1 ESSAY- 10 PARTS = 70% 30 MC= 30 %

FOUNDATIONS

OF

PROFESSIONAL RESPONSIBILITY

A. Malpractice Action v. Disciplinary Action 1. Malpractice i. Negligence: attorneys actions were below the standard of care exercised by people in his field ii. Civil court iii. Injured plaintiff iv. Purpose: compensate plaintiff 2. Disciplinary Action i. Expert testimony that attorney deviated from Model Rules

1. This can help to prove malpractice, but deviation from MR is not, in itself,
per se malpractice ii. Tribunal iii. Purpose: punish lawyer iv. Lawyer disciplinary actions are published in NY Law Journal B. Ethical Tensions 1. Tensions between 2 forces attorneys face i. Lombardi/Superman Conflict 1. Lombardi

a. Winning isnt everything, its the only thing lawyers have a duty
to zealously represent clients 2. Superman a. Lawyer knows something is wrong but it is in the best interest of the client i. There is a conflict because you still have a duty to zealously represent your client but may not want to do wrong thing 2. Striking Balance

i. Zealous Advocate Lawyers are ethically and professionally responsible for acting
loyally and zealously on clients behalf

ii. Officer of the Court Lawyers are human beings with strongly held personal
beliefs regarding morality C. Concept of Professionalism 1. Attorneys are members of a profession 2. Profession

i. Certain behaviors that are, at a minimum, to be expected of people of the occupation ii. Require special skills iii. Exclusive licensing 1. Special privileges state enforced monopoly a. Monopoly on practicing law. Only those members admitted to the bar can provide legal services iv. Clients have no idea what we are doing

1. Esoteric nature to law need rigorous training to understand

v. Elitist 1. There are steps you have to go through to be a part

vi. Possibly need to take an oath

3. Professionalism Defined

i. Dean Roscoe Pound [Harvard Law School]: pursuing the learned art, as a
common calling in the spirit of public service, and the money is incidental ii. ABA Commission on Professionalism: special expertise and ethical responsibilities iii. Friedson: an occupation whose members have special privileges, such as exclusive licensing [monopoly] justified by these assumptions 1. Practice requires substantial intellectual training and use of complex judgments 2. Client trust based on inability to evaluate adequately the quality of the service 3. Clients trust presupposes that the practitioners self-interest is overbalanced by devotion to serving both clients interest and public good, and 4. That the occupation is self-serving D. In re Paulter 1. Neal refused to turn himself in unless provided a public defender 2. Paulter pretended to be PD 3. Colorado Attorney Regulation Counsel found that Paulter violated i. Rule 8.4(c) engaging in conduct involving dishonesty, fraud, deceit, or misrep. AND ii. Rule 4.3 dealing with a person not represented by counsel 4. Tried to argue exception to 8.4(c) imminent public harm 5. CO SC held i. Actions NOT justified

1. Even a noble motive does not warrant a departure from the Rules 2. No imminent public harm a. When presented with choices, at least one of which conforms to the Rules, an attorney must not select an option that involves deceit or misrep.

3. Paulter purported to represent Neal that is enough to violate 4.3 4. When there is tension between other duties, it is not a justification to
depart from the Rules a. Image of the legal profession can only be harmed by ethical rules that permit deception

b. Our clients can only benefit from attorneys that set a moral
compass.

REGULATING ATTORNEY CONDUCT

A. History of Model Rules of Professional Conduct 1. 1908 ABA Canons of Ethics first comprehensive attempt by legal profession to regulate itself i. Deliberately vague because drafters were worried that no code could particularize all the situations lawyers would face 1. Too general glittering generalities that lack a body to kick and a soul to condemn 2. Lawyers want more clearly, sharply framed directives a. Produced ethical incoherence ii. No direct regulatory consequence iii. Enforcement was intermittent, haphazard, and often biased against solo and small firm practitioners

2. 1969 Model Code of Professional Responsibility (DIFFERENT from the Model Rules)
i. 3 sections 1. Canons: described general professional norms 2. Ethical considerations: aspirations 3. Disciplinary Rules: set a floor for professional conduct ii. Weaknesses 1. Too concerned with trial lawyers and not transactional/negotiators 2. Didnt take into account large firm, multijurisdictional practice 3. No provision regarding subsequent representation adverse to interests of

former client 3. 1983 ABA Model Rules of Professional Conduct i. Black letter rules with explanatory comments 1. Mandatory: must do require disciplinary action when violated 2. Permissive: allowed to do no disciplinary action when violated [just a guide] 3. Aspirational: speak to level of conduct lawyer should strive to achieve 4. Comments: do not add obligations ii. The ABA does not discipline lawyers 1. Model rules re advisory only UNLESS adopted by the state iii. Must be adopted by states to be enforceable 1. Otherwise advisory

a. Adopted by 49 states [not Cali.]. NY was 48th state on April 1, 2009.

49th state- Maine iv. Client always gets the benefit of the doubt 1. The history of legal ethics and the model rules are Client- oriented. 2. Each lawyer is zealously advocating the interests of their client- adversarial system.

B. Rule 8.1 Bar Admission & Disciplinary Matters 1. An applicant for admission to the bar, or lawyer in connection with a bar admission
application or in connection with a disciplinary matter, shall not i. Knowingly make a false statement of material fact; OR ii. Fail to disclose facts necessary to correct a misapprehension; OR

iii. Knowingly fail to respond to a lawful demand for info. from admissions or
disciplinary authority 1. Unless information is protected by Rule 1.6 C. Admission to Practice

1. Supreme Court of state governs rules and procedures to be admitted to practice

i. Licensing of attorneys in a state is in exclusive control of supreme court

1. NY exception: bar admission is determined by appellate departments

ii. Source of such power

1. Part of definition of what it means to be a court power vests upon

creation of court

iii. Admission to state court does not automatically entitle practice in federal court
1. Precursor to federal practice

a. Must be lawyer in the state where the district court sits i. SC and other jurisdictions allow admission based on prior admission to another federal court b. Need to be introduced to court by a current member of federal bar

2. Pro hac vice

i. Can be admitted to practice before a court that you are not a member of for this turn only 1. Submit a motion with particular court before whom you wish to appear a. Court will likely require i. Some kind of association with local firm because need attorney to be subject to discipline of the court ii. Criminal cases

1. Just because there is a right to counsel, no right to

have someone pro hac vice at trial courts discretion

a. No due process right to hearing if denied [no

constitutional right to pro hac vice representation]

iii. Duty of Competence - Model Rule 1- applies

ii. There is a limit to number of times 1. Not explicitly stated, but if it looks like you are trying to circumvent state admission procedures, can be denied 3. Administrative Agencies

i. Patent and Trademark Office have separate admissions requirements (separate

bar EXAM) in order to practice before that agency [Patent Bar] 4. Good Moral Character i. Applicant has burden of proving good moral character, NOT assumed

ii. A lawyer representing a client/applicant for bar admission is governed by rule

applicable to client/lawyer relationship [Rule 1.6] 1. Duty to client superseded by reporting requirements of Rule 8.1 a. This lawyer would be a lawyer in connection with a bar application, but does not have to disclose facts necessary to correct known misapprehension or knowingly fail to respond to lawful demand for information if such is covered by Rule 1.6 2. Attorney client relationship supercedes any other requirement

iii. Do you have to disclose [Character and Crime] 1. Convictions? a. Yes 2. Arrest

a. Must disclose if asked cannot refuse to answer a question on First

Amendment grounds if it is regarding if you were arrested [even if you were arrested for voicing freedom of speech]

i. Failure to disclose arrest, even as a juvenile, can be an

independent basis for denying admission, even if arrest itself would not be basis for denial b. Arrest/unsuccessful prosecution can be basis for denial

c. Cannot refuse to answer questions about arrest on 5th

Amendment privilege 3. Parking Tickets

a. Do not need to disclose unless application asks elsewhere

i. Even if not required to disclose and they find out, can be basis for denial

b. Pay them b/c they can be evidence of fiscal

irresponsibility/disrespect for the law iv. Morality

1. Courts can deny admission if they view applicants activity, even if not
illegal, as engaging in unauthorized practice of law or having disrespect for legal system a. Even if speech was constitutionally protected

2. IE failed a class for not citing and NOT disciplined under schools honor
code a. If you dont disclose because you were not disciplined under schools honor code, but just failed

i. Denied failure to provide relevant information can be basis

for denial

b. If you disclose, but insist that rules were applied unfairly and
incident has little significance in assessing character

i. Denied not being sufficiently contrite can be basis for

denial c. If you disclose and apologize, noting the seriousness of the matter i. Admitted

v. Financial Habits 1. Poor financial patterns can be a basis for denial a. Until steps/efforts are made to repay debts and take steps to improve financial practices, will not be admitted

DUTIES

OF

LAWYERS

TO

CLIENTS & REPORTING MISCONDUCT

A. Duties of Lawyers to Clients 1. Agency

i. Lawyers are clients agents authority to act of behalf of their clients regarding
the subject matter of the retainer1. Express authority- retainer agreement 2. Implied authority- attorney client relationship. ii. To protect lawyer and client, define scope of representation

1. If open area, lawyer can be subject to malpractice if client expects lawyer

to do something but lawyer doesnt think he was hired for that iii. Binding the Client 1. Actions of lawyer are attributable to client if lawyer errs, is careless, or worse 2. Client delegates authority to lawyer to speak on his behalf and if attorney acts improperly or negligently, client can be in trouble

a. SEC v. McNulty in litigation, attorneys default, mistake or omission

can be attributed to client and client may not be relieved

3. Things lawyer says in court can be vicariously attributed to client, even in

subsequent trial a. IE even if mistrial, representations can be used in subsequent trial 2. Fiduciary

i. Lawyer must place interests of client above his own

1. Honor 2. Integrity 3. Trust a. Unique/ultimate position of trust and confidence b. Lawyers occupy a unique position of trust and confidence ii. Lawyers have highest level of fiduciary duty iii. When an attorney enters into a business transaction with a client 1. It is presumed that the attorney exercised undue influence

iv. Reasons for this highest level of fiduciary duty 7

1. Client depends on lawyers superior knowledge/judgment, integrity and fairness and put aside caution that is customary when dealing with others on important matters

2. Lawyers may have acquired confidential information about client that gives
an unfair advantage in dealings between them

3. Client may be financially or psychologically dependent on attorneys

continued representation not so easy to change attorneys

v. Benson v. State Bar

1. Attorney borrowed money from client in return for IOUs [unsecured promissory notes]

a. Disbarred gravamen of charge was abuse of trust of client

gave unsecured promissory notes because she trusted him and his judgment i. In solicitation of unsecured loans, he failed to reveal extent of financial distress

vi. In re Lerner
1. If client doesnt know about joint representation agreement, it is not ethically valid

a. Self-dealing and divided loyalty here even if plaintiff didnt

sustain economic loss, fiduciary must return ill-gotten gain 3. Loyalty and Diligence i. Lawyer must pursue clients objectives without being conflicted by other responsibilities or interests

1. Duty of loyalty Survives termination of attorney-client relationship

lawyer cannot act adversely to a former client in substantially related matter ii. Duties 1. Pursue clients interests without undue delay 2. Undivided loyalties a. Undermines ability to be diligent and threatens fiduciary position iii. Entire devotion to clients interest, zeal, exertion of utmost learning and ability B. Rule 8.3 Reporting Professional Misconduct

1. (a) A lawyer who knows that another lawyer has violated Rules that raises a
substantial question as to lawyers honesty, trustworthiness, or fitness as a lawyer, shall inform appropriate professional authority i. Rule 1.0(f) defines know

1. Actual knowledge of the fact in question a. Such knowledge can be inferred from circumstances
b. Reasonable lawyer would have more than a firm opinion that conduct in question more likely than not occurred i. More than a suspicion, but not absolute certainty

1. * Always keep memo of suspicions and everything you

did and mail it to yourself to establish credibility if disciplinary hearing a. If you want to use it in such proceeding, show client and get informed consent so you dont violate 1.6 ii. Substantial question as to other lawyers honesty, trustworthiness, or fitness 2. (c) Rule does not require disclosure of information otherwise protected by Rule 1.6

3. Lawyer may report suspected misconduct, but must report known misconduct
i. Obligations to the court 1. You are an officer of the court ii. Obligations to the Clients iii. Obligations to self. 4. Duty to investigate further to reach point of actual knowledge after you have a suspicion? i. No duty in Rules, but spirit of 8.3 tells you that you have to do something, not just leave it

1. Recently, willful blindness has developed investigation will avoid

willful blindness

a. Where there is willful blindness, the law infers that you knew about
it.

5. Wieder v. Skala i. Is it against public policy when a lawyer firm fires a lawyer for reporting a
disciplinary violation by another attorney? 1. NY COA says yes

a. Devised a new cause of action available only to lawyers

i. Wrongful termination based on a law firm requiring an employee to violate professional ethics rule

1. Applied very narrowly only when lawyer would be

required to report another lawyer and firm threatens to fire or fires person not just any

violation

b. Lawyer employment relationship between lawyer and firm is

distinctive, as lawyer is also officer of court who is responsible for professional obligations c. Courts take the obligation to report misconduct seriously (a lawyer can be disciplined for NOT reporting) i. Lawyers are protected from termination for filing mandatory reports under Rule 8.3(a) C. Rule 5.2 Responsibilities of Subordinate Lawyer 1. Lawyer is bound by the Rules, notwithstanding lawyer acted at director of another person

2. Subordinate lawyer does not violate Rules if lawyer acts in accordance with
supervisory lawyers reasonable resolution of an arguable question of professional duty

i. IE there is a duty to report contradictory law to the court. You find a case and
ask your superior if it should be reported to the court [you think it should]. Lawyer says it is factually dissimilar so you dont have to this is a reasonable resolution of an arguable question of professional duty ii. Arguable question of professional duty- the partner assuring you that everything is fine does not satisfy your duty to report.- At this point you still dont KNOW whether there has been violation of the Rules. 1. What do you do with regard to your own personal interest? a. Document your actions to satisfy that you took adequate steps to investigate. 2. What do you do with regard to your obligations to your client? a. Some bigger firms have ethics committees that the L can anonymously report his concerns. D. Reporting Misconduct by Another Attorney 1. What rationales can be given for imposing a duty on lawyers to report misconduct by other lawyers? i. Lawyers have a direct interest in perceiving trust. For the sake of the saving the reputation of lawyers. 1. Maintaining the integrity of the profession ii. The profession has been self-regulating. The obligation of self-regualtion imposes corresponding duties in the exercise of that power.

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CRIMINAL CASES CLIENT-LAWYER RELATIONSHIP: COMPETENCY

A. Rule 1.1 Competence

AND

FEES

1. A lawyer shall provide competent representation to a client i. This requires the legal knowledge, skill, thoroughness, AND preparation
reasonably necessary for the representation 2. Requisite skill is determined by i. Complexity and specialized nature of matter

ii. The lawyers general experience iii. The lawyers training and experience in the field in question
iv. Preparation and study lawyer is able to give the matter v. Whether it is feasible to refer the matter to, or consult with, a lawyer of established competence in the field

3. Specialized skill is usually NOT required

i. Every lawyer capable of competence either through study or association 1. Lack of knowledge or skill really means failure to seek it a. Whether the lawyer spend the time and effort to handle the matter.

