Chapter 1: Introduction A. Ethics Sources: 1. 2. Philosophy Rules/Standards 3. 4. 1. Model Rules of Professional Conduct (MR, Rules) Know These! #.

ow These! #.# Code of Professional Responsibility (CPR, Code) Not Tested on Related Statutes Agency/Partnership Lawyer (agent) Client (principal) Civil Procedure Rule 11, 26 Constitution Law Contracts L/C relationship established by contracts Criminal Law/Procedure Evidence Attorney Client privilege Torts Remedies

Related Areas of Law, e.g.:

Restatement of Law Governing Lawyers (RLGL) Rights Based, Deontological: A right to autonomy a. Focus on act Look at the character of the act itself, ask: is it a righteous act or a bad act? b. Maxim: Persons as ends, not means; respect for personhood You must never use a person as a means to an end Ex: When do Ls use person as an object? When Ls believe C shouldnt take deal, because can get better deal.

B. Ethical Theories

2.

Consequential, Teleological: a. Focus on consequences b. Maxim: greatest food for greatest number

3. 1.

Relational, Ethic of Care Instrument of Client L just here to serve his C Hired gun. I will do whatever my client says

C. Common Lawyering Roles

2.

Parent/Director

 3. 1. 2. 3. 4. 5.

Basically paternalism. Problematic Im the professional You dont understand how the world works honey Maintain some objective distance, but foster the relationship to allow client to make educated decisions. Give and take relationship. **Most helpful** RULE 1.6

Collaborator

D. Major Ethics Issues In Spaulding (and course): **Major issues well go through** Duty to keep client confidences (not to tell s has health issue) Competence (Duty to be competent as an attorney) RULE 1.1 Communication RULE 1.4 Loyalty issue (conflict of interest) RULE 1.7 1.9 Duties to 3rd parties, or society

I. Judicial and Professional Regulations of Lawyers (Chapter 2) A. Admission State Supreme Court decides who is admitted 1. Requirements for membership in bar: a. c. Education completed law school Oath District courts Member of bar in which court sits Court of Appeals Bar member of any state SCOTUS Have practiced for 3 years, and a member of SCOTUS bar presents you Patent Pass patent bar e. Character and Fitness Burden: on Law Applicant. I have the affirmative responsibility to show that I have the appropriate character & fitness. Standard: Clear and Convincing evidence needed. Honesty, integrity, and trustworthiness in professional relationships with respect to all legal obligations Respect for the law Ability to act professionally b. Bar exam (or waive) need to pass d. Federal Court Requirements

Behavior considered problematic: Criminal record, abusive conduct, academic misconduct, neglect of professional or financial obligations, or lack of candor in applying for the bar.

f.

Statements or omissions in applications: Misstatements on application or omissions death sentence.

g. Application of ADA(admission) See 8.1

Rule 8.1 Bar Admission And Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) (b) Knowingly make a false statement of material fact; or Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Americans with Disability Act - Mental health is protected ADA cant discriminate against someone with disability. Of course, have to make reasonable accommodations and if they would be able to practice law adequately. Difference between discriminating against someone and saying not qualifying for the bar.

See In re Application of Ralls

Not admitted because: (1) length of time hes been sober & (2) Ralls didnt admit his problem.

(Problem 2-1) 2.

Pro hac vice: for this time

Should be granted unless legitimate state interest No due process right to pro hac vice Due process rights if revoked But once admitted to that state bar, have DP.

B. Discipline 1. 2. Source: Supreme Court (state, federal) Federal courts have equal ability to discipline someone in their court Complaint Someone files a complaint (can be a client, another lawyer, judge Attorney who is reported on, does not have right to file defamation claim against the reporter 3. Hearing Standard. Quasi-criminal, procedural safeguards *Not tested on* Appeals through courts or state bar Ultimately decided by state supreme court (absent federal constitution claim) Process

Sanctions (least worst)

Private reprimand Reprimand but not in bar journal (so private) Public reprimand or censure Suspend Disbar SC can require training, restitution, etc. SC can be very creative in their sanctions. i.e. Bush case had to follow through with counseling.

4.

To Determine Appropriate Sanction, consider: The duty violated Lawyers mental state Knowingly worse than negligently Injury or potential injury Aggravating or Mitigating factors
Mitigating Factors Personal and emotional problems Physical or mental disability Absence of prior disciplinary violations or selfish motive Timely efforts to rectify arm A cooperative attitude toward disciplinary board Delay in the disciplinary proceedings Inexperience in law practice Good character and reputation Other penalties imposed for same conduct Remorse And remoteness of prior offenses

Aggravating Factors Past discipline, Dishonest or selfish motive Pattern of misconduct or multiple offense Obstruction of a disciplinary proceeding Refusal to acknowledge responsibly Vulnerable victim Substantial experience in law practice And illegal conduct.

See Bush pg. 41 C. Grounds for Discipline. 8.4 - Misconduct

It is professional misconduct for a lawyer to: (a) Violate, attempt, help or assist another in violating rules of PC. (b) Criminal acts. (c) Dishonesty. (d) Prejudicial conduct. (e) Influence. (f) Assist judge in violating.
Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) (b) (c) (d) (e) (f) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; Engage in conduct that is prejudicial to the administration of justice; State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. NOTES: Doesnt have to be criminal act Can be personal or professional Doesnt have to be in your jurisdiction

D. Duty to Report Behavior 8.3 2 Threshold requirements prior to duty to report. 1. IF: (1) L Knows of the violation; and (standard is knowledge 1.0(f)) (2) The misconduct raises a Substantial Question as to the Ls honesty, trustworthiness or fitness as a L. (8.3) = Then duty to report. 2. UNLESS protected by 1.6 If applies need to discuss it with C to try and get informed consent to report it.

Rule 8.3 Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) (c) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Knowledge is Rule 1.0(f) - "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. Notes: Objective standard. Reasonable L under the circumstances would have formed a firm opinion that the conduct in question had more likely than not, occurred. Not Negligent standard.

Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). Notes: If applies Need to seek informed consent to disclose! Broader than Attorney-client privilege

1.6 Example: (A) C told me he went to bar had 8 beers. Attorney/client privilege (B) I go to the bartender and he tells me client drank 8 beers. Covered too, relates to representation of my C = Both apply to 1.6, GET CONSENT! E. Whos Responsible for Misconduct a. 5.1: P who supervises or has managerial authority - Must use reasonable efforts to ensure compliance of firm & subordinates - Responsible when orders it, ratifies it, or knows about it in time to fix it and doesnt take remedial action. b. 5.2: Subordinate Lawyer: bound even though acted at direction of another UNLESS reasonable resolution of an arguable question.

Only going to work when its a touch question c.

(a) (b)

5.3: Lawyers responsible for acts of nonlawyer assistants.

Rule 5.2 Responsibilities Of A Subordinate Lawyer A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

F.

