a Prosecutor Requires a Prosecutor to: Undertake reasonable efforts to ensure accused is advised of right to an attorney, Refrain from seeking waivers of important pretrial rights, like preliminary hearings, Timely disclose all known evidence that tends to negate the guiltor mitigates the offense, Disclose to court and defense all known unprivileged mitigating information as regarding sentencing,
To refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. Civil Case Criminal Case Model Rule 3.8: Special Responsibilities of a Prosecutor (e) Prohibits a Prosecutor from subpoenaing an attorney unless reasonable believes: No privilege protects the information, The information is critical to the case, There is no feasible alternative to obtain the information. (f) [See notes from last lecture on restrictions on public statements about case.] Other Model Rules Applicable to a Prosecutor MR 4.2: Prohibits ex parte contact with represented party--can create issues with defendant trying to cut a deal with police/prosecutor. Comment [6] to MR 3.8: Subject to discipline under MR 5.1 or 5.3 if dont control nonlawyer subordinates. Does this mean the prosecutor must instruct the police not to get suspects to waive the right to remain silent? To waive their right to counsel in interviews? To consent to warrantless searches? As litigators and attorneys, prosecutors are subject to all of the restrictions that apply to other attorneys. Rule reference 3.8 and 4.2 Berger v.United States 295 U.S. 78 (1935) The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. Prosecutors transgressions in this case: Reasonable belief by the prosecutor to bring a charge against the defendant (probable cause) Attorneys do not need probable cause, but instead can bring or defend a case as long as there is a nonfrivolous basis in fact or law for doing so
Misstating facts in cross; Misstating witnesses testimony; Suggesting statements out of court which had never been made; Assuming prejudicial facts not in evidence; Bullying/arguing with witnesses; and Acting unprofessionally.
Rules for Criminal Defense Attorneys MR 1.2(b): Attorney does not endorse the clients views by representing him. MR 6.2: Should accept court appointment unless case/client so repugnant that representation would be impaired. MR 1.16: Can decline/withdraw when clients conduct is repugnant or attorney has fundamental disagreement with it. MR 1.1: Must competently represent client. MR 1.3: Must act with reasonable diligence and promptnes s. [Also see Comment [1]]. Model Rule 4.2 (The No Contact) Rule and Criminal Defense Attorneys The victim of a crime is not represented by the prosecutor. So the criminal defense attorney can contact victim directly, unless personally represented. MR 4.2(f): prosecutor cannot ask victim or witnesses not to talk to criminal defense attorney. If criminal defense attorney wants to talk to represented co-defendant, must seek permission of co-defendants attorney. Does this seem fair? Other Applicable Model Rules MR 3.1 prohibits bringing/defending frivolous claims except criminal defense attorneys may require that every element of the case be established. MR 3.3 prohibits introducing evidence the attorney knows to be false and take corrective actions if learns this has occurred, permits an attorney to decline to offer evidence the attorney reasonably believes to be false except for the testimony of a defendant in a criminal matter. The Lawyer as Advisor MR 1.4(b) Requires an attorney explain a matter to the extent necessary for the client to make informed decisions. MR 2.1 Attorneys may give candid advice not only to legal issues but also to moral, social[,] political issues. Comment [5] MR 2.1 Attorney not expected to give advice unless client asks for it, except when a client wants to proceed in a manner that is likely to result in substantial adverse legal consequences.
Comment [1] MR 2.1 Client deserves straightforward advice expressing the lawyers honest assessment. Rule reference 1.4, 2.1, 2.3, 1.6, and 1.13 U.S. Trustee v. Bresset (In re Engel) 246 B.R. 784 (Bankr. M.D. Pa. 2000) The obvious rationale [to explain documents to the client] is the concern that a client have sufficient information to participate intelligently in the decisions that the client must make. The ultimate decisionsremain the clients, This does not mean, however, that a lawyer can blithely allow a client to casually complete or review [documents] without guidance as to the consequences of such action. The Lawyer as Evaluator MR 2.3(a): Allows an attorney to evaluate a matter for a non-client when he reasonable believes it is compatible with the attorney-client relationship. MR 2.3(b): Forbids an evaluation for a non-client without informed consent when the attorney knows or reasonably should know that it will negatively affect the clients interests. MR 2.3(c ): 1.6 confidentiality protects evaluation information unless disclosure is authorized. Vanguard Production v. Martin 824 F.2d 375 (9th Cir. 1990) An attorney owes a common law duty of ordinary care and workmanlike performance on the underlying contract with his client. When an attorney knows or should know that an opinion he prepares may be exhibited to nonclients, this common law duty extends to these same nonclients. The Lawyer as Evaluator Opinions by attorneys play a large role in securities, banking, real estate, oil and gas, and other transactional practices. [Review MRs 1.6 and 1.13 discussed earlier this semester.] Avoid making definitive, unqualified statements and remember that opinion letters may be seen by readers you dont expect. The Lawyer as Related to ADR Issues Can an attorney stretch the truth in ADR negotiations? ADR Mediations and arbitrations (binding and non-binding) Answer: MR 8.4: It is professional misconduct to act in a manner involving dishonestly, fraud, deceit or misrepresentation.
Preamble paragraph [2]: Can pursue a settlement but must deal honestly with others as a negotiator. MR 3.3: Cant make false statements to the tribunal (would only apply to binding arbitration as related to ADR). MR 4.1: Must be truthful in statements of fact to others (applies to ADR except binding arbitration). [Look at Comment [2] defines exceptions to statements of fact including estimates of worth, a partys intentions to settle, whether acting for an undisclosed principal.] The Lawyer as ADR Neutral Preamble paragraph [3]: An attorney may serve in a non-representational role as ADR. MR 2.4(a): Serve as ADR neutral when help two or more non-clients resolve a dispute. Must inform parties that you do not represent them. Make sure party understands lawyers role. MR 1.12 discusses the conflicts of interest if one party subsequently asks mediator to represent them. [Not allowed absent informed consent of ALL parties.]
Rule 3.8a. a prosecutor can file only those charges that are supported by probably cause A prosecutor cannot file a charge unless they believe that the D committed the crime charged and that there is evidence to support that conclusion Prosecutor can not imply to jury that constitution rights (not speaking to police) being used makes them guilty The only time a public defender should reject a case is when continuing the representation would violate rule 6.2cs prohibition against representing clients when the case is so repugnant to the lawyer that the lawyers ability to adequately represent the client will therefore be compromised Rule 1.4(a)(4) requires an attorney to promptly provide information about a case when the client reasonably asks for info
Class 23, 11-10, 511-532