4. To enforce duty of competence (THREE WAYS) i. Disciplinary action rare unless egregious conduct 1. ***Single incident is sufficient- enough for the disciplinary authority to
impose sanctions

2. Special circumstances are irrelevant in determining a violation [ie

personal crises]

a. Can be taken into account as far as mitigating consequences but

still subject to sanction 3. (From Least severe to more severe) i. Warning ii. Private Reprimand iii. Continuing Legal Education iv. Community Service v. Public Reprimand/Admonishment 1. Appears in the Law Journal vi. Monetary Fines vii. Interim Suspension- imposed on a lawyer immediately where there is a perceived public threat- usually where lawyers are

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involved with alcohol or drugs. 1. Always followed up full investigation and hearing into lawyers conduct viii. Full suspension 1. Must reapply to have suspension lifted and submit evidence of good character when time is up ix. Disbarment 1. Cannot practice 2. If you want readmission, must make motion to highest court in state and show a. Contrition b. Reformation [underlying problem is gone] c. Good moral character ii. Malpractice action

1. Intentional tort (Fraud, Misrepresentations....), breach of fiduciary duty,

breach of K

2. Negligence Elements of Neglience a. Duty of care to clients [and 3rd parties intended to benefit from
attorneys representation] i. Expert testimony should be presented.

b. Breach of duty of care the standard: competence normally

exercised by attorneys in similar circumstances i. What would a reasonable lawyers have done in the same circumstances c. But for causation i. Basically have to prove that you would have won the case, so essentially becomes two trials in one 1. A criminal defendant must prove that he was actually innocent of the crime of which he was chargd to recover against his lawyer for malpractice. 2. In addition, the defendant must obtain reversal of his conviction as proof of actual innocence 3. Finally the defendant must file the malpractice suit within the appropriate statute of limitations, even if the defendant has not yet obtained postconviction relief. In that case, the malpractice suit will be stayed

12

pending the outcome of a postconviction proceeding.

d. Damages most prove the value of underlying action- cannot be

speculative **Ineffective assistance of counsel can be used as a basis of a malpractice suit.

iii. Ineffective assistance of counsel claim, under 6th Amendment 1. Available only to criminal defendants
a. Can be used to set aside convictions.

2. 6th Amend guarantees defendants the assistance of counsel

interpreted as effective assistance, whether or not attorney is appointed or hired 3. Lawyer is not a party to action a. Criminal defendant bringing a suit against the state to reverse the conviction but the lawyer will try to protect his reputation.

4. Must be causal relationship between professional failure and injury to

client

a. Defendant would have faired better in trial or appeal but for

attorney

5. Strickland v. Washington
a. 2-prong test that defendant has to show to get a new trial

i. Lawyers performance fell below an objective

standard of reasonably effective assistance; AND 1. Many decisions [ie dont call a witness] are tactical and not below standard a. Courts give great deference to tactical decisions of attorneys in these cases b. Strong presumption that the counsels conduct was reasonable. ii. Client suffered prejudice in the sense that verdict was probably affected by lawyers incompetence

1. The defendant must show that there is a a

reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. a. Reasonable probability- a probability sufficient to undermine confidence in the courtroom. 2. Court presumes prejudice in certain situations

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a. Conflict of interests b. Defense counsel fails to follow up on defendants instruction to file appeal

c. Defense counsels representation is so deficient

that the proceedings could not reasonably be considered a true adversarial process [ie attorney is sleeping, doesnt make opening or closings] b. Usually failure to raise certain defense or call certain witness

c. Remedy new trial

Legal Fees B. Is the practice of law a profession or a business? 1. This is a debate about: Tension- ideal that lawyers have to serve the public with the realty that lawyers have to make a living. C. Rule 1.5 Fees

1. (a) A lawyer shall not charge or collect an unreasonable fee or unreasonable expenses.
Factors to be considered in determining the reasonableness of a fee include i. Time, labor, novelty, difficulty and skill required to perform legal service properly ii. Likelihood that acceptance of this particular employment will preclude other employment by L iii. Fee customarily charged in locality for similar legal services iv. Amount involved and results obtained v. Time limitations imposed by client or circumstances vi. Nature/length of professional relationship with client vii. Experience, reputation and ability of L viii. Whether fee is fixed or contingent

1. Comment 2
a. Desirable to furnish client with at least a simple memo or copy of fee arrangement that states i. General nature of legal services to be provided ii. Basis, rate, or total amount of fee iii. Whether and to what extent client would be responsible for costs, expenses or disbursement in course of representation 2. (e) Division of fee between Ls not in same firm is allowed only if i. Division is proportional to services performed by each or each lawyer assumes joint responsibility

14

ii. Client agrees to agreement and share for each lawyer, in writing iii. Total fee is reasonable

3. When you take on a client, you are agreeing not to take on any other business that will
take away from duty to diligently represent client give up right to take on excessive business and right to take on any business that might conflict with clients business 4. Travel i. If youre paid for travel time and you work while traveling on plane, cannot bill double

5. Fees beg the question this is a profession or business? duty to serve public but also
make a living 6. Paying for witnesses

i. Expert witness fee cannot be contingent on outcome, but can pay appearance fee
and expenses ii. Fact witness cannot be paid appearance fees but can be paid expenses 7. 5 types of fees i. Flat

1. Lawyers charge for a given service, regardless of time it takes

2. Must be partially refundable if lawyer does not finish job a. 2 options

i. Determine what % of overall job was completed based on

lawyers good faith estimate ii. Lawyer will charge by hour for work done and refund whatever is left

1. Requires agreement saying this is how we will proceed

if early termination defeats point of flat fee 3. Why charge flat fees? a. Saves administration time. b. Low flat fees attract clients c. Volume business 4. What happens if the client terminates the flat fee lawyer before the job is done?

a. Suppose a lawyer to do a house closing for a flat fee of $1,000 up

front. b. The lawyer gathers some documents, prepares some necessary papers. ii. Hourly

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1. Cannot bill for time that another client is already paying you for. Cannot bill for research already did

2. Bill only for the time earned 3. Rather than looking to profit from the coincidental hours, the lawyer is
obliged under the rules of professional responsibility. 4. ABA requirement- cannot bill for the same hour. 5. Weaknesses a. Economic incentive to work a lot b. Penalizes productivity and promotes inefficiency c. Lack of mentoring d. Decreases pro bono work iii. Contingent 1. Lawyer receives a set percentage if case is won. a. No recovery = no fee b. Most common in personal injury cases 2. Advantage a. Poor people could bring lawsuits without out of pocket expenses 3. Weaknesses

a. Encourage nuisance suits- clog the court system

b. Encourages lawyers to accept subpar settlements to avoid risk of losing fee by going to trial c. Unjustly enrich lawyers who charge high contingent fees [usually 1/3] even when liability is clear and monetary recovery is certain

4. 1.5(c) Must be
a. In writing, signed by client b. State method by which fee is to be determined, including i. % that shall accrue to lawyer in event of settlement, trial or appeal ii. Litigation and other expenses to be deducted from recovery iii. Whether such expenses are to be deduced before or after contingent fee is calculated c. Must clearly notify client of any expenses for which client will be liable whether or not client wins d. After conclusion of matter, L must give client written statement stating outcome and, if recovery, remittance to client and how it was determined

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5. 1.5(d) Prohibited in
a. Matrimonial cases for securing divorce or amount of alimony or support or property settlement in lieu of alimony or divorce i. Public Policy to secure reconciliation b. Criminal cases i. Ineffective assistance of counsel claim usually fails on ground that there was a contingency fee agreement because doesnt mean lawyer was necessarily conflicted ii. Public Policy disincentive for lawyers to push for plea bargain.

6. Reverse contingency fee

a. Take part of what lawyer saved client [ie knock IRS bill down] iv. Value Billing 1. Client is billed based on value of work to client a. The attorney charging the value of the work to the client, rather than simply amount of hours or total amount of recovery 2. Typesa. Lawyer and client negotiate the value of a project at the BEGINNING of a matter i. Essentially a negotiated flat fee b. The lawyer and client negotiate the value of a project at the END of a matter i. Lawyer unilaterally decides value at end ii. Only occurs when things are unknown iii. There is usually, however, a formula in place so that if the lawyer and client cannot agree, the formula will be applied iv. Essentially, it's a type of contingency fee arrangement 3. Used by courts when awarding fees in fee-shifting statutes 4. Usually in a. Environmental and civil rights cases i. Lawyers invest enormous amounts of hours but nominal recovery v. Hybrid 1. Combine 2 or more of the above

a. IE contingent hourly fee L charges hourly rate and client pays 17

if he wins but hourly rate is higher than normal to offset risk of no recovery vi. Apland 1. General retainer a. Fee to make legal services available when needed during specified time i. Fee is earned when paid because attorney is entitled to the money regardless of whether he actually performs any services 2. Special retainer a. Payment of funds for a specific service i. Must be 1. Refundable a. Nonrefundable special retainers are void as unethical 2. Put in a trust account if advance payment a. Rule 1.15(c) Safekeeping Property

i. When fees are paid in advance, must

be put into client trust account and can only be withdrawn by L when fees are earned or expenses incurred

ii. Cannot be left to discretion of attorney

when fees are earned explicitly put in agreement to avoid lawyer taking money before client thinks it is earned ii. Courts presume that a retainer is a special retainer 1. Attorney must show by a convincing preponderance of the evidence that it is something else 3. Here, Apland a. Didnt return unearned fee i. Nonrefundable special retainers are unethical and void b. Didnt put advance fee into trust account c. Lawyer did not provide an accounting of fees.

d. Didnt respond to disciplinary charges [Rule 8.1] e. Contacted P to see if he would settle case before resolution of 18

disciplinary matter i. This can be considered obstructing justice

1. Hands off approach to client after disciplinary action

is initiated can ask judge or hearing officer if you can contact client vii. Are there limits on the amount an attorney can charge? 1. Rule 1.5, current rule, provides only general guidance a. i.e., lawyers fee shall be reasonable 2. Factors to be considered to determine are: a. Time & Labor b. Novelty & Difficulty c. Skill Required d. ALSO: i. Preclusion of other employment by attorney ii. Fee customarily charged in the Locality iii. Amounts Involved iv. Results Obtained v. Time Limitations vi. Nature & Length of Relationship with Client vii. Experience & Reputation of Lawyer viii. Whether Fee is Fixed/ Contingent viii. Rule 1.8(d) Literary or Media Interests in Case

1. Prior to conclusion of representation, L shall not make or negotiate

an agreement giving L literary or media rights to a portrayal or account based in substantial part on information relating to litigation

a. If you take a security interest in anything from media revenues

client might earn in the future can argue ethical but very close to line ix. Rule 1.15(a), (b) Safekeeping Property

1. Prohibition against commingling funds (you cant keep your money

together with your clients. Disciplinary authorities take these violations very seriously. You must keep your clients money separate in trust accounts. This is a per se offense. A violation occurs even if the lawyer was merely negligent.

a. (a) L shall hold property of C or 3P that is in Ls possession

separate from Ls own property

i. (b) Unless for the sole purpose of paying bank service

charge

2. Matter of Warftia 19

a. Commingling funds is per se offense

b. Violation occurs even if L is only negligent [ie wrote check from wrong account]

c. Here, L borrowed money from Cs trust account of advance fee

payment before he earned it disbarred x. Brobeck, Phleger & Harry v Telex

1. Facts: Fee Arrangement. 25k retainer. If writ is denied & no

settlement, then this is the full fee. If case settles before petition is filed, the fee is billed at an hourly rate - $125/hr. If petition's filed and Telex achieves a settlement or wins judgment, then additional fee is

2. Holding: The contract between Telex and Brobeck was not so

unconscionable that no man in his senses and not under a delusion would make it on the one hand and as no honest and fair man would accept it on the other

3. Result:$1M
xi. Matter of Laurence Fordham

1. Facts: Timothy Clark is arrested for OUI; vodka in car, failed sobriety
test, failed two breathalyzer tests. Three other attorneys offered to represent Clark between $3k through $10k. Clark was an acquaintance of attorney Fordham and went to speak with him about the case. Fordham was a very experience senior trial attorney with impressive credentials. Fordham told Clark, however, that he had never represented anyone in an OUI case and never tried a case in District Court. Fordham also explained that he worked on a time charge basis and that he billed monthly. Fordham then. Successfully moved to suppress the breathalyzer results. Represented Clark at trial which ended in an acquittal. For all this work, Fordham charged $50,022.25 for 227 hours of billed time 2. Procedural history

a. Clark complained to the Board of Bar Overseers that the fee was
excessive.Board found in favor of Fordham 6-5. Went to the Supreme Court, which reversed the Board's decision.

3. Reasoning:
a. Reasonableness of the fee - difficulty, novelty, and skill required for the case b. The time spent by fordham exceeded what a prudent

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experienced attorney would spend on an OUI case even considering a novel suppression i. Clients should not pay for education of a lawyer ii. Reasonableness of the fee iii. What is customarily charged in the locality for similar legal services? iv. Customary fee is $15k? xii. Moses Lasky v Laurence Fordham 1. $1M for low amount of work 2. $50k too high

3. Is there a double standard here? a. One set of rules for elite law firms, attorneys for the rich, etc.?And
another set for attorneys for average people?

xiii. Splitting Fees: 1. According to MR 1.5, a lawyer cannot be compensated for assuming an
entirely passive role. Cant simply punt a client. The fees split has to be proportional to the services performed by each lawyer. Client must agree to the split in writing and the writing discloses the share each lawyer will receive. The total fee must be reasonable. Each lawyer must be fully liable for mal practice, professional discipline, and court sanctions. xiv. Petit-Clair v. Nelson

1. Facts: Defendants hire plaintiff lawyer to represent their businesses as

plaintiffs in a lawsuit. Payment of legal fees is secured in part by a mortgage on their personal residence. Defendants default on payments to lawyer. Lawyer sues defendants to recover fees via the mortgage. Plaintiff lawyer sues for recovery and loses in trial court. Plaintiff lawyer appeals.

2. Issue: Whether a mortgage used as a method of securing payment of

lawyer fees is ethical.

3. Holding: No, not in this instance. 4. Reasoning: A lawyer shall not receive a security interest adverse to a
client without first advising the client to seek independent counsel. The client received no independent legal advice regarding the advisability of the agreement, and thus the agreement is invalid. The debt would have been owed by the corporations, not the defendants personally,

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and thus independent counsel would likely have advised the defendants against entering into the agreement.