Choice of Law Issues 8.5 Only need to know 8.5(a) rest NOT ON TEST

Rule 8.5 Disciplinary Authority; Choice Of Law (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

8.5(a) can be disciplined in OH & MI = (L licensed in both) = even if its private conduct

II. Deciding Whom to Represent (Chapter 3) A. General duty to take client? Rule 6.2 Comment 1 6.2 L SHALL NOT avoid appointments unless for good cause, like (a) Representation violates laws/PRC (ex. conflict of interest), or (b) Unreasonable financial burden on L, or (c) Cause/C so repugnant to L, likely impair C/L relationship Comment 1: L not obligated to accept a C.
Rule 6.2 Accepting Appointments A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. 6.2. Comment [1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant. The lawyer's freedom to select clients is, however, qualified. All lawyers have a responsibility to assist in providing pro bono publico service. See Rule 6.1. An individual lawyer fulfills this responsibility by

accepting a fair share of unpopular matters or indigent or unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.

Rule 1.2(b) and comment 5 Representing C doesnt mean L is endorsing Cs views.

Scope of Representation 1.2 (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. 1.2 Comment [5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.

B. Limiting representation possible? 1.2(c) L can limit scope if 1. Limitation is reasonable under circumstances, and 2. C gives informed consent
Rule 1.2 Scope Of Representation And Allocation Of Authority Between C And L (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

C. Pro Bono 6.1 1. 2. 6.1: Lawyer has responsibility to provide services for those unable to pay 6.1(a): Lawyer should aspire to do 50 hours; substantial majority to: -- Persons of limited means -- Organizations designed to address needs of those persons; and 3. 6.1(b): provide additional services with reduced or no fee (organizations, persons of limited means, improving law and legal system) D. Court Appointments 1. Bothwell: Court has inherent right to compel an unwilling L to represent a C to assure fair and just adjudicative process. Bothwell Page # 59 2. When will court compel? See Bothwell, quoting Lane:

Essentially figure out why someone doesnt have counsel is it marketability or indigency, or what? KEY TO GET FROM CASE: GET Court does have power to compel to appoint L to C, will look at seeking fair and just resolution. + WHEN: When its clear that its indigency not other factors that are keeping this person from representation. 3. 6.2: L SHALL NOT seek to avoid appointments except for good cause, e.g., a. Representation violates laws, (most common conflict of interest) Comment 2 = c. Cause/C so repugnant, likely to impair relationship b. Unreasonable financial burden on L

Bottom line = if court tells you to do it, you should, unless have REALLY good reason III. Control and Communication (Chapter 4) A. Control: 1. Agency law: Lawyers have a duty to act on Clients behalf and subject to Client control of objectives. Rest. Agency 1.01. KEY = Principal is in control. Agent must follow principal, or else agent can be sued for breach of fiduciary duty. Two ways a Lawyer may bind client: a. Actual authority - authority that was given to the agent. (Two methods) 1. 2. Express - where C says hey take care of my bankruptcy Implied Standard: would a reasonable agent in that circumstances think he had authority from manifestations of the principal. If hired L to take care of bankruptcy, then implied probably to file with bankruptcy court and to receive communication. Standard (both) = Reasonable agent would think he had authority.

b. Apparent authority - Principal puts agent in position, holds them out to having the authority, and 3rd party reasonably believes that the Agent has that authority. EX: Settlement situation. C tells L to go settle agreement meeting, but wont settle for less than 8k. L doesnt have actual authority to settle for 8k. Just apparent authority. A reasonable 3rd party (other negotiator) would think L has authority to make settlement. Two Part Test: (1) Did Principal put agent in position as holding agent out as having authority? (2) Would a reasonable 3rd Party believe Agent has authority? *** Going to favor 3rd party, because principal has remedies against agent. 2. 1.2(a): Scope of Representation & Allocation of Authority a. Must abide by decisions concerning objectives, consult about the means by how to achieve those objectives, may take action that is impliedly authorized. Page #82: Means = whether to litigate, arbitrate, mediate, whether to stipulate to a set of facts, or whether to consult with another L b. Shall abide by client decision regarding: 1.2(a) Tells what the objectives are. - Settlement - Pleas - Jury trial - Whether to testify 3. 4. 1.2(c): L may limit the scope of representation if (1) reasonable, and (2) C consents. 1.2(d): L may not counsel or assist a C in conduct L knows criminal or fraudulent. KNOWS = Actual knowledge but can be inferred from the circumstances.

B. Communication 1. 2. Agency Law/ Malpractice Liability : Machado, dePape 1.4: Communication 1.4(a) Lawyer shall

1.

Promptly inform the C when informed consent is required by Rules. Use 1.0(e) 1.0(e) material risk & reasonably available alternatives **If know have to disclose, do it sooner than later. Promptly.

2. 3. 4. 5.

Reasonably consult about means Keep client informed about status of the case Promptly comply with reasonable requests for information Consult C regarding limitations on Ls conduct by Rules (cant do anything to violate the rules)

1.4(b)

L shall explain to extent reasonably necessary to permit the client to

make informed decisions. GREAT EXAMPLES in Comment 5 of 1.4(b) Rule! 3. 1.0(e): informed consent = agreement after lawyer has communicated adequate information and explanation of: Material risks, and Reasonably available alternative
****KNOW THIS

Informed consent is an ongoing process. Have to keep informing them

Rule 1.0 informed consent (e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Add Comment 5 from 2.1 to 1.4 Stuff!

2.1 Comment [5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.

IV. Competence (Chapter 5)

A. Formation of lawyer/client relationship When is it a L/C relationship? 1. Togstad 1st Always: Who is the C? (look from prospective of the C) We have an A/C relationship when the C reasonably thinks so. 2. Always going to side with C. Did L say enough that a reasonable person in the position of the C would think there was a duty? Note can limit representation. 1.2(c) 1.2(c) L can limit representation when limit is (1) reasonable under circumstances, and (2) C gives informed Consent. Engagement Letters used to limit scope - intended to prevent misunderstanding by clarifying the scope and basis for undertaking C representation. B. 1.4 Competence 1. Discipline a. Regarding competence 1.1 - Competence 1.3 Diligence 1.4 - Communication b. Regarding settlement of such claim 1.8(h)
Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

***COME BACK

Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4 Communications (a) A lawyer shall: (1) Promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) Reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) Keep the client reasonably informed about the status of the matter; (4) Promptly comply with reasonable requests for information; and (5) Consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

2.

Malpractice: (Basically negligence) NEED: 1. Duty 2. Breach 3. Causation 4. Damages ALSO Look at Page #111 a. Duty to C. Generally, L duty to 3P General rule: Only privity. 1. 2. Client Third Party (3P) IF - RLGL 51(3) see p 197 supplement (3) L owes duty of care to Non-client when: (MALPRACTICE) 1. 2. 3. L knows Cs primary intent is to benefit 3P, No impairment of A/C rel; and No other way to enforce those rights.

Purpose of K was to benefit the 3P, make sure doesnt impair L/C relationship & requirement that there probably is no other way that Cs wishes could be effectuated that way. - RLGL 51(4) b. Breach: 1. 2. Standard: statewide Violation of ethics rules as evidence? When suing for Malpractice, can you use a violation of the rule as evidence? Some say it is evidence & can be used as some evidence of a breach, and other say not. 3. Experts necessary? Generally yes, but have some expectations. Like when something is an obvious breach then probably dont need an expert for that. Breaches of Fiduciary duty, loyalty probably not. Ethics experts can testify to issues of law in ethics.