Objectives Review the ABA Model Code of Judicial Conduct Preamble [1] An independent, fair and impartial judiciary is indispensable to our system of justice.[]
Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. [2] judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. [3] The Model Code provides standards, it is not an exhaustive guide. It is intended to provide guidance to judges and provide a basis for regulating them via disciplinary agencies. Scope There are four Canons which state general principles of judicial ethics. Under these Canons are Rules and Comments. A judge may only be disciplined for violation of a Rule. Where a Rule says may or should, it is left to the judges discretion and no disciplinary action will be taken for the judges decision. Comments are not Rules and provide examples and aspirational goals. The Model Code is not intended to be the basis for civil or criminal liability. Application (B) A judgeis anyone who is authorized to perform judicial functions, including an officer such as a justice of the peace, magistrate, court commissioner, special master, referee, or member of the administrative law judiciary. Canon 1 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Canon 2 A judge shall perform the duties of judicial office impartially, competently, and diligently. Canon 3 A judge shall conduct the judges personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.
Canon 4 A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary. Rules Under Canon 1 MC 1.1: Comply with the law. MC 1.2: Act at all times in a way to promote public confidence in the independence, integrity and impartiality of the judiciary. Improprieties may include: Violations of law, activity that negatively reflects on honestly, impartiality, temperament, fitness to serve as judge. MC 1.3: Cannot abuse the office to advance the judges own personal or economic interests or allow others to do so. Examples: Try to get out of speeding ticket, Using letterhead for personal business, Contributing to non-profit publications. Rules Under Canon 2 [There are 16-we will only highlight a few here.] 1.Duties of judicial office take precedence over personal/extrajudicial activities.(MC 2.1) 2.Perform all duties fairly and impartially. (MC 2.2) 3.Avoid bias or prejudice and require lawyers in front of them do the same. (MC 2.3) 4.Not be swayed by public opinion or fear. (MC 2.4) 5.Allow litigants to be heard, may encourage settlement but not coerce it. (MC 2.6) 6. Must hear/decide all matters assigned to judge, unless disqualified. (MC 2.7) 7.Require order and decorum in the courtroom, be patient and courteous, not criticize a jurys verdict. (MC 2.8) 8. Avoid ex parte communications, not independently investigate a case and ensure his staff follow this Rule as well. (MC 2.9) 9.Not make public statement on pending cases. (MC 2.10) 10. Disqualify himself when impartiality might be questioned (MC 2.11) 11. Take action if suspects an attorney or another judge has disability or impairment. May include making a confidential referral to lawyer assistance program. (MC 2.14) 12. Inform proper authorities if another judge or lawyer has violated the Rules. (MC 2.15) Rules Under Canon 3
1. Shall not engage in activities that interfere with judicial performance, frequently disqualify judge, undermine integrity or impartiality, appear coercive, use court premises or staff for nonlaw related activities. (MC 3.1) 2.Shall not voluntarily appear at public hearings. (MC 3.2) 3. Shall not testify as a character witness. (MC 3.3) 4. Shall not accept appointment to government committee. (MC 3.4) 5. Shall not be member of discriminatory organizations. (MC 3.6) 6. Limitations on charitable or civic activities. (MC 3.7) 7. Shall not accept appointment as a fiduciary. (MC 3.8) 8. Shall not act as ADR neutral. (MC 3.9) 9. Shall not practice law. (MC 3.10) 10. Shall not accept gifts undermining judges independence, integrity or impartiality. (MC 3.13) Rules Under Canon 4 1. Shall not be connected with political campaigns or make false or misleading statements. (MC 4.1) 2. Must resign from bench if becoming candidate for elected office.(MC 4.5)