5. Disposition: Contract giving mortgage to secure payment of lawyer

fees is void. xv. Comingling funds 1. Attorneys are required to exercise extreme care with client funds and not mix them with personal funds 2. This is a per se offense; a violation occurs even if attorney was merely negligent 3. Two primary situations where this happens a. One- $10,000 retainer paid - money is taken before fees are earned b. Two- Settlement proceeds i. Must be deposited in trust account FIRST ii. DEPOSIT TO TRUST ACCOUNT ---> PAYMENT OF PROCEEDS TO CLIENT --> DEPOSIT OF LAWYER'S PORTION TO BUSINESS ACCOUNT iii. A lawyer cannot write a check on a client trust account for personal OR business expenses D. Scope of Representation 1. Formation of Attorney Client Relationship i. An attorney client relationship can occur in a number of ways- no magic words.

ii. Togstad v. Vesley 1. Facts: Attorney said I dont think we have a case (medical malpractice)
but I will check with my partner. Speaks with his partner- says no casedoes not get back to her. Statute of Limitations expired; she was barred from brining suit. She sues for legal malpractice.

2. Issue: Did an attorney-client relationship exist? 3. Holding: Yes. Attorney-client relationship was formed when the lawyer
gave advice (that he believed that there was no case) He was negligent in not investigating further whether the case has merit. A prudent attorney would have suggested to seek other counsel and inform her of the statute of limitations.

4. Rule: Malpractice consists of (1) an existing attorney-client

relationship, (2) in which the attorney acted negligently, (3) in such a way as to be the proximate cause of the clients damages, (4) and but

22

for the attorneys acts the claim would have been successful 5. Takeaway: 1. If a lawyer has indicated that some steps would be takenthen the lawyer will be liable for not doing it 2. The reality of the attorney client relationship is based not on what the lawyer believes but what client believes. 3. The lawyer has the burden of proof in clarifying whether an attorney-client relationship exists. 2. Engagement Agreements i. Client- lawyer agreements contracts, subject to the rules of contract law, but are also governed by a number of special rules that apply because of the fiduciary relationship between attorney and client.

ii. In the case that there are ambiguities in the contract, the terms of the
agreement will be read against the lawyer- Contra proferentum

iii. MR 1.8 (h)- A lawyer may not enter into an agreement with the client
prospectively limiting the lawyers liability for malpractice

1. Engagement agreements limiting the scope of lawyers liability for

malpractice are Unethical and contractually unenforceable 2. Engagement agreements could however contain an arbitration clause. 3. Allocation of Authority between lawyer and client i. Issues of authority can arise 1. Who decides which lawful and ethical measures the lawyer will take- the lawyer or the client? a. The client specifies the problem in broad terms (I want you to represent me in the criminal case). Then the lawyer will manage the day-to-day decisions 2. How do we allocate power between the lawyer and the client? 3. Who controls the way a case is handled- you or the client?

ii. MR 1.2 - Allocation of authority between client and lawyer 1. Rule divides into two categories- the objective and the means 2. Cooperative Relationship: the client sets the overall objectives of
representation and the attorney chooses the means for achieving those goals.

3. MR 1.2 (a) a lawyer shall abide by a clients decisions concerning the 23

objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.

a. Decisions solely for the CLIENT to make - MR 1.2 (a)

i. In civil

1. Whether to settle a matter

ii. In criminal cases, whether to accept a plea bargain. 1. Whether to enter the plea 2. Whether to waive jury trial 3. Whether the client will testify b. The lawyer must abide by the clients decisions about objectives but need only to consult with the client on how to pursue those objectives. i. Clients right to make decisions regarding the objectives of representation DOES NOT mean that the lawyer must follow every decision that clients make. c. A client may authorize a lawyer to make a decision that the client is entitled to make UNLESS the law requires the decision to be made personally by the client- ex. pleading guilty in a criminal case.

4. MR 2.1 a lawyer may refer not only to law but to other considerations
such as moral, economic, social, and political factors that may be relevant to the clients situation. a. Although clients are entitled to make decisions regarding the objectives of representation, lawyers have a duty to counsel their clients regarding these matters. b. Lawyers have broad authority to make tactical and strategic decisions, HOWEVER the lawyers authority to make decisions can be limited in several ways. i. Ex. The lawyers engagement agreement could, for example specify that the lawyer may not employ an expert witness without the clients approval.

iii. Client bound to a third-party by virtue of an agreement or action taken by the

lawyer, even if the lawyer acted without authority

1. When a lawyer proceeds with express authority, the lawyers action binds
the client.

2. Under agency law, the actions of the agent bind the principal when the
agent acts with implied or apparent authority

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a. Ex. Normally an attorney would have apparent authority to agree to a trial date. iv. Jones v. Barnes

1. Facts: Barnes was convicted of robbery and assault in New York and
attorney Melinger was appointed by the court to represent him in his appeal. Barnes told the attorney to raise a number of objections. The lawyer only raised three of them. Court affirmed the sentence. Barnes filed a habeus corpues on grounds of ineffective assistance of counsel (Strickland two prong test)

2. Issue: Does an appointed defense counsel in a criminal case have a

constitutional duty to raise every nonfrivolous issue suggested by the Defendant? 3. Holding:

a. Majority: requires that the lawyer support his clients appeal to the
best of his ability. to maximize the likelihood that the client will prevail in litigation.

i. Rule of Law. The Sixth Amendments effective

assistance of counsel standard does not require a courtappointed attorney to argue every nonfrivolous point raised by his client ii. Constitution grants accused the authority to made fundamental decisions on 1. Pleading, waiving jury trial, and whether or not to appeal

2. BUT, attorney has discretion on what issues to raise on

appeal (lawyer has right to choose the means)

b. Dissent i. C has right to be unwise and to dictate which non-frivolous

argues to raise individual autonomy and dignity of client

4. Termination of the client- lawyer relationship: discharge and withdrawal

i. Discharge -Client has the absolute right to discharge an attorney, regardless of

cause. 1. Contractual provisions that limit the clients right to discharge the lawyer

25

are unenforceable.

2. How should the lawyer be compensated if the client has discharged him? 3. Quantum Meruit- reasonable value for their services.
a. Courts will consider the number of hours worked, the lawyers hourly rate, the difficulty of the case, the stage of the case, and the benefits received by the client. b. Quantum meruit = Ratable portion of the contract that has been performed.

ii. Withdrawal 1. Mandatory Withdrawal: (Not consentable) a. MP 1.16 (a) a lawyer MUST withdraw from representation if the
representation will result in a violation of the Rules of Conduct i. Three situations where lawyer MUST withraw 1. Where ethical rule or law would be violated

a.

Ex. If the lawyer faces conflict of interest or if the client demands that the lawyer engage in illegal conduct.

2. Physical or mental condition materially impairs lawyers ability to represent client 3. Client discharges attorney.

2. Permissive Withdrawal: can be accomplished WITHOUT materially

adverse effect to the client

a. MP 1.16(b) - seven situations in which a lawyer is allowed to

withdraw i. Misconduct, breach of contract, noncooperation by the client, lawyers interests either personal or financial. 1. Client fails to pay fees 2. Attorney would suffer unreasonable financial burden

ii. MP 1.16(b)(4)- a lawyer MAY withdraw if the client insists

on conduct that the lawyer considers to be repugnant or with which the lawyer has a fundamental disagreement. 1. If the lawyer simply disagrees with the clients decision, NOT a ground for withdrawal.

iii. MP 1.16(b)(5)- allows a lawyer to withdraw if the client

fails substantially to fulfill an obligation to the lawyer and has been given reasonable warning that the lawyer will withdraw

26

unless the obligation is fulfilled. b. Attorneys Duty Upon Termination i. When the matter is pending before a court- a lawyer must obtain court approval to withdraw from representation, even if the withdrawal is mandatory rather than permissive. ii. In terminating representation a lawyer must take reasonable steps to protect the clients interest from prejudice. MP 1.16(d) 1. Ex. The time to file an appeal is expiring- the lawyer should first file the appeal and then file a motion with the appellate court to withdraw from representation. 5. Liens

i. MP 1.8(i) prohibits lawyers from acquiring a proprietary interest in the cause of

action except for reasonable contingent fees and a lien recognized by law to secure the lawyers fee or expenses.

ii. Two types of lawyers liens1. Retaining Lien: is the attorneys right to retain client papers or other
valuable client property as security for any unpaid amount the client owes the lawyer.

2. Charging Lien: applied against the proceeds of any settlement or

judgment for any unpaid fees or expenses due. a. Created by statute or by contract.

b. Lawyers may also enter into contracts with their clients in which
they obtain a security interest or mortgage in the clients property to secure payment of their fees.

i. NY lawyers may obtain a mortgage or security interest to

secure their fees ONLY when 1. The retainer agreement provides for such an interest 2. Notice of application has been given to the other spouse 3. The court grants approval for the application AND 4. Lawyer may not foreclose a mortgage on a primary residence while the consenting spouse remains in the residence.

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CRIMINAL CASES CONFIDENTIALITY

* Clients Trust depends on two things: Secrecy and Loyalty A. Secrecy/Confidentiality

a. Secrecy refers to a Ls obligation not to use or reveal information relating to

representation of a client i. This information can come from: 1. A client 2. Documents 3. Third Parties 4. Attorneys own observations. ii. Information may come from client, document, third parties, observations b. Three Branches:

i. Duty of Confidentiality- rooted in the rules of ethics, agency law, and the
lawyers duty of fiduciary prevents lawyers from voluntarily what they know about a client or a clients matter, regardless of the source 1. Rules of legal ethics

ii. Attorney- Client Privilege- rooted in the rules of evidence, prevents lawyers
from being compelled to tell what they discussed (orally or in writing) 1. Arises from the rules of evidence

iii. Work-Product Doctrine- rooted in the rules of civil procedure, generally

prevents lawyers from being compelled to reveal materials they created for purposes of litigation. 1. Rules of Procedure

c. Who is a client? i. Court decisions provide most comprehensive answer to this question ii. Main Test: 28

1. Does this person believe she is your client? 2. If so, is that belief reasonable in light of all the circumstances?
a. Factors i. Expectation of confidentiality ii. Speaking to you in your capacity as a lawyer iii. Seeking legal advice b. Not reasonable i. Someone just looking at your website without any direct communication iii. Judged from clients perspective

iv. You must be clear and explicit about when representation begins and ends
v. Secrecy obligations last forever vi. THE death of a client does not extinguish your duty of confidentiality vii. The termination of the attorney-client relationship does not extinguish your duty of confidentiality

viii. Hypo You represent someone 10 years ago. You run into him and he asks you to
refer him to a patent attorney and you do. Then you run into him again and he asks if you want to buy into his new venture. You say possibly and ask to see the documents. You read the docs and decide to buy in. He is sued and is claiming that you are on the hook as his attorney because you looked over the docs and he depending on you to make sure they were legal. Is he a client? 1. Not really reasonable to infer relationship considering he didnt ask for your advice on the venture, only if you wanted to buy in

2. The fact that you were an investor, that he was represented by another
attorney, and the fact that you gave no legal advice are all relevant [not determinative] to show that he had no reasonable belief ix. Confidential information from a prospective client 1. Must keep confidential information received from prospective client confidential and must decline representation of someone else if that confidential information would materially limit your ability to represent new person a. If there is proof that prospective client was not seeking legal representation but just trying to create future conflicts of interest [ie H in divorce case calls all lawyers in town and reveals confidential information], then no fiduciary relationship arises and no duty of confidentiality

29

x. Can violate duty of confidentiality by not disclosing exact information

1. IE dig deeper into investigation inferring that client is hiding

something and violating duty of confidentiality

d. 3 Branches of Protection
i. Duty of Confidentiality

1. Prohibits a lawyer from voluntarily using or revealing information that

they know about a client or clients matter, regardless of source [relating to representation] 2. Arises from: rules of legal ethics 3. Basis in which substantive law? a. Fiduciary duty, constitutional rights, contractual rights 4. Lawyer cannot

a. Voluntarily tell other people anything about a client without clients

consent or some other exception 5. Rule 1.6(a) Confidentiality of Information

a. Lawyer shall not reveal to others any information relating to

representation unless informed consent, impliedly authorized, or permitted by 1.6(b)

i. IE you learn about someones assets while preparing

divorce agreement this is confidential information relating to representation ii. Loose lips sink ships iii. Covers anything you might learn during course of representation iv. IE interviewing someone about event is relating to representation v. Includes conversation with secretary as agent of attorney b. Scope is enormous i. If someone is seeking the lawyers testimony regarding your client it is not an objection to say that I have a duty of confidentiality- only to protect the client from the attorney VOLUNTARILY disclosing confidential information.

ii. Prohibited from disclosing anything at all relating to

representation

1. IE cannot voluntarily reveal information about

information learned from witnesses, photos of

30

accident, driving record from DMW, copy of plaintiffs auto-maintenance book but you can be forced to produce or testify about these things despite attorneyclient privilege because they are NOT communications iii. Hypo C wrote a letter after accident that confessed in great detail and never mailed it. You it in your file. Protected? 1. If C wrote letter and didnt give it to anyone else but his attorney, all privileges would apply Relating to representation- confidential Seeking counsel- Attorney client privilege Must be Written-Work Product ii. Attorney-Client Privilege

1. Stronger, but more narrow than 1.6 (Duty of confidentiality is more

broader than ACP) a. Anything protected by ACP is protected by 1.6 2. Timing and purpose is crucial- Must be made for the purpose of seeking or providing legal advice or services.