Problem 5-3(b) wont 4. The standard: (1) Reasonable knowledge, (2) skill, and (3) preparation. How to measure Reasonableness? Held to bar of the State all L held to same statewide standard. If hold self out as an expert then measured against experts. Objective standard: ordinarily prudent attorney What does an OPA do (1) (2) (3) (4) Careful investigation of the Facts Formulation of legal strategy (legal research) Filing the appropriate papers Maintenance of communications

Compare OPA with error in judgment if bad judgment call, okay. Look to see if case was well prepared c. Causation TEST: But for test. (Case within a case) But for that negligence, would have had a different case But for causation & proximate clause d. Damage Show C damaged because of it Have to show value of the loss No damages - for punitive damages or emotional distress e. Vicarious or partnership liability If servant acting within employment, boss responsible. Same for partners. Partners all jointly liable the other partners. Associate screws up use respondent superior Partner screws up use partnership liability f. Defenses a. SOL starts running when relationship ends b. Comparative fault use partnership liability C. Breach of Fiduciary Duty 1. 2. 3. Almost exclusively a C cause of action A few jurisdictions have allowed action by beneficiaries against L for fiduciary. Like RLGL 51(4) above. If L assists may be responsible. Possible claim of aiding and abetting breach of fiduciary duty.

D. Misrepresentation 1. Rest Torts 552, in Greycas: One who in course of profession supplies information for guidance of others is liable for negligent misrepresentations that induce detrimental reliance So this someone who is supplying info to another. If so there is detrimental reliance going to say there is liability for NMR 2. Cause of action for Negligent Misrepresentation: Need the following for NMR: a. Negligent (fraud if intent to deceive) Have it when have a False statement of fact (not opinion/puffing, nor pure statements of law), except: -- truth --Changed circumstances --Duty to speak generally no duty to speak, unless C is suing (1.4) c. Regarding material fact, which Objective responsible person would find it important d. Induces detrimental reliance Subjective Opinion - it mattered to me e. Comparative Negligence a defense? NMR & N are separate, but overlap in middle Need to find a false statement to use NMR Some point, going to be able to sue for both b. Misrepresentation:

Negligent MR

Malpracti ce

E.

2.3 Evaluations for use of 3P a. OK to provide opinion if L believes making the evaluation is compatible with Ls relationship with C; b. If L knows, or should, that evaluation is likely to affect C interests, L shouldnt provide evaluation unless C gives informed consent (1.4) c. 1.6 applies except as authorized in connection with evaluation.

Rule 2.3 Evaluation For Use By Third Persons (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

READ COMMENT 5 pg 59 F. Ineffective Assistance of Counsel 6th Amendment, Strickland Test: must show both: (1) Representation was not reasonably effective (2) That counsels deficient performance prejudiced the . PRONG 1: Representation was Not reasonably effective a. Evaluated under prevailing norms have to point to a particular act and show it was wrong. Objective test for reasonableness expert. b. Presumption it is effective; strategic choices not reevaluated. However, must be based upon reasonable investigations (Wiggins) High presumption that counsel was reasonable. PRONG 2. Prejudice: But for lapse, different result would have occurred But for the lapse in Ls skill, would there have been a different result? (If told to do it, and didntthen obviously dont need to elaborate this question) a. Presumed if - There is an Actual conflict (Cuyler) or - If Judge ignores request about conflict (Holloway); or - Denied representation all together at critical time (appeal) (e.g. client asked for appeal Roe) (Asked L to assist, and he declined prejudice) If none of these then can show (b): b. Otherwise must show result would have been different. Must Show: But for ineffective assistance you would have been acquitted, or in death penalty, that jury wouldnt have come back with death.

V. Confidentiality (Chapter 6)
Client Confidentiality Evidentiary protections Sources of law Definition Statute; CL of Evidence A/C Privilege: Communications between privileged person in confidence for the purpose of obtaining/providing legal assistance. RLGL68-77. WP immunity: Material prepared by a L for a C in anticipation of litigation RLGL 87-89, FRCP 26(b)(3) Client Consent Waiver: RLGL 78-81; 91-92 Exceptions Physical Harm Financial Harm/ C Crime or Fraud Future and continuing crim or fraud RLGL 82 Future and continuing crime or fraud RLGL 82, 93 Seeking Advice L Self-Defense and Compensation Required by Law or Court Order None L self-protection: RLGL 83 Invoking the privilege: RLGL 86 Future serious bodily harm (crime): 1.6(b)(1), RLGL 66 Future crime, prevent, rectify, mitigate substantial financial loss: 1.6(b)(2)(3); RLGL 67 1.6(b)(4) L self-defense: 1.6(b)(5); RLGL 64, 65 Required by law or court order: 1.6(b)(6), RLGL 63 Client consent, express or implied: 1.6(a), 1.13(c), 1.14(c), RLGL 61-61 Ethical/Fiduciary Duty Agency law; MR 1.6, 1.8(b), 1.9, 1.18; CPR Canon 4 1.6(a): Information relating to the representation of a C; DR 4-101(a): Confidences and Secrets; RLGL 59: Confidential Client Information

A. When is a client a client? 1. 2. Perez. (1) Can be implied by conduct, or (2) When C reasonability thinks so. Prospective Client: 1.18 (3) AND ALSO when they reasonably think you are going to protect their information they disclosed to you. Page #56 = 1.18(A) = (defines it)

(B) = L may not use or disclose confidential information from a prospective C.

B. Ethical restrictions regarding information. Dont talk. Dont use to Ls advantage. Dont use to Cs disadvantage. (past/potential C) 1. Disclosure: Lawyer shall NOT reveal information relating to the representation of a Client. (Includes past and prospective C) No exception for publically known info 1.6(a) Exceptions: Unless (1) Informed consent, (2) Disclosure impliedly authorized, or (3) Disclosure permitted under (b). 2. See also 1.9(c)(2) same rule for past clients. See Anonymous, Perez Also true for prospective Clients 1.18(b) (Anonymous case)

NOTE: 1.6 & 1.16 = Both Broader than A/C Privilege Use to disadvantage of current client 1.8b: disadvantage of a client, Except: 3. When obtain informed consent, or Permitted by the rules Pointing to 1.9 regarding past Cs. Applies to prospective client. 1.18(b) Lawyer shall NOT use information relating to the representation of a client to the

Use to disadvantage former client: 1.9(c)(1): Lawyer who formerly represented client in a matter, shall not use information relating to rep. to disadvantage, Except as: These rules would permit or require with respect to the C, or Meaning: informed consent! Generally known Applies to prospective client. 1.18(b)

4.

Can use to Lawyers advantage? No prohibition in rules. But see RLGL 60(a)(1) p 206 and comment j; 60(2) No prohibition of using confidential info of C to L advantage in rules, but L will have to render all profits to the C, and if does hurt C - L subject to discipline.