Ritter Professional Responsibility Spring 2010

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Ritter Professional Responsibility Spring 2010

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**** USE Rigos

book for EXAM

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fee agreement must include:

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Class 1, 8-16, MR Preamble and scope

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Class 2, 8-18, 1-22 Chapter 1

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Class 3, 8-23, 22-40

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Class 4, 8-25, 41-62 Chapter 2

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Class 5, 8-30, 62-83

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Class 6, 9-1, 83-112

***Model Rule 8.1: Bar Admission and Disciplinary Matters-PP

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Model Rule 8.5: Disciplinary Authority; Choice of Law

****Duty to Report Misconduct: Model Rule 8.3

***Model Rule 1.6 is the KING of modern

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****Model Rule 5.4: Professional Independence of a Lawyer*****

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Chapter 3 Attorney-Client Relationship, 9-8, 113-138

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Comment [1] to MR 7.2: Advertising**************

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Establishing the Attorney/Client Relationship (121)

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Declining, Terminating or Limiting Representation************

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Hotel and Casino

Class 8, 9-13, 138-158

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Class 9, 9-15, 158 -189

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NO, the court does not like you to double bill

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Rule reference 1.59c)-(d) ad 1.8(e) &(i)

Contingent fee agreement must include:

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Rule reference, 1.5(e) & 5.4 (a)

Class 10, 9-20, 189-207

Model Rule 5.4: Professional Independence of a Lawyer*

*Wigmore on Attorney-Client Privilege The definitionNOT Confidentiality