3. Secrecy obligations last forever

4. Death of client/termination of relationship does not extinguish duty of confidentiality 5. Prevents anyone from compelling disclosure a. Fee arrangements are not privileged

6. Arises from: Rules of Evidence

7. Lawyer cannot

a. Be compelled to reveal communications with a client 8. Applies when 5 Cs are present

a. Client i. If you agree to accept someones civil case but not criminal, everything you talked about is protected because they were a prospective client [also protected by 1.6] b. Communicates i. Oral, written, email [even if not marked confidential]

c. Confidentially with
i. There must be intention that the communication will not be disclosed confidentially

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1. The presence of a third party destroys the attorney

client relationship UNLESS the third party is there to facilitate the attorney client relationship- Ex. Paralegal, Family member needs to assist the client ii. Only in presence of client and lawyer unless someone is there to assist in representation OR family member there to assist person, even mentally

d. Counsel [lawyer acting as a lawyer]

i. Includes conversation/phone message with secretary as agent of attorney

e. To obtain Counsel [legal advice] 9. Facts v. Communications

a. FACTS are not protected

i. IE names, addresses of all people who saw P drinking, what

color was light, produce all documents containing info relating to accident or party before accident attorney must answer these questions 1. This is not asking anything about what attorney and client said to each other b. Impliedly authorized under 1.6 to answer, unless C expressly says you arent allowed i. In which case, you are not allowed and have to sit down with C and explain that by law he has to respond 10. Did other Ls refuse to take your case? a. Privileged by ACP because it is implied that they had to TELL you they werent taking your case

11. Waiver
a. Either client or attorney intentionally waives privilege i. IE attorney turns over documents, client mentions communication in deposition

b. Can be accidental- a lawyer that allows a client to answer specific

question on a deposition- that information is no longer privileged.

c. NOT selective all or nothing waived as to everything in a given

subject d. Settlements i. Implied authority that attorney can reveal confidential

32

information that will advance settlement

12. Crime-Fraud Exception

a. Client uses attorneys services to commit a crime or fraud i. Depends on clients intent to commit a crime, not attorneys knowledge ii. Applies to future crimes not past crimes

13. Joint Clients Exception a. 2 clients are being represented by single attorney- privilege exists
among all of them

b. If dispute arises, attorney-client privilege is broken between all

parties

i. Whatever conversation you had between each client is no

longer privileged and anyone can inquire into communication

14. Advice of Counsel Defense a. If client says they did something not knowing it was illegal because
attorney said it was okay [client says he did something on advice of L] waive privilege 15. Self-Defense Exception

a. Lawyer is sued for malpractice or client wont pay, attorney can

defend himself and communications are waived if he responds to charges [ie falsifying evidence] 16. Hypo a. After case is over, client tells attorney he lied about everything i. Not privileged because not for purpose of getting legal advice ii. Confidential because it relates to past representation

b. Ps attorney subpoenas clients record book. Client gave his L this

book during representation. i. Not privileged. Just a physical act of handing over preexisting evidence 17. Subpoena a. Object to it and assert privilege i. If judge orders you to produce it, you can produce without violating ethical duties because there is a court order 18. Entity Clients

a. Can corporations claim ACP and 5th Amendment privileges? 33

i. Yes b. Can an attorney who represents a corporation claim ACP for communications with all officers, directors, and employees or just some? i. Some 1. President and CEO always c. Control Group Test

i. Westinghouse ACP protects corporations only if person who

communicating with lawyer is a member of control group elite group of corporate officers and employees who actually control corporation and make its policies [abandoned in most
jurisdictions]

1. Limits privilege to those who have control over entity a. Criticized as being too narrow d. Subject Matter Test

i. Upjohn conversations between corporate attorney and any

corporate employee, even if conversations are initiated by attorney, are privileged as long as conversations are for the purpose of gathering information necessary to give or implement legal advice to corporation 1. Focuses on nature of communication, not status of communicator a. Criticized as being too broad

e. Nieseg v. Team 1 [who is a party?]

i. Facts: employee of construction co. falls from scaffolding, can attorney interview all employees of company that were present during fall? ii. Trial court and appellate division said all employees are parties for purposes of representation iii. Courts of Appeals 1. Employees are parties/no communication if a. Acts or omissions in the matter bind corporation b. Acts or omissions can be imputed to corporation c. Who are implementing advice of counsel

34

iv. So, for purpose of communicating with employees of entity,

cannot contact those people v. Not every employee is covered

1. Only mere witnesses are left not people running

company, not people running involved, not people acting on direction of counsel a. Only people who just saw happened vi. No rule prohibiting contacting former employees, unless things are protected by ACP iii. Work-Product Doctrine 1. Prevents discovery of materials in anticipation of litigation.

a. Must be tangible [not communications]

b. Includes phone message taken by secretary as agent of attorney c. Includes documents prepared by party [ie letter to L]

2. Arises from: Rules of Procedure

3. Lawyer cannot

a. Be compelled to reveal written material prepared in anticipation of

litigation 4. Legal research, notes on interviews, memos about legal strategies, etc.

5. Hickman v. Taylor a. Ordinary WP

i. Information recorded by L [or Ls agents] because of litigation

ii. FRCP 26(b)(3): discoverable if

1. Substantial need of materials; AND 2. Unable to obtain without undue hardship the materials or substantial equivalent by other means

b. Opinion WP
i. Written impressions, conclusions, opinions, legal theories of L or agent concerning litigation 1. IE I dont think this witness is credible

ii. Virtually immune from discovery- courts will not compel

opinion work product.

iii. Subject to waiver- if lawyer shows opinion work product to

witness- court might conclude that work product protection no longer applies. 6. L runs risk of waiving by showing memos, recordings, etc. to witness

35

a. IE by asking witness to confirm your impressions or sign a document that what you recorded is correct 7. Inadvertent disclosure a. Rule 4.4(b) Respect for Rights of Third Persons

i. Lawyer who receives a document relating to representation

of Ls C and knows or reasonably should know that the document was inadvertently sent shall promptly notify sender

1. Other duties dont act fraudulently

b. California prohibits L from using it for Cs advantage c. MA requires attorney to use the information but return it to sender based on duty to be a zealous advocate d. ACP not waived if attorney takes reasonable steps to make sure this doesnt happen i. If no reasonable steps, court can conclude ACP is waived B. Exceptions to Duty of Confidentiality

a. Rule 1.6(a)
i. Informed consent

1. Rule 1.0(e) a. Agreement by a person to a proposed course of conduct after L has

communicated adequate information and explanation about material risks of and reasonably available alternatives to the proposed course 2. Must tell what you are going to disclose, facts giving rise to situation, material advantages and disadvantages, and alternatives [what will happen if you do or do not disclose] a. IE if you disclose now, will probably settle and if you dont, litigation will be expensive ii. Implied authority

1. Disclosures are required by rules/procedures

2. Disclosures will help client, not hurt a. Never implied authority to hurt client b. Never implied authority to override clients instructions not to disclose b. Rule 1.6(b) Duty of Confidentiality Exceptions

i. L MAY reveal information relating to representation to the extent lawyer 36

reasonably believes is necessary to 1. Must disclose in way that is least damaging to client ii. (b)(1)

1. To prevent reasonably certain death or substantial bodily harm

a. Act doesnt have to be clients i. IE could be a witness plotting to blow up school and has done so in past

1. May reveal future plan, but not past because harm

already happened b. Does not have to be criminal [can be violation of environmental ordinance] c. Does not have to be imminent consequence d. Disclosure can be no broader than necessary to prevent the future harm. e. Disclosure is NOT mandatory- MAY disclose f. What if you learn from a client that he committed a murder that someone else is on death row for? i. Not supposed to reveal past crimes because no reasonably certain death or substantial bodily harm 1. But there is a clearly innocent individual who will die a. Hire an ethics lawyer but no real concrete answer iii. (b)(2)

1. To prevent client from committing crime or fraud that is reasonably

certain to result in substantial injury to financial interests or property AND client used lawyers services to further crime a. IE attorney is retained to get a mortgage using fraudulent means b. This applies to prevent the crime from being committed iv. (b)(3)

1. To prevent, mitigate, rectify substantial injury to

financial/property interests of another that is reasonably certain to result OR has resulted from clients commission of crime or fraud AND client used Ls services to further crime a. This applies after crime has been committed to prevent future damage i. Prior acts from which there will be subsequent damage

37

v. (b)(4) 1. To secure legal advice about lawyers compliance with Rules a. Can seek guidance about whether something you are doing is compliant with rules i. Disclosing information to secure such advice is usually impliedly authorized for lawyer to carry out representation

vi. (b)(5) Ls claim or defense

1. Establish a claim or defense on behalf of L in a controversy between L and C [ie fee dispute, malpractice claim] a. Without this the lawyer is defenseless. 2. Establish a defense to a criminal/civil charge against L based on conduct in which client was involved 3. Respond to allegations in any proceeding concerning Ls representation of C a. IE subpoenaed to testify in grand jury hearing

vii. (b)(6)
1. To comply with other law or court order a. SEC, Sarbanes-Oxley, banking laws 2. Attorney must confer with client and tell client about disclosure and the effects 3. Discretionary but can be subject to violation of law or court order and be held in contempt c. Other Exceptions

i. Rule 1.9(c)
1. Information became generally known after representation

ii. Rule 3.3(a)(3)

1. False evidence is offered to tribunal or lawyer knows client or witness has committed perjury

a. Attorney is required to
i. Notify court that perjury has taken place if done already ii. Remedy situation in some way if L knows perjury is coming, including, if necessary, disclose that it will occur

iii. Rule 3.3(b)

1. L knows that a person is intending to engage, is engaging or has engaged in criminal or fraudulent conduct related to proceedings before a tribunal a. Required disclosure

38

i. IE witness tampering b. Situations that integrity of proceeding is impeached

iv. Rule 1.13

1. When a client is an organization, a clear violation of law may be revealed to prevent substantial injury to organization

a. Required to report internally within organization up the ladder i. If this does not rectify situation, L may report out of
organization

2. Willful blindness applies once attorney realizes there is wrongdoing,

duty to report up the chain of command d. Hypo client tells you he is guilty of killing a girl and wants to get out of jail to hide the body. i. Do you have duty to disclose? 1. No never have duty, just discretion a. This is in the past, NO discretion to reveal past acts ii. Improper for you to assist him in obtaining bail? 1. No you are not presenting perjured testimony, just defending legitimate claim for bail, even though it might end up in him doing something wrong a. But the act you are performing is not in and of itself wrongful b. Difference between doing the right thing and it having wrongful consequences and doing the wrong thing e. What constitutional issues if state passed a law saying lawyers must reveal confidential information about past crimes? i. Separation of powers: inherent rights of courts to regulate attorneys 1. This could be legislature violating separation of powers

ii. 5th Amendment: basically requiring an attorney to tell that his client is guilty iii. 6th Amendment: undermines effectiveness of attorney
C. Attorney Client Privilege and Physical Evidence a. Types of Physical Evidence & How did the Lawyer come to Possess it i. Three categories: 1. Contraband, instrumentalities, or fruits of a crime 2. Ordinary items directly involved in a crime 3. Ordinary items that implicate a client ii. How the L obtained it 1. Given to you by a client

2. Given to you by a third party 39

3. Evidence that you find on your own 4. Evidence that you see but dont touch
a. IE client gives you tour of crime scene 5. That you hear about but dont see

a. IE someone tells you there is evidence but you dont go find it

iii. Options 1. Preserve it in your office?

2. Examine it and give it back to your client?

3. Refuse to touch it or look at it at all? 4. Send it to an expert to have it tested? 5. Destroy it? 6. Turn it over to the police or prosecutor? b. Handling Physical Evidence i. In re Ryder 1. Ryders client told him that there was evidence in a safe deposit box and Ryder took the evidence and moved it to his own box so he could make an argument to suppress on grounds of attorney client privilege 2. Court said

a. Ryders conduct was NOT encompassed by attorney-client privilege

b. It is an abuse of the lawyers professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime

c. Ryder made himself an active participant in the crime- serving as

accessory after the fact. 3. What is covered by ACP? a. Anything D told Ryder including knowledge of what was in the box b. If Ryder saw the materials and never moved them, just left them there 4. What is not covered? a. Ryder taking initiative to collect and hide evidence b. Once Ryder moved the evidence, it becomes not covered

ii. People v. Meredith 1. An observation by defense counsel or his investigator, which is the
product of a privileged communication [ie D tells you where wallet is hidden] cannot be admitted as evidence at trial unless defense, by altering or removing physical evidence, has precluded the prosecution

40

from making the same observation a. If you pick it up, you have to disclose because your fingerprints are on it so you altered the evidence

2. The attorney client privilege applies to communication between attorney

and client a. The mere observation of the evidence which is a result of the communication is protected, however if the evidence is altered or moved so that the prosecutor cannot obtain that same information, the ACP is not applied.

b. So, if the defense attorney takes possession of the evidence, they

have an obligation to turn it over to the authorities later BUT the communication that led to that discovery will NOT be privileged. c. Actually taking possession is DIFFERENT from merely knowing about it c. Delivering Evidence to the Prosecution

i. Defense lawyers in criminal cases are prohibited from hiding evidence in their
offices (or anywhere else)

ii. If a defense lawyer actually takes possession of physical evidence, he/she must
turn it over to prosecution/ police

1. Criminal defense lawyer must give authorities physical evidence that

lawyer receives from client if evidence is material to the case.

d. Prosecution Duties after Obtaining Evidence from Defense Counsel

i. The courts have difficulty; however, in determining exactly what the prosecution can say to the jury about the source of the evidence. ii. How can the prosecutor introduce the evidence to the jury?

1. If the prosecutor received it from the defense attorney and the attorney
cannot stipulate where he obtained it from- the prosecutor will not be to lay a foundation, so a tactical move by defense attorney is to hand it over to the prosecutor. 2. NY is mixed in this area e. How should the L turn over the evidence? i. The L should take careful measures to ensure the protection of the C ii. The L cannot tell the client to conceal it. 1. If there is a high probability that the evidence will be destroyed by the client- must report it. iii. Anonymously report it

41

iv. Report it through another attorney v. NO attorney client privilege attaches when a third party turns over the evidence to the lawyer.

f. Rule 3.4 Fairness to Opposing Party and Counsel

i. (a) A lawyer shall not unlawfully obstruct another partys access to evidence
or unlawfully alter, destroy or conceal a document or anything else having potential evidentiary value OR counsel OR assist another to do so

1. Rule 1.2(d) L shall not counsel C to engage in conduct that L knows to

be criminal or fraudulent also applies if L counsels C in destroying evidence

ii. In most states, destroying physical evidence is a crime even before subpoena is
issued 1. There must be a reasonable belief that a case is pending.

iii. Federal law 1. Intentional destruction of evidence after subpoenaed is issued is an

obstruction of justice and/or criminal contempt

2. If destroyed before subpoena is issued, only a federal crime if a. Evidence is relevant to pending grand jury trial or criminal
investigation; AND b. Destruction was done with corrupt or evil intent iv. Destruction of evidence to prevent use at trial precludes that party from 1. Later introducing secondary evidence to prove contents, but DOES NOT bar the opposing party from doing so v. Inferences

1. Intentional destruction of a document to prevent its use at trial, even

when not illegal, creates an adverse inference that partys whole case is weak a. A skillful lawyer can always explain a damaging document to a jury, but cannot explain a missing document. vi. Perjury

1. Any questions asked of C under oath concerning destruction must be

answered honestly vii. Least detrimental way to turn over evidence 1. Send anonymously

42

2. Hire an attorney to represent lawyer and have them bring it to authorities and have them invoke attorney-client privilege about who your client is g. ABA Standards for Criminal Justice Standard 4-4.6

i. (a) Defense counsel who receives physical item under circumstances

implicating a client in criminal conduct should disclose location or deliver to law enforcement only: 1. (i) Required by law or court order; OR 2. (ii) As provided in (d)

ii. (b) Unless required to disclose, defense counsel shall return item to source from
whom it was received, except (c) and (d) 1. In returning, advise source of consequences of possession and destruction 2. Prepare written record of events but do not give source a copy

iii. (c) Defense counsel may receive item for reasonable time during which defense
counsel: 1. Intends to return to owner 2. Reasonably fears return will result in destruction 3. Reasonably fears return will result in physical harm 4. Intends to examine, inspect, or use item as part of representation

a. Return right after unless reason to believe it will be altered,

destroyed or someone will be harmed b. If retain, keep it in law office in a way that doesnt impede law enforcement from getting it 5. Cannot return it to source

iv. (d) If item is a contraband, defense may suggest client destroy it if no pending
case or investigation AND not clearly in violation of criminal statute 1. If such is not permitted and defense counsel does not think he can reasonably retain the item, whether or not contraband, in a way that does not pose unreasonable risk to anyone, defense counsel should disclose location or deliver item to law enforcement 6 Golden Rules 1) Do not take possession of potential contraband, instrumentalities pr fruits of a crime or move or mess with evidence involved with perpetration of the crime a. Train your subordinates and your agents to do the same

2) Do not destroy or conceal, or advise a client to destroy or conceal any physical evidence and
train your subordinates to do the same.