C. Attorney/client privilegesee Hughes at page 174; RLGL sec. 68 Page # 74!! Neither C/L can testify to issues that are privileged

Protects C autonomy 1. 2. 3. 4. 5. Legal advice sought From legal adviser in capacity as such Communications relating to that purpose Made in confidence From client a. c. 6. 7. 8. Agents, RLGL sec 70 Corporations and privilege Upjohn b. Joint Clients, RLGL sec 75 Permanently protected From disclosure by himself or his advisor Unless waived

RLGL: Read all: 68 & comments 69 70 71 1. 2. Legal advice sought From legal adviser in capacity as such L contacted because he: was a L (Dean), knew the cops (Hughes) In-house counsel & businessperson = identify what is business and what is lawyering. Keep two separate. Presumption: (Chen) L hired for advice = there is a rebuttable presumption that L is hired as such to give legal advice. Presumption is rebutted when facts show that the L was employed without reference to his knowledge and discretion in the law. 3. Communications relating to that purpose Verbal, written = conveying information to C/L. That purpose = meaning seeking legal advice If made for another reason and then handed over = not privileged THINK: Why was doc/tape originally made? If it was to communicate with counsel = privileged. But facts of doc/tape are not. READ: RLGL 69 comments D, E, J examples (she said too!) Names, who paid L, general nature of legal rep = Not privileged Comment G: Page #216 = Read **&START HERE AGAIN &&& 4. Made in confidence

Look at: Was there a reasonable expectation of privacy? And where there reasonable precautions made to protect that privacy? 5. From client (or L C) Case law says either way (C L, or L C) Waiver: Generally, if 3P in room privileged is waived, exceptions for agents, joint clients and corporations a. Agents, RLGL 70 Privileged people includes: agents of C or L who facilitate communications between them, and agents of the L who facilitate the representation. COMMENT F: LOOK UP! Comment E: Whether 3P is an agent or a stranger is critical!!!! b. Joint Clients, RLGL 75 IF its otherwise privilege & have a common purpose (setting up business, H&W getting wills done) then its privilege against 3P, but NOT among the Co-clients! c. Corporations and privilege Upjohn Old Test: Control group test NEW: Communications protected IF: i. By EEs (to the EE) ii. To counsel acting as such iii. At direction of corporate superiors (can be explicit and implicit (general counsel probably doesnt have to get permission to ask questions)) iv. In order to get legal advice v. Within the scope of the EEs duties and vi. EEs must be aware that question asked so corp could obtain legal advice. 6. 7. 8. Permanently protected after death From disclosure by himself to his advisor Unless waived Who? Individual context privilege owed by C, so C decide if waive Corporation Current officers of corp decide when to waive HOW TO WAIVE: 1. Client Consent it/C says go ahead 2. Client testimony on the topic 3. What if Agent/L tries to waive no, C gets to decide.

Traditional rule: if agent handed anything over to a 3P, it was waived, no matter what Other Traditional rule It was never waived if agent did it. EXAM: Modern rule: (Citgo) : Modern rule appears to bethat sometimes this is a waiver. Factors: Alldread Case-by-case basis 1. Reasonableness of precautions taken to prevent disclosure 2. Amount of time taken to remedy the error 3. Scope of the discovery 4. Extent of the disclosure, and 5. The overriding issue of fairness Next: Scope of waiver: waiver to just doc or subject matter? D. Exceptions to ACP 1. 2. 3. Name, & who paid L $$ - Not privileged, unless that name would be the last link that outsiders would need Testamentary exception death doesnt end privilege. But in a will contest, the privilege can be broke to make sure effectuate Cs intent Crime/fraud: Notion: if privilege is designed to protect C to get advice and trusted communication, if discussion bout crime/fraud that doesnt really meet the policy reason. 1. Purcell: Fact that 1.6 allows you to report, doesnt mean that the privilege is waived!!! EXAM: 1st ask if meets all requirements of privilege and if it meets the exceptionTHEN ask if meets 1.6 requirements Going to ask 2 questions: 1. Does the crime/fraud exception apply? If so L has to disclose Only applies when C says I am going to do X, and want you to help me. Privilege applies to past crimes. MUST be more than a discussion of a future crime Crime/Fraud Exception: If the services of the L were sought or obtained to enable or aid anyone to commit or plan to commit what the C knew or reasonably should have known to be a acrime or faud. RQ: Servies of L.were sought/obtaintedto assist in crime/fraud. WAS enough under 1.6(b)(1) but not enough under A/C privilege!

A/C the crime-fraud exception should apply only if the communication seeks assistance in or FURTHERANCE of the future criminal conduct. Pg 203 NOTE L doesnt have to know that C is using him to commit a crime/fraud. ONLY Going to look it from Cs point of view. (why did the C go in. to see L) But Ls innocence doesnt preseve A/C privilege against crime-fraud exception. Privileges is the Cs so its the Cs knowledge and intentions that are paramount concern to the application of C/F exception. Page #236 2. RLGL sec 82 (A) is about when C goes into things and with intent to include L & commit crime/fraud (B) even if C didnt go in with that idea dot commit a crime/fraud./..if he forms the idea later and uses the advice! BROADER! **Since L disclosed it under 1.6, why isnt this a waiver? Page #203 Dont think the fact that L told a 3P is a waiver, because public policy is so important to have Ls feel comfortable to protect lives and property of othersPublic Policy reasons! L more likely to do if dont think theyll have to testify to do it. If going to assert the exception have to prove it by preponderance of the evidence E. Exceptions to 1.6: Shall not disclose information relating to representation UNLESS: *broader than A/C 1. Expressed or implied authority. 1.6a: **if cant find an exception in A or B, then shut-up*** a. Express: informed consent. 1.0e Informed Consent 1.4 b. Implied authorization 1.6 c5, 1.14c, Pressly. 1.6(A) IN ORDER TO CARRY OUT THE REPRESETAITION. o Comment 5 = IF C tells L not to do something (dont tell ex about suspicions)then no impliedly authorized! But if C didnt tell him not to. Then L impliedly authorized to make disclosures about C when appropriate in carrying out representation.

BE VERY CARFUL if you wonder if this is something C may want to say before you blame it DONT ASSUME YOU ARE IMPLIED AUTH

2. Physical Harm:

Safely way to read this typical stuff that keeps case going, without effecting any substantive issues.

1.6(b) A L may reveal information relating to the representation of a C to the extent the L reasonably believes necessary: a. 1.6b1, Purcell, RLGL 66(1),(2) 1. 2. 3. MAY Reasonably believe that it is necessary To prevent reasonably certain death or serious bodily harm Death = means death Serious bodily harm = Life threatening/injuries, or substantial consequences. (ex: extended imprisonment is) b. Civil liability for failure to warn? Hawkins, RLGL 66(3) c. 3. Other consequences for failure to disclose: Spaulding, FRCP 60 ***LOOK THESE UP Seeking advice: 1.6b4 -- MAY Seeking advice REGARDING Misrepresentation 1.6b4 = MAY Consultto secure legal advice about Ls compliance with the rules. 4. Self- defense: l.6b5--MAY: three Q's: a. Both C or TP can use this regardless who is challenging the conduct. (Both) BOTH Can use this exception when one of the following situations!! May establish a claim or defense on behalf of L in controversy between L and C May establish defense to criminal charge, civil claim against L based on conduct in which C involved 7-9b problem = May respond to allegations in any proceeding concerning representation. (Discipline & ineffective assistance of counsel) b. When? if complaint filed, if its imminent or if there is a clear manifestation of intent to indict with ability to do it, you are going to be able to disclose. c. How much can you say? Suitable evidence supporting my claim

5. Financial harm: substantial financial injury to 3P (past and future crime or fraud). 1.6b3 & 2 a. Dont KNOWINGLY assist, Crime/fraud) MUST withdraw if L Knows, 1.16a. 1.2d (L knows C asking him to assist him in a

Dont have to withdraw until you know C asking u to assist in crime/fraud

MAY withdraw if Reasonable belief 1.16b2. b. Dont KNOWINGLY make false statement of material fact. 4.1a. see comment 2 c. Past crime or fraud not involving Ls services? MUST NOT DISCLOSE = classic A/C privilege. Unless consent *but whole different if Im knowing involved (violated 1.2) also look at 1.6b2, and 1.6b3 d. Past crime or fraud involving Ls services. 1.6b3, 4.1b. 1.16a1; see also chart on pp. 112-119 statutory supp. 1. 4.1b: L SHALL NOT knowingly fail to disclose material fact when disclosure necessary to avoid assisting in criminal, fraudulent act 1.0d, unless 1.6 prohibits. 2. 1.6b3: L MAY disclose: PAST FRAUD a. c. e. To prevent, mitigate, or rectify Reasonably certain to result or has resulted C has used the lawyer's services. b. Substantial injury to financial interest or property d. From client crime or fraud; AND So, if 1.6b3 met, 1.6 doesnt prohibit.

Next Q: disclosure necessary to avoid assisting? If yes must If No may

That is: a. If past crime/fraud continues MUST disclose, if withdrawal does not prevent 1.16b3 b. OH: 4.1(b) refers to illegal or fraudulent act and 1.6c: SHALL if believes necessary to comply with 3.3, 4.1. e. Preventing future crime/ fraud: 1.6b2: assistance. 4.1, 1.6b3; if merely past, MAY disclose,

1.

MAY reveal a. To prevent C from committing crime or fraud financial or property interest of another; AND c. C used or is using Ls services b. Reasonably certain to result in substantial injury to

2. 6. other law):

See also 1.2d, 4.1b

Reporting corporate misbehavior: 1.13 (avoiding violation of 1.2d and (1.4/1.13) a. Who is C? 1.13a; comment 1-2; 1.13f; c 10; 1.4 The Corporation! b. IF Lawyer Knows (last sentence comment 3) that the officer intends to act 1. Violation of his/her legal obligations to the organization, OR (breach of fiduciary duty to the organization = self dealing/use of corp info/) Violation of law imputed to the organization; (If lie in IPO, person lie is imputed to corp for securities fraud) AND 2. Likely to result in substantial injury to organization, (compare 1st sent comment 3) 1.13 c. THEN 1.13b 1. 2. Act in the best interest of organization. UNLESS NOT in the best interest, SHALL refer to higher authority, including, if warranted, highest authority that can act on behalf of organization 1.13b,c4,5 3. 4. Look at corporation statute to see who has highest authority End of the road is not the Shareholders, its the highest people who can act for the organization d. EXCEPT (1.13c) as provided in 1.13d: 1.13(c) only applies to VIOLATIONS OF LAW 1. 2. 3. Not addressed in a timely, appropriate manner, AND Clearly a violation of law, AND L reasonably believes violation is reasonably certain to result in substantial injury to organization (so note this doesnt apply to violation of legal obligation to organization unless also a violation of law), (just officers duties to corp?) THEN ITS THE Ls BUSINESS!!!! Cont thru or refuses to act in a manner that is

= THEN, L MAY reveal whether or not 1.6 permits, if necessary to prevent substantial injury to the corporation. 1.13c. e. Notes regarding 1.13: 1. 2. 3. If its not a violation of law (meaning we are talking about violation of corp), MAY report if 1.6 exception applies. 1.13d says: 1.13c does not apply to investigations of alleged violations or defense of claims. (Upjohn) (COMMENT 7) If lawyer reasonably believes fired because of 1.13(b) or (c), L must proceed to inform highest authority of firing, 1.13e, comment 8 (someone fires you for doing the right thing, you better tell authority about it) 4. 1.13 applies to government agencies, comment 9. Wants us to understand that someone working for government agency can also use 1.13 but going to depend on who the C actually is. f. Comments on Corp: 1.13(f) - 1.13(g) might be rep entity and officer. Subject to 1.7 = conflict of interest g. POINT: not going to do good job rep corp unless (1) you know the business, and (2) complex body of regulation. 7. Corporate misbehavior in publicly traded companies: Sarbanes Oxley Act and Regulations, p. 290 statutory supp. Sarbanes Oxley Not on exam! a. IF L practices before SEC; AND Becomes aware of evidence of material violation ( of fed, state securities law or breach of fiduciary duty under fed, state law), (very broad) by an issuer (company issuing of securities) or officer, director, employee or agent of issuer, THEN: SHALL report to (1) Chief Legal Officer (CLO), or (2) BOTH CLO and CEO. b. After L reports, CEO or CLO MUST investigate. c. UNLESS L reasonably believes Appropriate investigation Within a reasonable time,

Assuming CEO/CLO isnt investigating, or doing it slowlythen L SHALL report violation to:

Audit committee of board; or Committee of outside directors; or Entire board; or Qualified legal compliance committee (QLCC) of the board. If reported to the QLCC then no further responsibilities, but if reported to some other entity, then

d. UNLESS L reported to QLCC, L has obligation to assess whether appropriate response. IF L doesnt reasonably believe THEN SHALL explain reasons to CLO, CEO or directors; AND MAY disclose to extent necessary to Rectify consequences of Material violation That may cause substantial injury to financial interest or property of issuer or investors IF Ls services used in furtherance. Complies by reporting to supervising L. May take steps permitted or required if reasonably believes supervisor failed to comply with requirements. May say to self, 5.2 says cant but here you may if think hes not doing his jobs. f. Supervising L: (1) Must assure subordinates comply; and (2) Must report when Sub. L reports. g. Violation can result in discipline by SEC; no civil or discipline for inconsistent state rule. h. L fired for complying MAY report firing to board of directors. i. Unclear whether L has noisy withdrawal obligations (disaffirm docs drafted). Exceptions to 1.6 8. Law or court order: Physical Evidence 1.6(b)(6) = Lawyer MAY reveal info relating to the rep of a C to the extent the L reasonably believes necessary: (6) to comply with other law or court order. a. Compare privileged information (review) e. Subordinate L Appropriate response Within reasonable time,

1. 2.

Statement ..Is where the kids bodies are.. Privileged if to get legal advice Writing Draws map where bodies are. Privileged if purpose to for getting legal services. COMPARE: C made map prior to burying kids, heres the map NOT privileged. For crime, not legal services.

3.

Observation L goes and observes ground dug up & something there, L may even look, but doesnt move bodies. Privileged, because if required to disclose violates rights of C.

4.

119 RLGL, & Comment 8

b. Not privileged: evidence, fruits, and instrumentalities of crime. Key to Money not privileged, thats physical evidence Just observe privileged. But once have control of objects that more than observation. 1. Other law (like 119) requires L to hand over; 1.6b6 allows disclosure to comply with law. See also Rest. 119(b): notify or turn over. P251 2. Before handing over: 119(a); comment b (can keep for a little while, can test if doesnt destroy or alter) but then have to hand it over!!! 119(2) 3. Procedure for admitting evidence 119 comment c ALL NEED TO KNOW There must be an act involved before L gets in trouble for hindering prosecution (accessory after the fact) Just knowing - is not enough. All 1.6b6 allows you to do what the law requires you to do. If court orders you to hand over doc, you have to. Court rule. 1.6 allows you to comply with it. 119 says you have to turn over evidence in criminal case, and 1.6 wont be disciplined if do what the law says. When turn over? 119 Says may when reasonably necessary take possession and retain it when

Can I test? only if test wont alter or destroy the evidence

L with key to safe, now has control over it = so have to turn it over. Because if you dont, keep it and hold it = you are helping with a crime, violate 1.2(d) BASICALLY = if L controls it must turn over If doesnt control it then no obligation. BUT DONT ASSIST!!!