43

3) Warn clients or third party seeking to give you evidence, that if it is illegal or unethical to posses it , you may be required to turn it over to law enforcement and it may be admitted into evidence against them 4) If you possess contraband, instrumentalities or fruits of a crime- turn it over to law enforcement in a way that minimizes the revelation of client confidences and minimizes any adverse impact on the client. 5) Before taking action, research the applicable ethics rules and the local jurisdictional rules. After you have done your research and the results are inconclusive, consult with other counsel. 6) Document your efforts to legally resolve your situation to shield yourself and the client. j. Attorney-Client Privilege for Organizations a. The most difficult problems arise when a corporation, or any entitiy, is uspected or accused of corruption b. Who is your Client? i. Rule 1.13 Organization as Client 1. When L represents an entity, attorney does not necessarily represent any constituent [director, office, employee, member, SH] or affiliated organization [parent/subsidiary/members of Trade Association when represent Trade Association itself] ii. Can an attorney who represents a corporation claim the attorney-client privilege for communications with all officers, directors, and employees, or just with some of them? And if only some, which ones? iii. Who owns the privilege?

iv. Control-Group Test- Attorney client privilege protects corporations only if the
person communication with the lawyer is a member of the control group- the elite group of corporate officers and employees who actually control the corporation and make policies

1. Federal courts have abandoned this test instead adopted the test in
Upjohn

a. Weaknesses with the Test- Limits privilege to those who have

control power over entity i. Too narrow, because it fails to extend the privilege to some people who are speaking for the corporation (UNDERINCLUSIVE) v. Upjohn Co. v. US (Federal Test)

1. Upjohn was accused of making illegal payments to foreign 44

2. Supreme Court ruling: a. Subject Matter Test:

b. Conversations between a corporate attorney and any corporate

employee... are privileged as long-

i. The employee communicates with the lawyer with the

direction of the employee superior OR is initiated by the lawyer ii. The employee knows that the purpose of the communication is to obtaining legal advice for the purpose of representing the corporation

iii. The communication was within the scope of the employees

employment c. Subject Matter Test (Upjohn)- Focuses on the nature of the communication, not the status of the communicator. i. Was the communication intended to enable the attorney to give legal advice to the entity ii. Question is Does this employee have information that is helpful in defending the corporation?

vi. Samaritan Foundation v. Goodfarb (The Functional Approach) 1. How do we avoid the under-inclusiveness of the control group test, and at
the same time avoid the over-inclusiveness of the broad subject matter test. 2. Functional Approach a. Attorney- Client Privilege ALWAYS applies when the Employee initiates

b. Someone Elses Initiative- Privilege SOMETIMES applies IF:

i. It concerns the employees own conduct within the scope of his or her employment AND ii. Is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corporate client. 1. This excludes from the privilege communications from those who, but for their status as officers, agents, or employees, are witnesses. h. Rule 2.1 Advisor

i. Lawyer shall exercise independent professional judgment and render candid 45

advice. Lawyer may refer not only to law but other considerations such as moral, economic, social, and political factors that may be relevant to client

1. This is an approach towards strategic model of lawyering never tell L

that he has to tell to comply with law, basically try to figure out a way to deal with situation and expose client to least amount of negative effects i. Perjury i. What if your client lies or plans to lie at trial? (not limited to statements -includes tangible things) 1. Does the lawyers role as an officer of the court create a duty to prevent a fraud, notwithstanding the fact that doing so will reveal the attorney-client confidence or subject the client into a devastating lose 2. Does the duty of candor outweigh the duty of confidentiality? a. Nix v. Whiteside

i. 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 self-defense. 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. Whiteside initiated an ineffective assistance of counsel against the attorney. He petitioned for a writ of habeas corpus and the United States Court of Appeals for the Eighth Circuit granted the writ.

ii. Rule of Law. 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.

iii. Holding- Lawyer acted within the scope of his duty. The
majority concluded that the Lawyers actions amounted to a reasonable response to his clients indication that he planned to give false testimony. The right to testify (6th Amendment) does not give the right to falsely testify.

46

1. Supreme Court- applied the Strickland two prong test

j. Rule 3.3 Candor Toward the Tribunal

i. (a) A lawyer shall not knowingly: 1. (1) Make a false statement of fact or law or fail to correct such made by L 2. (2) Fail to disclose legal authority in controlling jurisdiction known
to be directly adverse to position of client and not disclosed by opposing counsel

a. Supreme Court cases are controlling everywhere applicable to

state courts through 14th Amendment b. If in state court, circuit cases are not controlling c. Prosecutors should disclose more because have greater obligation to do justice d. Duty to disclose adverse law, NOT adverse facts

3. (3) Offer evidence that lawyer knows to be false or fail to take

reasonable remedial measures concerning material evidence offered by a lawyer, the Ls client, or Ls witness that the L learns is false, including, if necessary, disclosure to the tribunal

a. A Lawyer may refuse to offer evidence (other than the testimony of

D in a criminal matter) that the L reasonably believes is false regardless of Cs wishes

i. In a criminal trial must know that it is false because the D

has a 6A right to testify [Nix] 1. NY Free Narrative

a. Allow C to testify even if you know it is going to

be false dont ask questions so you dont make arguments based on wrong facts b. Doesnt involve L in perjury c. 3.3 comments say that this is mitigated by cross ii. Lawyer may put the client on the stand and ask questions that will illicit truthful answers and than if the client wants to lie let him narratively testify without asking him questions.

1. Problem with the Narrative Approach- Lawyer

cannot use the false testimony form a narrative in his closing argument.

47

b. Prospective Perjury- Reasonable remedial measures before L

presents i. Tell defendant to tell truth and explain perjury ii. Explain duty might possibly have to disclose, withdraw, etc. iii. Rule 3.3 Before Testimony is Offered

1. Criminal Matter - Rule 3.3 talks about two levels of

certainty: (A) knows and (B) reasonably believes a. If a lawyer knows that a criminal defendant will testify falsely, the lawyer must not put on that evidence b. If a lawyer reasonably believes that a criminal defendant will testify (but the lawyer does not know), then the lawyer must put the client on the witness stand and

i. A criminal defendant, and only a criminal

defendant, ALWAYS has a right to testify, except where the lawyer knows it is false. ii. Everyone else in the world must refer to the lawyer judgment unless the lawyer know s that the witness will lie- than the lawyer must not call the witness.

2. Civil Matter- In a civil matter, if a lawyer reasonably

believes that the client or any other witness will testify falsely, then the lawyer has discretion whether or not to call the person to the stand.

c. Retrospective Perjury- Reasonable remedial measures after L

learns of falsity after presenting

i. if a lawyer, the lawyers client, or a witness called by the

lawyer has offered material evidence and the lawyer comes to know if its falsity, the lawyer shall take reasonable remedial efforts, if necessary, disclosure to the tribunal.

ii. Rule 3.3. After Testimony is Offered- No exception to Rule 1.6

applies, but no exception is needed because the plain language of Rule 3.3 (c) mandates the disclosure of past

48

perjury if nothing else will remedy the situation.

iii. Rule 3.3 is the ONLY rule in the ABA Model Rules that
expressly overrides the duty of confidentiality under 1.6. I f the lawyer finds out that the evidence that was introduced is false- the lawyer has a duty to disclose to the court.

1. NO client confidentially
2. Advise client of Ls duty of candor and seek clients cooperation with respect to withdrawal or correction of falsity

iv. ** Lawyer may be required to withdraw under Rule 1.16(a) if

Ls compliance with this Rules duty of candor results in such extreme deterioration of CL relationship that L can no longer competently represent client

v. ** L can also request Rule 1.16(b) withdrawal

1. If withdrawal does not undue effect of false evidence, advocate must make such disclosure to tribunal as necessary to remedy, even if it means disclosing things under 1.6 2. For reasons that I cannot disclose to the court, I ask that I be withdrawn from the case d. CANNOT offer false evidence i. If reasonable belief of falsity, MAY refuse

ii. (b) A L who knows that a person intends to engage/has engaged in

criminal or fraudulent conduct related to her Cs proceeding shall take reasonable remedial measures, including disclosure to the tribunal

iii. (c) The duties stated in (a) and (b) continue to the end of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. CONCLUSION BEFORE the False evidence was presentedWhen a witness who intends to give evidence that the lawyer knows to be false (in a criminal case) the lawyer MUST: (1) first make a good faith effort to dissuade the client to make false evidence. (2)If the lawyer is unable to dissuade, the lawyer must seek to withdraw. (3)If the lawyer is unable to dissuade and unable to withdraw, the lawyer must use the narrative

49

approach and cannot examine the client to illicit false testimony and CANNOT use the evidence from the narrative in summation. (The narrative is not a remedy to perjury seeping in the case, but it does protect the lawyer AFTER the false evidence has been offered the Lawyer MUST: (4 Rs) (1) Recess the proceeding immediately (2) Remonstrate the perjury- try to dissuade the client, if N/A then(3) Resign- withdraw, if N/A then(4) Reveal the perjury (last option)

CRIMINAL CASES CONFLICTS

B. Foundation

OF INTEREST

a. Attorney-client relationship rests on dual foundation of secrecy and loyalty

i. Loyalty total devotion to interests of client [do nothing to harm or distract your
from pursuing such] b. Conflicts of Interest-Costs i. Erroneously accepting a matter can cost money. ii. Erroneously rejecting a matter costs money. iii. Erroneously continuing a matter costs money.

50

c. 8 events that can trigger conflicts of interest i. New clients- firm must check whether there is a conflict ii. New mattersiii. New Parties- even in existing matters, bringing in new parties may create
conflicts inadvertently

iv. New issues- if the issues conflict with the position that your firm is advocating
for other clients

v. New Attorneys- be careful that a new attorney is not bringing conflicts. vi. New Relationshipsvii. New witnesses- if a witness for the other side was/is your client
viii. Lawyer needs to testify (MR 3.7) d. Types of Conflicts

i. Concurrent conflicts arise between two present clients or prospective clients 1. Direct Adversity Conflicts: Whenever a lawyer directly opposes a
current client a. If you look across the table and you see another former client- direct adversity

b. Loyalty to a current client... 1.7(a)(1) 2. Materially Limiting Conflicts- whenever a lawyers loyalty to a current
client is or may be materially compromised by a competing loyalty to any other person (whether a current client, or some other third person), or by the lawyers own personal interests a. Conflcits exists if there is a significant risk that a lawyers ability to consider, recommend or carry put an appropriate course of action for the client will be materially limited as result of the lawyers other responsibilities or interests.

b. Arise far more often than 1.7(a)(2) ii. Successive Conflicts- arise out of 2 former clients

C. Rule 1.7 Conflict of Interest: Current Clients

a. (a) A lawyer shall not represent a client if the rep involves a concurrent conflict of
interest:

i. (1) The rep of one client will be directly adverse to another client or 51

ii. (2) There is a significant risk that the representation of one or more clients will
be materially limited by the lawyers responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer

1. Duty of loyalty is compromised if significant risk that Ls ability to consider,

recommend, or carry out an appropriate course of action for client will be materially limited a. IE lawyer is tempted to give up an option [defense, cause of action, investigation] because interests are directed elsewhere

2. Most courts refuse to allow hot potato scenario withdraw from

representation of current client to represent another, better client to avoid COI 3. Client is entitled to an undistracted attorney.

b. (b) CONSENT- Despite the conflict, Lawyer may represent Client if **key elements i. **(1) L reasonably believes that L will be able to provide competent and
This means laying out before your C all the pros and

diligent representation to each affected client

ii. (2) The representation is not prohibited by law iii. (3) The representation does not involve the assertion of a claim by one C
against another C represented by the lawyer in the same litigation; AND

iv. **(4) Each affected client gives informed consent, confirmed in writing c. 1.7(b)- Problem 3-8 pp. 315 i. In order for the consent to be informed you have to let the parties know the
possibilities. ii. Even though there is informed consent to waive the cross-claim- perhaps there is a risk that the testimony will conflict with each other.

iii. In interviewing them both, the confidential information may preclude the lawyer
from representing them both. 1. Speak to them separately. d. Conflicts between Two Current Clients

i. Direct Adversity conflicts may arise between two current clients can arise in
five ways: 1. Representing opposing sides in the same litigation a. Universally forbidden- non-consentable i. Rule 1.7(b)(3) 2. Representing opposing sides in a transaction a. Cannot represent a buyer and seller. Model Rules dont provide a rule. This is fine if both parties agree- Consentable

52

b. Comment 6 to Rule 1.7

i. simultaneous representation in unrelated matters of clients

whose interests are only economically adverse,... does not ordinarily constitute a conflict of interest and thus may not require a lawyer to.... 3. Opposing a current client in unrelated litigation 4. Opposing a client in unrelated litigation 5. Multiple representation of allied parties a. For a client to consent, the lawyer must explain: i. the implications of the common representation, including possible effects on loyalty, confidentiality, and the attorney.... b. Advantages of Multiple Representation i. Saves on legal fees for clients ii. Reduces delays because of scheduling conflicts iii. If a dispute develop among the clients in a transaction, maybe a lawyer may be able to smooth it out. c. Disadvantages and Risks of Multiple Representation i. If a conflict develops, a common layer may ignore the conflict, or even deliberately conceal it from the clients, so that a lawyer can continue the multiple representation ii. The attorney-client privilege doesnt apply 1. The lawyer must warn them of this. d. Multiple Representation in Criminal Defense Work

i. Rule 1.7 of the ABA Model Rules

1. The potential for conflict of interest in representing multiple defendants in a criminal case is grey in the are, and the lawyer should be inclined to avoid such representation. ii. Conflicts Between Two current Clients: Indirect Conflicts

1. Conflicts may arise when a lawyer represents different clients in different

unrelated matters and one matter may adversely affect the other matter 2. Although the clients are not directly attacking or opposing each other, one client either a. Wants something that would or could harm the other client, or b. Opposes something that would benefit the other party

3. Lawyer, in that case, may obtain consent of both parties. 53

iii. Conflicts Between Two Current Clients : Positional Conflicts 1. It may be a conflict to represent different parties in completely different matters if their legal positions are incompatible

2. A lawyer CAN take inconsistent legal positions in different tribunals at

different times. 3. A conflict does exist if there is a significant risk that a lawyers action on behalf of one client will create a precedent likely to seriously weaken the postiin taken on by the other client a. Factors to be considered: i. Where are the cases pending? ii. Substantive or procedural? iii. Temporal relationship? iv. Significance of the issue? v. Clients expectations?

b. RULE: ....... iv. Conflicts Between a Client and a 3rd Person: Directly Opposing a 3rd
party 1. A lawyer may be willing to oppose the person even though that person be a defendant 2. ...........................................

v. Conflicts Between a Client and a 3RD Party: Adversely Affecting a 3RD

Party 1. A lawyer may believe that a ................... vi. Conflicts with the Lawyers Own Interest 1. ABA Model Rule 1.7(b) generally prohibits a lawyer from accepting representations that actually or potentially conflicts with the lawyers own interests

vii. Conflicts with the Lawyers Own Interests: Business Transactions with
Clients (Rule 1.8) 1. Prohibited UNLESS a. The transaction and the terms are fair and reasonable in plain language b. The client is advised in writing if the desirability of seeking the advice of independent legal counsel on the transaction c. The client gives informed consent in writing. 2. Business deals between lawyers and clients are highly risky for lawyers

54

a. Any failure to follow rule 1.8(a) may result in suit b. ....................... c. Disciplinary cases against lawyers for violating the rules on business transactions are legion and the discipline is typically harsh i. Disbarments and suspensions are common penalties. e. Who is a client? i. Current 1. Anyone who reasonably believes you are their lawyer and is reasonably relying on you to perform legal services. May consider themselves such at any of 4 stages a. Evaluation

i. Until formally reject matter, prospective client is treated as

current and owe same duties regarding conflict, confidence, and competence 1. If you reject, becomes former prospective client ii. Do not have to take case to create duty 1. If you tell prospective client you are going to do something, you will be liable for not doing it iii. UNAMBIGOUSLY say you are not taking case! b. Work i. Not get completed work 1. SPECIFY SCOPE OF REPRESENTATION!! ii. Client is client until 1. You complete services that you promised to perform 2. Withdraw under 1.16 3. Get fired c. Follow-up i. Expectation of follow-up services is viewed from clients perspective 1. Such expectation maintains clients status as current client, even if communication is not expressed to you a. IE reasonable to expect that you monitor other party adhering to compliance with settlement terms d. Pattern of work

55

i. Arises when client has retained you to do legal work often enough to establish a pattern of relationship [client can say thats my lawyer], even if not doing work for client at that moment ii. Former 1. Anyone who was ever your client in past iii. Never 1. Everyone who is neither current nor former a. Organizations dont automatically rep. officers, directors, employees b. Parents and children if you rep. a child, dont automatically rep. parents c. Third person paying a fee if someone is paying a fee for your client, you dont automatically rep. that person iv. Comment 2, Rule 1.7 1. Resolution of a conflict of interest requires the lawyer a. Clearly ID client b. Determine whether there is a conflict c. Decide whether rep. can be undertaken anyway [consentable?] i. If so, get informed consent, confirmed in writing v. Comment 4, Rule 1.7 1. If conflict arises after representation has been undertaken, L ordinarily must withdraw under Rule 1.16, unless L gets informed consent vi. Rule 1.13 Organization as Client 1. When L represents an entity, attorney does not necessarily represent any constituent [director, office, employee, member, SH] or affiliated organization [parent/subsidiary/members of Trade Association when represent Trade Association itself] a. This can happen if i. Attorney has met individually with that person ii. Attorney has given legal advice to that individual iii. Partner is not individually represented iv. Partner has paid fees to attorney on his own 2. To avoid such conflict, have clause in agreement with entity that says this firm represents entity only and not its partners unless separate agreement has been written and signed

3. Discotrade 56

a. Wyeth AHP WAII and Pharm. Research is subsidiary of

Pharm. i. Firm representing Pharm. must consider WAII [sister corporation or a subsidiary] a current client as Wyeth is viewed as a single entity

1. Same President, board, officers, letterhead, email

address, benefit system, administrative support no consent to waive f. Direct Conflicts i. Can arise in 5 ways 1. Representing opposing sides in same litigation

a. Universally forbidden informed consent is irrelevant

2. Representing opposing sides in a transaction a. Not prohibited by Rule 1.7, but risky

3. Opposing a current client in unrelated litigation

a. Consentable but absolute right to refuse to consent to being opposed in any litigation matter, and if current client consents, L must refuse to accept new case

i. Direct Adversity because you are directly going against

one of your current clients

ii. Materially Limited because from the new clients

perspective, your current representation of, and responsibility to, one of your current clients will pose a significant risk that your representation of this new client will be materially limited

b. Need informed consent

c. Comment 6, Rule 1.7 i. Directly adverse if L is required to cross-examine client A who appears as a witness in a lawsuit involving client B

4. Opposing current client in an unrelated transaction

a. Consentable i. IE if a L is asked to represent the seller of a business in negotiations with a buyer who is currently represented by the L, not in same transaction, but in unrelated matter, L needs informed consent

b. Comment 6, Rule 1.7: simultaneous representation in unrelated 57

matters of clients whose interests are only economically adverse does not ordinarily constitute a conflict of interest and thus, may not require consent of respective i. IE represent 2 different grocery stores in completely unrelated matters. Obviously each would be better off economically if the other lost, but this is not what we are trying to prevent under 1.7 5. Multiple representation of allied parties

a. It is always a [consentable] conflict to represent

i. Co-defendants in civil or criminal litigation

1. In civil, note on final that attorney must want to have

very limited scope under Rule 1.2(c) so that if Cs interests diverge during settlement, attorney can get out ii. Co-plaintiffs in litigation iii. Partners in business b. To get consent, lawyer must explain i. Implications of common representation in WRITING

1. Including possibly effects on loyalty, confidentiality,

attorney-client privilege, and advantages and risks involved

a. ACP does not attach to commonly

represented clients, and neither can claim if representation fails

2. If one client decides that some material matter be

kept from the other, L will have to withdraw because there is a duty of loyalty to each client, and each client has the right to know about anything that might affect clients interests 3. If representation fails to due irreconcilable conflict between parties, L ill be forced to withdraw and there may be additional costs, embarrassment and recrimination c. Advantages i. Saves legal fees ii. Reduces delays because of scheduling

58

iii. If dispute does arise, common lawyer may be able to help parties work out differences before problems erupt into litigation or ruin deal d. Disadvantages i. If conflict develops, common L may ignore conflict or deliberately conceal it so lawyer can continue multiple representation ii. If serious, insoluble conflict arises, all parties may have to get new lawyers, resulting in additional time and expense iii. If common clients get into dispute, they will not be able to claim ACP for communications with lawyer during common representation 1. Attorney must advise clients of this waiver e. If there is already antagonism between the parties or imminent contentious litigation/negotiations i. Lawyer cannot undertake because cannot be loyal to both f. If lawyer will be unable to remain impartial i. L cannot undertake because L is required to remain impartial between commonly represented clients g. Criminal defense work

i. Comment 23, Rule 1.7 potential for conflict of interest in

representing multiple defendants in criminal case is so grave that ordinarily a lawyer should decline to represent more than 1 co-defendant 1. In order to be positive that you can provide competent and diligent representation, there needs to be no evidence that affects 1 party but not the other ii. In criminal defense situation, it is a good idea to disclose everything to the judge to make sure he is okay with multiple representation

1. Prosecution is hesitant to be involved in this because it

can result in ineffective assistance of counsel case if attorney is found to have been conflicted [reversible error] prosecution doesnt want to deal with this

a. Prosecutor can raise objection and judge

decides

59

h. Problems with mass tort cases [products liability, asbestos, etc.] i. Settlement desires ii. Maybe not enough money to go around iii. Conflicts arise from expectation and diversity of injuries g. Indirect Conflicts i. L represents different clients in different matters and one matter may adversely affect the other 1. Although clients are not directly attacking or opposing each other, one client either: a. Wants something that would or could harm the other client, OR b. Opposes something that would or could help the other client

ii. Materially limiting conflict, NOT directly adverse

h. Positional Conflicts

i. Comment 24, Rule 1.7 L may take inconsistent legal positions in different
tribunals at different times on behalf of different clients 1. Merely advocating a legal position for one client creating precedent adverse to the interests of another client does not necessarily create conflict of interest, but it can if

a. Significant risk that Ls action on behalf of one client will materially

limit lawyers effectiveness in representing another client in a different case, like when i. Decision favoring one client will create precedent likely to seriously weaken position taken on behalf of the other client

1. Relevant factors in determining whether C needs to be

advised a. Where cases are pending b. Whether issue is substantive or procedural c. Temporal relationship between matters d. Significance of issue of immediate and longterm interests of client [central to partys claim?] e. Clients reasonable expectations in retaining L i. If significant risk of material limitation, need informed consent

i. Conflicts Between Client and 3rd Party: Directly Opposing 3rd Party i. Lawyers duties of loyalty may be materially limited by responsibilities to 3rd 60

parties 1. IE L may not add a bank as D because his sister is the President, even though L should add that bank j. Conflicts with Lawyers Own Interests i. Ls own interests should not be permitted to have an adverse effect on representation 1. IE

a. L knows that handling a new matter would require traveling and he

wants to stay home for wedding and bday party dont take it

b. L knows that he will become unpopular or subjected to threats/harm

dont take it

c. L asked to bring suit against small company in which he owns a lot

of stock dont take it ii. Business Transactions with Client

1. Rule 1.7(b) and 1.8(a) prohibit L from entering into any client of business
deal with C unless L satisfies 3 stringent and express conditions

a. Transaction and terms are fair and reasonable to C and are fully
disclosed, and transmitted in writing in a matter that can be reasonably understood by C

b. Client is advised in writing of desirability of seeking advice of

independent counsel on transaction

c. Client gives informed consent, in writing signed by client, to

essential terms of transactions and Ls role in transaction, including whether L is representing client in transaction 2. Failure to follow 1.8(a) can result in suit by C against L for fraud, misrep., breach of fiduciary duty a. Disbarment and lengthy suspensions are common penalties 3. In many jurisdictions, business transactions between L and C are presumptively fraudulent or improper a. Burden of L to show that transaction is fair and C was fully informed of all terms in writing before entering i.

FORMER CLIENTS
A. Rule 1.9 Duties to Former Clients [successive conflicts]

b. 1.9 (a) L who has formerly represented a client in a matter shall not thereafter 61

represent another person in the same or substantially related matter in which that persons interests are materially adverse to interests of former client unless former client gives informed consent, confirmed in writing i. Substantial Relationship Test 1. More lenient than 1.7(a), which says a L may not undertake representation that will materially limit ability to represent either C

a. With former clients, however, the new matter has to be

substantially related to something L represented a former C in

i. Only need informed consent if the matter you are handling

for your current client is substantially related to the matter you handled from your former client

2. Comment 3 substantially related if they involve the same

transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as normally would have been obtained would materially advance Cs position in subsequent representation a. IE rep someone and learn private financial information may not then represent persons spouse in getting a divorce b. IE L who previously represented a C in getting environmental permit would be precluded from representing neighborhood in challenge zoning laws but can represent tenant of shopping mall in defending eviction

c. General knowledge of organization Cs policies/practices would not

preclude subsequent rep but specific facts will d. Former C has no veto power if matter is not substantially related to matter 3. Irrebuttable Presumption a. If you personally represented a client in a substantially related matter, irrebuttable presumption that you obtained confidential information relevant and material to current matter

i. If you were billed at any time at all to matter, no matter how

little work you did

c. 1.9 (b) L shall not knowingly represent a person in the same or substantially
related matter in which a firm in which L formerly was associated had previously represented a C

i. Whose interests materially adverse to that person; AND 62

ii. About whom the L had acquired information protected by Rules 1.6 and
1.9(c) that is material to matter

a. Comment 5 only disqualified if have actual information b. Comment 6 inferences, deductions, presumptions may be made i. IE L has general access to all files of all Cs and participates
in discussions about affairs infer privy to such information

2. Unless former C gives informed consent, confirmed in writing

iii. Rebuttable Presumption 1. If your former firm represented the former client in a substantially related matter, courts generally presume that you acquired relevant confidential information a. Generally rebuttable presumption i. You can rebut presumption by showing that you did not have access to former clients confidences 1. IE show that you only had access to the cases you personally worked on

d. (c) L who has former represented C in a matter or whose present or former firm has
formerly represented a C shall not thereafter

i. Use information relating to representation to disadvantage of former C except

as Rules would permit or require or when information has become generally known ii. Reveal information relating to representation except as rules would permit or require

1. Comment 8 does not preclude generally known information

e. Grounds for Personal Disqualification i. You personally represented a C and now a new C wants you to represent them in same or substantially related matter in which new Cs interests are materially adverse to FCs ii. You did not personally represent FC but while working at a previous firm, you acquired protected information about FC in same or substantially related matter and new clients interests are materially adverse iii. Can get informed consent 1. Burden is on lawyer or law firm to spot the former client conflict and get the informed consent a. NOT on former C to object B. Rule 1.10 Imputation of Conflicts of Interests

63

New rule after 2009- newly associated L can be screened from participation and the firm doesnt need to be disqualified from the case. But not all states have adopted the new rule yet.

Question is did the L personally represent the FC in a matter that directly opposed the new firms position. o o If the L obtained any confidential client information in any way- the new firm that directly opposed may now be disqualified Old firm can CONSENT to new firm

a. (a) While Ls are [currently] associated in a firm, none of them shall knowingly
represent a C when any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9 unless

i. (1) Prohibition is based on personal interest of disqualified L and does not

present a significant risk of materially limiting the representation of the C by the remaining Ls in the firm; OR 1. Because neither questions of Cs loyalty or protection of confidential information are presented

ii. (2) Prohibition is based on Rule 1.9(a) or Rule 1.9(b), and arises out of disqualified
Ls association with a prior firm, AND

1. Disqualified L is timely screened from any participation in the matter and

is appointed no part of the fee therefrom

2. Written notice is promptly given to any affected former C to enable

former C to ascertain compliance with the provisions of the Rule, which shall include a. Description of screening procedures b. Statement of firms and Ls compliance with Rules c. Statement that review may be available before a tribunal; and d. An agreement by firm to respond promptly to any written inquires or objections by former C about screening procedure

i. SHOULD include description of screened Ls prior

representation and statement by screened L that Cs material confidential information has not been disclosed

3. (3) Certifications of compliance with these Rules and with screening

procedures are provided to former client by screened lawyer and partner of firm, at reasonable intervals upon FCs written request and upon termination of screening procedure C. Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers

64

and Employees

a. (a) L who was former public officer/government employee i. Is subject to Rule 1.9(c) ii. Shall not represent a C in connection with a matter in which L participated
personally and substantially, unless government gives informed consent in writing 1. ** In connection with is looser than substantially related and interests do not have to be adverse

b. (b) When L is disqualified under 1.11(a), no L in firm with which L is association

may knowingly undertake/continue representation unless

i. L is screened and given no part of fee ii. Written notice is given to government to enable it to ascertain compliance with
provisions of Rule 1. Not as detailed as 1.10(b)(2)(ii)

c. (c) If a government/public L has confidential government information about a

person, L may not represent a private client whose interests are adverse to person L has information about if information could be used to material disadvantage of person about whom L has information i. There is no consent aspect here D. Rule 1.12 Special Conflicts of Interest for Former and Current Government Officers and Employees

a. (a) L shall not represent anyone in connection with matter in which L was a judge
unless all parties give informed consent

b. (b) When L is disqualified under 1.12(a), no L in firm with which L is association

may knowingly undertake/continue representation unless

i. L is screened and given no part of fee ii. Written notice is given to government to enable it to ascertain compliance with
provisions of Rule 1. Not as detailed as 1.10(b)(2)(ii) E. Imputed Conflicts and Firewalls a. Screen/firewall: metaphorical wall of separation between L with conflict and rest of firm b. Types of Firewalls i. Restrictions on disqualified L 1. Must be completely isolated from substantially related matter and all contact with client, witness, and Ls involved ii. Restrictions on other Ls