Bottom line: long as just observing and not interfering with evidence cant be ask anything about it But once change it or control of it then in 119 area! As long as privileged these things dont come up privilege is when seeking legal advice 9. Law or court order: practice before a tribunal (general) (1.6a or 1.6b6: if required by law or rules) a. Government agency a tribunal? 314 As long as not participating dont have to disclose b. Reporting settlement authority to judge: ABA Formal Op. 93-370 Judge may inquiry, but if L reluctant = judge cant push itbut cant force you to disclose c. Lies about ID: Casey, 1.2d, 3.3a1 8.4b. Judge asks M to reveal Cs bottom line = 3.3 and 3.4 doesnt just mean in trial, means depos, PT etc. Cant lie, its material factis there duty to disclose? No. d. Client death: Forrest, 3.3a, 3.4a, 8.4c. Must disclose if witness dies cant settle case before other side finds out e. Disclosures of fact: 3.3a1, 3.4a; prosecutors 3.8d There are certain things you have to hand over under rule 26 but other than those you dont have affirmative responsibility to disclose facts unless they are in discovery. Life of client is exception to that f. Error of court? 3.3a ABA Formal Op. 287 No affirmative duty of the L to disclose (or correct the judge) unless judge asks you or any statement in your papers that say something else.
Rule 3.3 Candor Toward The Tribunal (a) A lawyer shall not knowingly: (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

3.9, c 3 (tribunal: 3.3. 3P: 4.1b) ABA F. Op

g. Citations to authority: 3.3a2, Hendrix; L shall not knowingly fail to disclose: 1. 2. 3. Legal authority in Controlling jurisdiction; and Directly adverse to the position

See also FRCP11; FRAP 38, 46c

10. Law or Ct order: Perjury (a/k/a fraud against the tribunal) a. Before perjury: 3.3a3: L shall not knowingly offer evidence the lawyer knows to be false. (Have to try to talk C out of it, have to try and withdraw) If Knows: (1.0(f)): 1.0(f) = Knowledge is actual knowledge, but it can be inferred from the circumstances. 3.3 Comment 8 1. 3.3 (you know your C wants to liethis is what your supposed to do) COMMENT 6 LOOK UP a. Try to dissuade (talk C out of committing perjury) - if you reasonably believe that C will not now lieyou can stop. b. Dont call or do not examine about perjury. c. If criminal case and C demands to testify:
1st.

Attempt to withdraw. (Withdraw as to a conflict Brown: have to say enough so court knows there is a reason why this is being continuedbut dont have to have hearing as to what lie was going to be)

2nd. If

judge says no to withdrawal, dont examine

about information likely to encourage perjury. In Civil - dont call witness, even if its your C. Many states same rule for Criminal. Others allow C to testify in narrative, L cant ask him questions) 1.2=
3rd.

Tell ahead of time?

2.

Other state rules (e.g. Brown): each state court is ultimate rule decider. COMMENT 7 in 3.3 = a. c. e. Try to dissuade. Raise with court, making record. Dont use statement in closing. C no right to testify falsely b. Attempt to withdraw. d. Use narrative form for questions.

b. Post perjury 1. 3.3a3: a. IF 1. Material, AND

2. L comes to know of falsity b. THEN: L shall take reasonable remedial measures including, if necessary, disclosures to the tribunal C10
Comment 10: If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

2. 3.

Other states: attempt to withdraw, dont use in closing. 3.3(c) - Duty continues to end of proceeding, even if otherwise posted by 1.6. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

4.

Nix v. Whiteside: Not Ineffective Assistance of Counsel to dissuade C from testifying falsely. a. Reasonably effective as within ethics rules of different outcome. b. No prejudice: only deprived of testifying falsely; no proof

5.

Not decided in Nix: a. c. What if finder of fact (judge or jury) told? State can adopt different rule or have differing constitutional standards. b. What if client kept off stand completely?

11. Law or court order: disclosing violation of court order: Formal Op. 88-412
Comment 1: This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of "tribunal." It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunals adjudicative authority, such as a deposition.

Mere fact you are there doesnt mean you have to report it, absent some court order. But sometimes continuing rep & saying nothing is a rep.

VI. Conflicts of Interest (Chapter 8, 9) How to approach a conflicts question: Page #284-285 book, or here: A. Introduction 1. Qs to Ask:

1. 2. 3. 4.

ID: Who is (are) Client(s) - figure out who C is Determine whether conflict exists (review categories) - March through variationsonce decide there is a conflictthen must decide Decide whether it's a consentable conflict - Certain conflict that can be consented tosome not If so, ask whether consultation, informed consent occurred - If it is consentable conflict---see if there was a good consultation, and if informed consent occurred

General Rule: 1.7then lots of application in 1.7 in 1.8 and 1.9 2.

Conflicts, general rule: 1.7:

Rule 1.7 Conflict Of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client (meaning mandatory withdraw) if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a L may represent a client if: (1) the lawyer reasonably (objective disinterested lawyer point of view) believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

a.

L SHALL NOT rep C if conflict = 1. 2. Directly adverse OR

1.7a

Materially limited by responsibilities to client, former client, third party, or personal interest.

v. + VC v = directly adverse + VC = materially limited b. L MAY rep C if 1.7b = (1-4 have to all be true in order for L to rep despite conflict) (a) if direct adverse or ability to rep is materially limited = then you cant do it unless all things are met in 1-4.!!! If not all true = then L is in trouble!

1.

Lawyer reasonably believes will perform competent, diligent representation FOR ALL . ask C. If cant perform not even allowed to

2. 3. 4.

Not prohibited by law, see c16 = Have to check state laws! (cant even ask C for consent when there is a state law) Not opposite sides in the same litigation AND Each affected C needs to give informed consent IN WRITING!!! Needs to explain the situation, and possible issues then get written consent from each affected C.

5.

(a) if direct adverse or ability to rep is materially limited = then you cant do it unless all things are met in 1-4.!!! If not all true = then L is in trouble!

2. Who is the C: 1.

From C's point of view, Perez, DePape

Corp = C is the corp/entity itself 1.13(a), not the CEO/officers, but 1.13(f). 1.13(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. Meaning L can represent CEO in a divorce.

2.

Comment 34 to 1.7

C34: Organizational Clients: Affiliates in Business a L for a company is not necessarily a lawyer for all affiliates. Therefore, L is not barred from representing adverse affiliates in unrelated matters.