65

1. Other lawyers in the firm must not discuss case with disqualified L
a. If someone starts talking to disqualified lawyer inadvertently that lawyer must tell him to stop iii. Implementation Measures

1. Firm should circulate a memo to all attorneys and staff in the firm advising
them not to discuss case with disqualified L 2. Firm should make all files of conflict matter inaccessible to disqualified L, either by putting them in special place [lock and key] or making them subject to sign-out system iv. Timing

1. All steps of screening must be taken before the conflict ripens, before new
L joins the firm. Upon immediately learning of conflict c. Former v. Current Clients i. Firewalls dont really work where current C is involved

1. The utility of firewalls, where they are effective at all, is limited to curing
imputed conflicts with former clients. 2. Former clients can move to disqualify the client if he is not properly screened. d. Risks i. Dependent on trust ii. Accidental/intentional breaches iii. Pressure from partners iv. Intentional breaches

e. Public Mistrust- if your lawyer can turn and be on the other side- there is a cynicism of
the legal profession. i. Do we trust attorneys

THE ADVOCATE-WITNESS RULE

*This is a special conflict of interest. 3.7 (a) the disqualification runs to the lawyer personally but not imputed to her firm. A. Rule 3.7 Lawyer as Witness

a. (a) L shall not act as a advocate at a trial (not pretrial) in which L is likely to be
necessary witness UNLESS

1. NECESSARY not disqualified if testimony is cumulative with others ii. The testimony relates to an uncontested issue iii. Testimony relates to nature and value of legal services rendered in the case 66

iv. Disqualification would work substantial hardship on the client

1. To avoid, have someone else [paralegal] in room with you when you interview people to avoid having to testify about that interview and face this rule

2. Comment 4 balance between interests of C and tribunal and opposing

party a. IE would tribunal be misled v. prejudice/importance of testimony

b. (b) L may act as advocate in a trial in which another L in Ls firm is likely to be called as
a witness unless precluded under Rule 1.7 or 1.9

i. Comment 7 If testifying L would be disqualified by Rule 1.7 or 1.9 from

representing C, other Ls in the firm are precluded from representing C by 1.10 unless informed consent

1. IE testifying W is worried about being subject to malpractice for his work

on the case c. Applies any time i. Attorney for party will be called as a witness ii. NECESSARY witness d. Disqualification runs only to i. Advocacy at trial, NOT pretrial work e. Imputation i. NOT imputed to firm f. Policies i. Jury may give too much weight to Ls testimony because of special knowledge of case

ii. Professional courtesy may handicap other L on cross (NOT TRUE)

iii. Lay people may wonder if attorney lied to prevail in litigation iv. Jury may not be able to distinguish between Ls role as witness and role as advocate

1. As a result, it may accord testimonial weight to his closing arguments

B. **Two keys points a. If it is an uncontested matter- the lawyer can still testify b. If the lawyer is disqualified, that does not preclude another lawyer from the firm in testifying.

67

INSURANCE COMPANIES
A. Insurance triangle Defense Counsel / Insurance Company \ Insured

*Problem Arises where the Defense counsel is split in owing a duty to the insurance company and the Insured- because it is the defense counsel that is paying the lawyer. B. Duties a. Insurer owes to insured to defend and pay damages b. Insured owes duties to insurer i. Pay premium on policy ii. Notify insurer in event of lawsuit or incident that could reasonably lead to lawsuit iii. Duty of cooperation C. Split up claims a. Insurer only has duty to defend i. Does NOT have obligation to provide counsel for any additional claims

D. Reservation of Rights Letter

a. Insurance company sends letter to insured, whereby insurer says, we will provide a defense for you, BUT, if you lose and there are damages, we will have another case whereby it is determined whether or not you are covered b. This puts defense counsel in between insurer and insured

i. What if defense counsel learns about possible lack of coverage?

1. Withdraw if he feels it is irreconcilable 2. Inform both insurer and insured that this information exists, relying on multiple representation situation and claim that ACP doesnt exist 3. Keep mouth shut and not disclose to insurer because L is representing the insured as his client, not the company

a. This is the position of Model Rule 1.8 Third Party Payor i. L should not accept compensation from anyone except the
client unless

1. C gives informed consent 2. No interferences with Ls independence of

professional judgment or with client-lawyer

68

relationship; AND

3. Information relating to representation is protected

as required by 1.6

ii. Comment 11 a third person will compensate L, may be

liability insurance company 1. Treats insurer as third party payor E. Competing Views a. Dual-client representation b. Policy Holder representation c. Insurance representation F. ***Lawyers Obligations is always to the policy holder (Primary), insurance company interests (secondary) G. Defense counsel is obligated to tell insured and plaintiffs counsel what coverage exists a. Say my client told me that insurance coverage exists in the amount of

i. If they dont do that and it is learned that policy is greater than initially
represented, and counsel encourage P to settle, L can be on hook [not ins. co.]

H. Excess Situation Settlement Conflict

a. Claim is greater than amount of policy b. P might offer to settle for limits of policy i. That is in insureds interest, NOT insurer

c. Policy usually has a clause that protects the interest of the policy-holder and address the
issue of excess judgment- the lawyer may advise the insurance company to negotiate in bad faith. The lawyer may have to send an Excess Letter to the insured- that there is a risk of excessive judgment and that they may have to consult with independent counsel I. The dilemma arises when the insurance company finds out about the possibility that they might not have to pay the lawyer may not tell this to the insured and should advise to seek independent counsel.

CRIMINAL CASES LIMITS

ON

ZEALOUS REPRESENTATION

A. Two Models Regulating Extrajudicial Statements a. Officer of the Court Model i. Protects the Integrity of the Proceedings b. Client- representative Model i. Lawyers primary Obligation is to the client B. Rule 3.6 Trial Publicity

a. (a) L who is participating, or has participated, in investigation or litigation of a matter 69

shall not make an extrajudicial statement that L knows or reasonably should know will be disseminated by means of public communication will have a substantial likelihood of materially prejudicing adjudicative proceeding (Officer of the Court Model)

b. (b) L may state [not exhaustive] (Safe harbor- if lawyers are to restrict their
statements to these, then they are within the model rules)

i. Claim, offense, defense, and, except when prohibited by law, ID of persons ii. Information in public record
iii. That investigation is in progress iv. Scheduling/result of step in litigation v. Request of assistance in obtaining evidence and information necessary

vi. Warning of danger concerning behavior of person involved, when reason to

believe likelihood of substantial harm to individual or public interest vii. In criminal case 1. ID, residence, occupation, family status of accused 2. If accused has not been apprehended, information necessary to aid in apprehension 3. Fact, time and place of arrest

4. ID of investigating/arresting officers or agencies and length of investigation c. (c) Notwithstanding (a), L may make a statement that reasonable L would believe is
required to protect C from substantial undue prejudicial effect of recent publicity not initiated by L or C.

i. Shall be limited to such information necessary to mitigate recent adverse

publicity. (Client- Representation Model) d. Comment 5 Rule 3.6 i. Cannot make a comment to the media regarding specific tests, polygraphs, testimony. C. Rule 1.2 a. Tactical decisions could be made by the lawyer- (lawyer may choose on behalf of the client, to speak about the case or reply to the allegations in the media Prob. 2-9 pp. 162) D. Sam Sheppard case

a. The first case that could be called the media circus. b. Facts: Doctor in Ohio convicted of killing his wife. He called that a bushy haired man
killed his wife and knocked him out. Because he was a prominent doctor it affected how the judge and jury viewed this case. Released, found not guilty on appeal. Sheppard

70

goes to write a book and goes on the Tonight Show. He also becomes a professional wrestler- The Killer. E. Rule 3.8 Special Responsibilities of a Prosecutor

a. Prosecutor shall 1.
cause (a) Refrain from prosecuting charges not supported by probable (b) Reasonable efforts to advise and assure that accused has been (c) Avoid attempts to get waiver of important pretrial rights from (d) Timely disclosure to defense of all evidence or information

2. 3. 4.

given reasonable opportunity to get counsel unrepresented person KNOWN to prosecution that tends to negate guilt of accused or mitigate offense

a. In connection with sentencing disclose to defense and tribunal

all unprivileged mitigating information KNOWN to prosecutor

F. Rule 8.2 Judicial And Legal Officials

a. (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. b. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct. **Lawyer will be found in contempt. Contempt is only warranted when essential to the orderly administration of justice. **Lawyers first amendment rights are diminished.

G. Lawyers Duty to Disclose Adverse Law (pp.173 Problem 2-10) a. General Rule: Lawyers do not have a duty to help their adversaries or fixing their
mistakes. However whenever there is a legal authority, lawyer must disclose the adverse law. Must cite a recent case that holds that her position is invalid. If she doesnt cite, depending on her adversary to cite it and he fails to do so again. She must disclose that law/case even if it is against her.

i. What does it mean for a case to be directly adverse? 1. Guideline- If the case would be considered important by the judge or the
judge would feel misled, than you need to disclose it

2. Oh Shit Rule: The unhappier you are with a precedent, the more you 71

have to reveal it. ii. Must be: 1. Controlling Jurisdiction; AND 2. Directly Adverse

iii. Lawyers are NOT compelled to provide adverse facts. (You would be breaching
client confidentiality if you were to provide adverse facts) H. Improper Arguments a.

I. Improper Contacts a. Hypo. The case is going to trial and you receive a list of jurors and you follow them and
investigate them. You learn that the juror was employed for

b. Lawyers are prohibited in speaking ex parte (without the presence of other lawyers)
c. ALL types of exchange with the juror, even pleasantries, are prohibited. d. After the case, it is recommended not to talk to jurors i. Depends on local laws regarding communication with juror after the case. J. Rule 3.5 Impartiality and Decorum of the Tribunal

a. L shall not:
i. Seek to influence judge, juror, prospective juror, etc. by means prohibited by law ii. Communicate ex parte w/ such people during proceeding unless authorized 1. Cannot even exchange pleasantries a. Ask judge to explain this so you dont look rude iii. Communicate with juror/prospective juror after discharge of jury if: 1. Prohibited by law or court order 2. Juror has made known to L a desire not to communicate 3. The communication involves misrepresentation, coercion, duress or harassment

iv. Engage in conduct intent to disrupt tribunal.

b. L can look at potential jurors credit reports, drive by their house

i. Dangerous territory to talk to their neighbor because neighbor may tell juror and
juror may find that harassment c. Hypo i. You learn that juror is employed by subsidiary of your clients company. Duty to disclose?

1. No under 3.3(b), only if you know that there is fraudulent conduct a. Even if asked during voir dire, cannot conclude that jurors not 72

admitting is criminal or fraudulent he may not know

K. Rule 3.4(d), (e) Fairness to Opposing Party and Counsel

L shall not (d) in pretrial procedure, make frivolous discovery request or fail to make reasonably diligent effort to comply with proper request (e) In trial, L shall not allude to any matter that L does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts [except when testifying as witness], or state personal opinion as to justness of cause, credibility, culpability, guilt/innocence Can Lawyers present a case that is not in accord with the facts? o YES

L. Rule 4.4 Respect for Rights of Third Parties

a. (a) In representing a client, L shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods of getting evidence that violate legal rights b. (b) L who receives document relating to representation of Ls C and knows or reasonably should know that document was inadvertently sent shall promptly notify sender

i. Comment 2 whether L is required to return the document is a matter of law

beyond scope of Rules M. Special Duties of Prosecutors

a. Prosecutors interest in a criminal prosecution is not that it shall win a case, but that
justice shall be served i. May strike hard blows, but not foul ones b. Prosecutors are subject to state ethics rules

i. Federal prosecutors are subject to ethics rules of the state in which the district
court sits [McDade Amendment] c. Rule 3.8 Special Responsibilities of a Prosecutor

i. Prosecutor shall 1. (a) Refrain from prosecuting charges not supported by probable
cause

2. (b) Reasonable efforts to advise and assure that accused has been
given reasonable opportunity to get counsel

3. (c) Avoid attempts to get waiver of important pretrial rights from

unrepresented person

4. (d) Make Timely disclosure to defense of all evidence or information 73

KNOWN to prosecution that tends to negate guilt of accused or mitigate offense

a. In connection with sentencing disclose to defense and tribunal

all unprivileged mitigating information KNOWN to prosecutor

ii. Comment 1- prosecutor has a responsibility as a minister of justice.

iii. As a prosecutor you have ethical responsibilities and constitutional responsibilities.

iv. Burger v U.S- Prosecutor is the representative not of an ordinary party of a

controversy, but of sovereignty... whose interest... in a criminal prosecution is not that it shall win a case, but that justice shall be done...

v. Constitutional obligation to disclose weakness of case to grand jury? 1. No in the context of presenting your case to the grand jury whole
different proceeding with different obligations

a. US. v. Williams- in Grand Jury, the same procedures in trial do not

apply- up to the prosecutors discretion.

b. Harrison- A good prosecutor can get the grand jury to indict a ham
sandwich

c. Brady obligations dont even apply i. BUT, the Justice Department instructs US Attorneys to
disclose substantial evidence that directly negates guilt if personally aware, even to grand jury.

vi. Brady 1. A Brady motion is a defendant's request for evidence concerning a

material witness which is favorable to the defense and to which the defense may be entitled. Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that may impeach the credibility of a government witness. A Brady violation occurs where the failure to disclose evidence to the defense deprives the defendant of a fair trial.

2. Supreme Court: suppression by prosecution of evidence favorable to an

accused upon request violations due process where the evidence is material either to guilt or punishment, irrespective of good faith, or bad faith, of prosecution

a. Any evidence that is exculpatory- any evidence that tends to

demonstrate the absence of guilt-

74

b. Applies even if prosecution has not suppressed evidence and

defense did not file Brady motion must turn over if you know

i. Material reasonable probability that outcome would

have been different if evidence had been disclosed vii. Hypo

1. 4 witnesses 2 unable to ID defendant and credibility of 3rd can be

attacked a. THIS IS MATERIAL

i. Definite obligation to disclose upon Brady request

ii. Ethical obligation under Rule 3.8(d) 1. Evidence known to prosecution that tends to negate guilt of accused iii. What if you are a subordinate ADA and DA tells you not to disclose?

1. Rule 5.2(b) this is a reasonable resolution of

arguable question of professional duty could comply with supervisors instructions and not disclose that information if you think it is reasonable. viii. Is there an ethical duty to disclose exculpatory evidence?

1. Ethical standard: Rule 3.b Standard (tends to) lower standard than the
constitutional obligation. 2. A good Prosecutor should and would disclose that exculpatory evidence.

ix. Failure by prosecution to disclose exculpatory material in trial

1. Could result in set aside verdict 2. Grievance to disciplinary authorities against prosecution a. Liable for damages? i. No prosecutors have absolute immunity for civil suits when it comes to trial advocacy functions

d. Rule 4.2 Communication with Person Represented by Counsel (No Contact

Rule)

i. In representing a client, L shall not communicate about the subject of the

representation with a person the L knows to be represented by another L, UNLESS consent of other Lawyer (consent cannot be by the party) or law or court order authorizes such 1. If the rule is too broad- people who are the targets of investigation can

75

insulate themselves by hiring a lawyer.