If L rep corp, then L rep all its divisions - Couldnt rep someone suing a division. But subsidiary = Possibility. Depends whether rep to 1 entity is going to affect the other: look at how connected they are, how financially interdependent they are, 3. 4. 5. ABA F. Op. 95- 390 RLGL 121 comment d LOOK AT THIS Westinghouse v Kerr McGee classic L/C relationship. 1.18 says same thing! 3. Remedies 1. 2. 3. Injunction, other equitable relief Maritrans Malpractice suit or a breach of fiduciary duty. Maritrans, DePape, Perez Forfeiture of fees, Arce, RLGL 37: Huge conflict case. A requirement of loyalty/confidentiality may exists, even though not a

Arce = Issue: Whether Attorney who breaches a fiduciary duty to client can be required to forfeit all or part of the fee, regardless of whether breach actually caused damage to C. Holding: yes. And amount to be forfeited is a question for the court not the jury (unless its a question of fact.) Dont have to show damages, if disloyal to your relationship = then dont get fees. Standard: Whether a reasonable L would know when looking at this that this is disloyal. a. Lawyer engaging in clear, serious violation of duty may forfeit some or all fees b. Relevant factors for extent of fees forfeited: - gravity and timing (money earned prior to breach you get to keep) - willfulness effect on work - threatened or actual harm (threaten harm is enough) - adequacy of other remedies not enough) - Arce adds public interest (thinking about public interests)
RLGL 37 - A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation for the matter. Considerations relevant to the question of forfeiture include the gravity and timing of the violation, its willfulness, its effect on the value of the lawyer's work for the client, any other threatened or actual harm to the client, and the adequacy of other remedies.

(only use injunction when other methods

4.

Discipline if you violate rule 1.7, or 1.8 maybe 1.9.can be disciplined. 8.4 says that if violate, can be disciplined. 1.16 if know you have a conflict, you must withdraw

5.

Disqualification Prevents L or former L (and that Ls current law firm) from representing another C. Ensures that the case will be presented without conflicting loyalties or improper use of confidential information. Motions to disqualify can be made by Ls client, former client, or any other party to the litigation.& judges can raise issue sua sponte. Imposes costs on other parties to a proceeding If granted Requires L to move to withdraw under 1.16(a) IF decide that 1.7, 1.8, or 1.9 has been violated then disqualification would be appropriate discipline. Page #290 292!! Go here for more on disqualification

D. Personal interest of L: 1.7, 1.8 = L & C have different interests. REMEMBER have to have 1.7 in back of head cant even ask unless L reasonable believes that can represent the C fairly and accurately.

1.

L SHALL NOT enter into a business transaction or ownership, possessory, security,

or other pecuniary interest adverse to Client: l.8a UNLESS: a. (a)(1) Transaction and terms are fair and reasonable to the client; to be reasonably understood by the C. c. (a)(2) Client advised in writing and given reasonable opportunity to seek independent legal advice d. (a)(3) informed consent, in a writing signed by the client to the terms of transaction and Ls role. 1.8 C1 = it does not apply to standard commercial transactions between L & C where transaction involve products/services that C generally markets to others (no advantage to L, i.e. buying paper) Service on board of directors ABA F. Op. 98 410 Page #303 problems when L represents the Co & also on board: 1. Interest as director may interfere with professional advice 2. Interest in LF of getting business may interfere with directors advice 3. GET! b. (a)(1) Fully disclosed and transmitted in writing and the terms have

2.

3.

Will or gift

l.8(c) - a L shall not solicit any substantial gift from a C, or prepare

will giving L or person related to L substantial gift. L shall not solicit any substantial gift from a C; see c 6 C6: A holiday present or token of appreciation is okay. L shall not prepare an instrument giving L or person related to the L any substantial gift UNLESS L or other recipient related to C. see c 7, C7: Can draft will for parents if doesnt give you any more than would have gotten if there wasnt a will (per stripes) **Non-consentable conflict. LF disqualified too L as executor of Cs estate? see comment 8 C8: Appointment of L as executor of Cs estate subject to same COI provision in 1.7 & requires informed consent from C. 4. 5.

Literary, media rights 1.8(d) - 1.8(d) Media Rights a lawyer cant contract for
media rights associated w/ representation. **non-consentable

Interest in litigation 1.8(e), 1.8(i) CA 4 - 210

1.8(e) - L shall not provide financial assistance to a C in connection with pending litigation EXCEPT: 1) An advance of court costs & expenses of litigation (repayment can be contingent on outcome) 2) if C is indigent, lawyer may pay court costs and litigation expenses. C10: Medical exams and evidence expenses are also allowed.

1.8(i) - L cant acquire a proprietary interest in the cause of action (1) except as part of a reasonable contingency fee in a civil case, or (2) lien authorized by law to secure Ls fees/expenses 6.

Agreements regarding malpractice l.8h

1. Prospectively limiting Ls liability to C for malpractice only if independent represented in making the agreement. 2. Settle malpractice claim with unrep C or former C allowed only if C advised in writing to seek independent counsel and given reasonable opportunity to do so. Entering business transaction with C = Must follow 1.8(a)

7. 8.

Familial relationship with opposing lawyer formerly 1.8(i), now use 1.7 Sexual relations with client: l.8j CA 3 120
L shall not have sexual relations with a C unless it existed when the L/C relationship commenced. Still may have 1.7 issue. This does not impute firm members.

9. a.

L as Witness. Later (see 3.7)

1.7(a) prohibits representation of a party if there is a significant risk that the representation will be materially limited by L's responsibilities to...a third person ...UNLESS Reasonable belief can provide competent, diligent representation; and Informed consent in writing

E. Third Party Influence:

b. 1.8f: L SHALL NOT accept compensation from one other than the client UNLESS 1. C gives informed Consent 2. c. No interference with professional judgment of L and 3. L doesnt violate 1.6.

Examples of problem of 3P:

1. 2. 3. 4. 5. 6. Family member Employer paying for representation of employees Co where one pays Nonprofit organizations paying for legal representations of clients 1.13: C is corp, but influence by officer/ director possible. see 1.13g Class actions? RLGL 14 comment F BOTTOM LINE: 1st recognize that rule 23, that L cant be L for class unless clearly rep interest of class. Making sure you dont favor any member of the class (including named rep) Rule 26(g) = treat class action as if it was corp. See class as entity and named class rep as the officersend of the dayhave to make

sense for the whole class. And if you feel like two separate classes within a class probably answer to have subclasses with separate counsel. d. Special problems with insurance defense (L paid by insurance Co) a. Who is the C? The Insured!! Issue 2 is the insurer also a C? Some say Yes and no issue unless conflict (1.7) but primary C still insured Some say No (1.8f) 3P trying to exercise influence over professional judgment. See RLGL 51(3) comment gduty of care to insurer if no conflict b. Management of litigation/auditing issues Insurance co can pay for L of insured (1.8f) if insured gives informed consent, no interference and doesnt violate 1.6. L cant be bossed around by Co, thats interference. c. Coverage issues 8-11(c) If 2 C and you learn confidential info that could compromise coverage then withdraw from both unless consent without giving a reason and insurance still has duty to provide another attorney L would violate 1.6 to insured, or violate 1.4 duty to the Insurance co. d. Settlement issues Insured wants to settle No general rule that insurer must settle but if a R insurer would have settled & you dont then you can be liable for bad faith refusal to settle. See note 17 p. 327, insurer would have to pay the excess If insurer still refuses then L may have to withdraw if L represents both If one client situation then advise C, and let C make decision to continue or not Insurer wants to settle Insured doesntshould have 1.4 conversation that D is contractually bound to settle but if dont want to then can litigate and pay any judgment on your ownalso likelihood of successful outcome

F. Multiple Concurrent Clients: 1.7 Recall: L SHALL NOT represent 2 clients that are = directly adverse or UNLESS L reasonably believes can provide competent, diligent representation, (whether a reasonable disinterested L would agree) Not prohibited by law Not same litigation Informed consent, in writing 1. C v C, same litigation. 1.7(b)(3), ABA F. Op. 07 - 447 NONCONSENTABLE same litigation Cant do, dont even ask for consent R. 1.7(b)(3) Mediation: Mediators illicit confidential information from both sides so they cant later represent either side later in a divorce 2. C v C, competing for limited asset. Directly adverse, or material limitation? Not opposite in litigation but still directly adverse b/c only 1 will prevail Not consentableNo way an objective L can have a reasonable belief they can represent both sides diligently and competently 3. C v C, unrelated cases: 1.7, Kodak - CONSENTABLE, Apply 1.7 - consent for unrelated mattersRequires a Written Waiver of both Cs! Current C conflicts Both Must Consent Former C and Current C = Both must consent Informed consent = 1.0(f) and disclose all the alternatives 1.4 4. - where duties are materially limited by responsibilities . . . to another client

C v C, "thrust upon conflict" Kodak, Gould

Gouldadopted by KodakMaybe allow Hot potato in thrust upon conflict Flexible TestFactors 1. Prejudice to the parties, including confidential info shared 2. Costs and inconvenience to the party being required to obtain new counsel 3. The complexity of the litigation: what are the odds a new L can get up to speed without prejudice 4. The origin of the conflict: who created L or C? in Kodak, Ls knew about the merger before taking the new cases look for affirmative acts by L Also, 1.7 conflict if represent corp. in one case and major W against corp. in another unrelated suitcriminal D and represent prosecutor W in another suit

5. C v. C negotiations a.

Contentious: directly adverse

b. Representing seller & buyer, 1.7(a)(2) c. 7; Anderson C7: If L asked to represent S of a business in negotiations w/ a B represented by the L, not in the same transaction but in another, unrelated matter, the L could not UNLESS Informed consent of EACH C. - Okay if adequate disclosure and consentbut difficult same issues that come up if lender/borrower, employer/employee agreement etc. 4.3 Dealing w/ unrepresented person - Dont pretend disinterested - If L knows or should know that other party misunderstands relationship should clear it up - L shall not give legal advice other than advice to secure counsel

c.

"common representation" (e.g., drafting wills, creating business entity) 1.7a2, comments 28-33 MAY, if amicable, mutually advantageous reduces cost, complication c. 28 Informed consent necessary (discuss advantages, risks see 1.0(e)) c. 31,32 permissible where interests are generally aligned even if some differences in interest among them e.g. organize a Bus. e.g. R lawyer would think ok MUST NOT if risk of failure so great that multiple representation impossible

(e.g., contentious) c. 29
MUST NOT if impartiality cannot be maintained c. 29 MUST consider and explain impact on AC Privilege at outset of relationship c. 30 No privilege amoung co-Cs L may be forced to testify if fight amoung Co-C MAY NOT if one client asks L not to disclose information relevant to representation (unless all clients agree), c. 31 C may be required to assume responsibility c.32 Any limitation on scope should be fully explained under 1.2(c) What if C not equally capable? c. 32 Have to decide whether the Cs are

equally able to take care of themselves e.g. equal bargaining power, ability to understand, etc.
If ANY C fires, L can't represent any c. 33, 29

If conditions are no longer met, then the L should also withdraw

6.

Co- plaintiffs: 1.7(b) 1.8g

Driver and passenger? Non-Consentable conflict b/c driver might be at fault

Limited Pot: If limited pot of money and damages exceed then probably shouldnt do it b/c interests are adverseprobably non-consentable Aggregate Settlement Shall not unless o 1.7(b) cant if materially limitation o 1.8(g) must get informed consent in writingL must disclose: 1. Advise to terms of settlement e.g. 1 million 2. Existence and nature of claims If same damages can suggest equal split Harder if one is mildly injured and others more severely if cant reach consensus then must withdraw from all Might be disagreement about whether to settleif cant agree then withdraw

7.

Co-defendants: 1.7(b)

Criminal: Generally, not consentable, might be able to if equally culpable, all agree, not serious

Conflicts: one trying to blame the other, different alibis, inconsistent legal and factual situations, trial tactics, impartiality of L Cant if prohibited by lawcapital crimes NOTENo prejudice needs to be shown for ineffective assistance if actual conflict Fed R of Crim P44(c) Judge can sua sponte 1.8(g) also applies to settlements here Civil: Generally, cant consent b/c reasonable L wouldnt think can represent Situations where you may be able to represent both, respondant superior BUT Conflict scope of employment Stocksalmost always issue adverse R. 1.13 g does allow representation of corp. and director
8.

Positional Conflicts? RLGL 128, comment f

Is it unethical to argue the Law is x in case 1 and the law is not x in case 2? Generally, positional conflicts are not an ethical issue P 9-12 p. 372
Exceptionmight be if two appellate decisions in same court and a ruling in one will destroy other case e.g. one L had two cases in SC both on privileges and immunities cl. argued violated privileges and immunities in one case and no privileges in immunities in other --ruling in one case, destroyed other case RLGL 128, comment f p.271generally no issue unless there is a substantial risk Ls action in case A will materially and adversely affect case B

G. Former Clients

1. Former Client; Rule l.9. MAY NOT if:

A. if have Former Client, B. and the matter is either the same or Substantially related AND = Then NO REP D. UNLESS BOTH client gives informed consent, confirmed in writing. SO WHAT SHOULD YOU DO to DECIDE iF SUBSTNATIALLY RELATED? 1. make a factual determination about the first representation. (Scope of rep) Say..what is the subject matter of the 1st rep? tax returns..what do you look at in tax case? Persons financials, assets Turns into what is the scope of the 1st rep? 2. Evaluate whether would confidential info (is it likely, or reasonably to assume) that it would be given to the L for that kind of rep? (what would be shared) DIDNT ASK DID CONF INFOjust would.. o In tax situation..would L do competent job in tax rep without getting confid infoation? No. 3. Is that information relevant to new litigation? Is info to her firnancial sitution relvent to the divorce? YES. going to have a property settlementwhich knowing ho wmuch spouse has is relvant to property settlement ***NOTE -= once find substantial relation, there is a IRrebuttable presumption that secrets/confidences were shared. C. new client's interests are materially adverse to interests of former client,

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; o Once someone moves to another firm, the presumption becomes rebuttable.. BUT As long is same firmpresumption is IRREBUTTABLE>

2. Former Prospective Client, l.l8

a. c. PC = person who discusses possibility of relationship. Lawyer SHALL NOT represent Client with MATERIARLLY ADVERSE interests to PC if received info that could be SIGNIFICANTLY HARMFUL d. EXCEPT 1.18d: Ok if consent of both OR, Lawyer took reasonable measures + screen (disqualify L screened) + (written) notice (given to client). 1.18d. Basically 1.18 if C duty of confidentially owed, but may rep someone against you if they didnt receive confd info from youand Law Firm not disqualified if you had properly screened. b. Lawyer shall not use or reveal information unless l.9 allows.