2. If the rule is too narrow- prosecutors/lawyers can talk to anyone 3. United States v. Talao [prosecutor talking with someone represented]
a. Communication with represented person under authorized by law clause

i. 6 factors relevant [balancing test] in determining whether

communications pre-indictment are authorized by law [** once indictment, communications are not authorized by law]

1. Has adversarial relationship developed? a. If just at investigatory stage favors

communication

i. Once indictment, subpoena, grand jury

hearing against communication

2. Pre-indictment - Did informant or government initiate

communication?

a. If informant favors communication 3. Pre-indictment - Does communication demonstrate

evidence of subordination of perjury or obstruction of justice?

a. If yes favors communication 4. Does defense counsel suffer from Conflict of Interest
because informant offered evidence of criminal activity adverse to interests of other clients represented by counsel?

a. If yes favors communication

5. Has government given appropriate warnings of persons rights to obtain counsel?

a. If yes favors communication 6. Has government engaged in misconduct in connection

with communication? IE misrepresentation, coercion, or attempts to obtain attorney-client communications?

a. If yes disfavors communication b. If not favors communication

e. Is it constitutional and/or ethical to threaten to file charges against an additional person

76

[ie defendants wife] if defendants refuse to take a plea? i. Constitutional 1. At plea bargaining stage, prosecutors have a lot of discretion in what charges to bring

a. Prosecutorial Vindictiveness: prosecution brings different

charges/increases charges AFTER defendant exercises constitutional right that can be violation of constitutional right i. Whether or not there was a motive to exercise vindictiveness does not matter ii. Ethical

1. Unethical if doesnt satisfy Rule 3.8(a) cannot prosecute a charge that is

not supported by probable cause

iii. No Contact Rule (4.2) applies to entities (corporations) as well, where

corporations are represented by a lawyer. a. Too broad- no contact with all employees b. Too narrow- contact with only some employees and admit to conduct that can impute liability to the corporation.

iv. Purpose of 4.2 is to protect the Attorney Client Relationship therefore only applies
only to current employees NOT former employees. * There are some cases where the court has prohibited contact with former employees where they have had extensive exposure to the organization.

1. Lawyers must be very careful in accepting documents from former

employees where there is confidential information- that is privileged and the lawyer cannot acquire it. 2. Niesig v. Team I a. Procedural History: Plaintiff sues employer following an accident in which he falls and is injured on the job. Question arises as to whether it is proper for his counsel to interview the witnesses to the accident who were also employees of the defendant

b. Facts: Plaintiff falls from scaffolding while at work and sues his
employer. His fellow employees are witnesses. Plaintiffs counsel seeks to interview the employees. Defendants claim that plaintiffs counsel cannot do this because they are forbidden from communicating directly with the defendant

c. Issue: Whether all employees of a corporation are considered 77

parties for the purpose of the no-contact rule or whether only some employees are.

d. Rule: Anti Contact Rule extends to 3 categories of employees.

i. 1. Those employees whose acts are binding on the corporation (control group) ii. 2. Employees whose acts or omissions can be imputed to the corporation for the purposes of liability iii. 3. Employee who implement the advice of counsel e. Lawyer need to avoid talking to employees who have a lawyer and speaking to employees who were directly involved in the liability producing event.

f. Holding: Only some employees are parties for the purpose of

the no-contact rule.

g. Disposition: Employee witnesses can be interviewed.

v. What should you do when you are approaching an employee of a corporation that you are suing?

1. *Identify yourself explicitly - Tell them who you are representing 2. *Ask whether she has an attorney?
a. If yes- Thank you- good bye! b. If no- Have you hired an attorney personally regarding this matter? i. It does not matter whether this person is represented by personal attorney or corporate attorney. vi. What should you NOT do?

1. *Illicit any privileged information (verbal or written) that are subject to

attorney client privilege. a. Can get confidential documents 2. *Act disinterested f. Rule 4.3 Communication with Unrepresented Person

i. In dealing with someone not represented, L shall not state or imply that he is
disinterested. If L knows, reasonably should know, that unrepresented person misunderstands Ls role, L should make reasonable efforts to correct. L shall not give legal advice, other than advice to secure counsel, if L knows that interests of such person are or have reasonable possibility of being in conflict with interests of client. 1. L should

78

a. Ask if they are represented

i. If yes, Rule 4.2 need consent of other lawyer or law/court

order authorization b. ID his client and explain that C has interests opposed to this person c. Say that talking is voluntary

d. Make it clear that there is no Attorney Client- Privilege

Nothing you say should be construed as giving legal advice [because person you are talking to may have adverse interests to your C]

TAPE RECORDINGS

AND

DISCOVERY ABUSE

A. Two areas of law that you need to consult with regarding this area a. State and Federal i. States vary where you are a party to the conversation 1. 12 states - All parties must consent to the recording

2. ALL other states- One party consent (NY)

b. Disciplinary Rules

B. Tape Recordingsa. Rule 4.4

i. Lawful recording without consent does not violate the Model Rules ii. BUT, under 8.4(c), L cannot engage in fraudulent, deceitful conduct 1. Secret recordings themselves are not inherently misleading, but misrepresentation about whether a conversation was being recorded is improper iii. Also, under 8.4(a) cmnt. 1, L can advise C to engage in lawful conduct iv. Transactions With Persons Other Than Clients 1. Rule 4.4 Respect For Rights Of Third Persons a. (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

b. (b) A lawyer who receives a document relating to the

representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. 2. If you find something, whether you have to hand it over varies state to state.

79

3. There are a number of situations where Rule 4.4(b) does nothing to protect attorney client privilege. (ex. in transactions) 4. If the clients lawyer inadvertently sends an email to the opposing attorney that discusses the clients criminal convictions and charge the information is not attorney client privileged information because it is public- cannot do anything to prevent that information from being used. 5. Bottom line with 4.4(b)-This ethical rule fails to protect the client with situations with information inadvertently getting in the hands of the opposing counsel b. In NY

i. One party consent requirement only 1 party to the conversation has to consent
to the recording for it to be ethically permissible ii. CA, FL, and a bunch of other states say all party consent is needed

C. Depends on the lawyers own ethics- whether he wants to gather evidence that way
a. No correct philosophy of lawyering.

b. As a practical matter- whenever speaking to an adversary assume that you are being
recorded

i. Dont ever say or do anything that you do not want to see on the front cover of
the NY Times. D. Discovery Abuse 3 types a. Formal and informal discovery methods suffer from a fundamental flaw- they do not take place under the direct scrutiny of a judge- some lawyers engage in opportunistic or abusive tactics

b. (1) Unnecessarily broad discovery requests

i. IE interrogatories that nest a lot of questions in 1 question that there are more than 25 questions ii. If L says, our records are here, come look at 8am, then burden is on P to look iii. Ethical requirement that interrogatories are tailored to the factors of the case so that makes it hard to use for interrogatories

c. (2) Withholding information that someone is entitled to [adversary]

i. Objection on grounds of WPD or ACP are not proper if the interrogatory calls for things that happened before suit, not communications with L or prepared in anticipation of litigation ii. ** Must indicate that information is protected and create a log of all the information you are withholding, along with your justification for doing such

80

1. NO blanket objection

d. (3)Actual abusive behavior i. At deposition excessive objection, interrupting your train of thought, witness
coaching, telling W how to answer 1. If the opposing lawyer is abusivea. You would want everything to be on the record as proof. b. You can also ask for the court to supervise if you know that there will be difficulties. c. Do not return the abuse- it will only undermine your argument later on that the other attorney was abusive. Keep your cool.

2. Matter of Jordan Shiff- cursing, obscenities on record,

e. What if partner makes you certify a response that you believe is improper? i. NOT 5.2(b) this is not a reasonable resolution of an arguable question of professional conduct. As an attorney/officer of the court, you have to comply with ethical rules, despite what attorney tells you [5.2(a)]. 1. Dont certify and report him for misconduct under 8.3

f. When L is repeating information that he received, always say the hospital told me or
my client told me be clear that you are merely conveying information

g. Sometimes it is harmful to narrowly tailor answers to discovery request [ie information

related to disciplinary proceedings there was investigation but no proceeding instituted] run the risk of having this found out and used to impeach credibility of witness later. Better to disclose it yourself.

FRIVOLOUS CLAIMS
A. Rule 3.1 Meritorious Claims and Contentions

a. L shall not bring or defend a proceeding, or assert or controvert an issue therein,

unless there is a basis in law and fact that is not frivolous, including a good faith argument of any extension, modification, or reversal of existing law i. L must inform themselves of facts of case and applicable law and determine if they can make a good faith argument, but not frivolous just because facts need to be developed on discovery

B. FRCP 11 a. Most case law dealing with frivolous litigation derives from here because it provides for
monetary sanctions so people want to get Ls under FRCP

b. By submitting or presenting a document the attorney certifies to the best of her 81

knowledge that after her inquiry: 1. 2. 3. Cause of action is not being filed for an improper purpose, such as Legal contentions are warranted by existing law or nonfrivolous argument Factual allegations have evidentiary support or, if so specifically identified, harassment for extending, modifying, or reversing existing law or for establishing new law will have evidentiary support after reasonable opportunity for investigation or discovery

4.

Attorney certifies that denials of factual contentions are warranted on the a. Reasonable inquiry to determine there is both evidentiary support

evidence or are reasonable based upon belief or lack of information for the factual contentions and sufficient law to support the legal claims and that there are no improper purposes. Obligations on attorney in deciding whether or not to bring a case i. Cause of action is not being filed for an improper purpose, such as harassment 1. Rule 3.1 does not have this requirement as long as there is a valid cause of action that is not frivolous but because of FRCP 11, must be conscious of this

2. What is improper?
a. Look at purpose/effect of litigation

i. P brings action because he believes a right needs to be

vindicated or correct economic loss correct

ii. If the purpose is only to make someone pay and not redress
some grievance improper

3. Rule 2.1 L may refer to moral, economic, social, and political factors that
may be relevant to decision a. L can say that its immoral to file improper claim, there are kids involved, shouldnt drag it out, expensive ii. Legal contentions are warranted by existing law or nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law 1. P counsel must investigate what SOL is, whether it has began to run, and if it has expired a. If expired, can serve summons and complaint anyway if counsel can make a nonfrivolous, good faith argument that SOL has tolled

82

i. Would be a real risk to serve without a good faith argument that it tolled b. If SOL is going to expire tomorrow, just make the claim with the facts that you have and conduct investigation later on. If investigation shows claim to be frivolous, withdraw claim later 2. If you are making an argument that there should be a new COA, make research memo and keep it in your file so you can present it when you are met with frivolous claim opposition iii. Factual allegations have evidentiary support or, if so specifically identified, will have evidentiary support after reasonable opportunity for investigation or discovery 1. Medmal look at medical records a. NY state law requires that before filing medmal action, Ps attorneys must consult with medical expert and show that medical expert believes there is reason for suit. Dont have to disclose who witness is, just fact that they met 2. Can P attorney interview hospital doctors, etc. prior to action?

a. Must KNOW that they are not represented by counsel actual

knowledge!!

iv. Same allegations apply to defense counsel answers cannot be frivolous

CIVIL CASES CLIENT-LAWYER RELATIONSHIP: FEES

A. Rule 1.5 Fees 1. Important cases that address size of attorneys fee

i. Telex
1. T hires Lasky, most prominent antitrust attorney to petition SC

a. Contingency fee 83

i. $25,000 retainer. If writ denied and no settlement, this is fee ii. If petition filed and T settles, L gets 5% of net recovery but not less than $1mil iii. There was a settlement and no one paid anyone anything 1. All T did was file to SC 2. Whether or not a K is fair is determined by the time at which it was made. 3. K between C an L was not so unconscionable that no man in his sense and not under a delusion would make it on the one hand, and no honest and fair man would accept it

4. Result L got $1mil ii. Matter of Laurence Fordham

1. Fordham, very experienced, hired to handle OUI case a. Told D he had never done it before and that he worked on hourly fee basis b. Came up with very novel defense and got acquittal c. Charged $40,022.25 for 227 hours of work 2. Court found excessive fee a. Factors under Rule 1.5(a) i. Time required F spent more time than a prudent experienced lawyer would have ii. Fee customarily charged other lawyers charged 1/3 as much iii. Labor and skill required

b. C cannot be held to have understood such an unreasonable fee

was never given estimate like in Telex

iii. ** If your fee is way over what average lawyer would charge, make sure you lay
everything out and suggest client gets independent counsel at your expense. Must specify what types of fees will be included such as medical records fees, etc, when the fee will be deducted (from gross settlement or after.)

iv. American Bar Association issues an opinion: The lawyers conduct should be such
as to promote the trust of the lawyer and the legal profession. The lawyer who has agreed to bill the time of one client should not do any other work for another client. A lawyer who spends 4 hours on behalf of 3 clients, has not earned 12 billable hours. A lawyer who has flown for 6 hours, has not earned 11 billable hours. The practice of billing several clients at the same time goes against rule 1.5.

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CLIENTS ROLE

IN

ADVERSARIAL SYSTEM

A. Canon 7: L should represent C zealously within bounds of law

B. Comment 1, Rule 1.3

a. Take whatever lawful and ethical measures required to vindicate Cs cause or endeavor C. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer a. (a) Objectives of representation controlled by C i. L must abide 1. Decisions reserved to C a. Civil i. Whether to accept/reject settlement b. Criminal i. Enter plea ii. Waive jury trial iii. Testify iv. Appeal ii. Means of pursuing such objections controlled by L

1. Under Rule 1.4, L must consult with C about means b. (c) L may limit scope of representation if limitation is reasonable under the
circumstances and C gives informed consent i. Not reasonable if time allotted was not sufficient to yield advice upon which C could rely D. Rule 1.4 Communication

a. (a) L shall
i. (1) Promptly inform client of any circumstance in which informed consent is required ii. (2) Reasonably consult with client about means by which objectives are to be accomplished iii. (3) Keep client reasonably informed about status iv. (4) Promptly comply with reasonable requests for information v. (5) Consult with client about limitation on Ls conduct if L knows that C expects assistance not permitted by Rules

b. (b) L shall explain matter to client to extent reasonably necessary to permit C to make
informed decisions E. Jones v. Barnes a. Constitution grants accused the authority to made fundamental decisions on

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i. Pleading, waiving jury trial, and whether or not to appeal 1. BUT, attorney has discretion on what issues to raise on appeal b. Dissent

i. C has right to be unwise and to dictate which non-frivolous argues to raise

individual autonomy and dignity of client

TERMINATING ATTORNEY-CLIENT RELATIONSHIP

F. Rule 1.16 Declining or Terminating Representation

a. (a) L shall not represent or withdraw if

i. Ethical rule or law will be violated 1. Not obligated to withdraw if C just suggests ii. Physical or mental condition materially impairs Ls ability to represent C iii. C discharges L

b. (b) L may withdraw if i. Can be accomplished without material adverse effect on Cs interests ii. C persists in courts of action involving Ls services that L reasonably
believes is criminal or fraudulent

iii. C has used Ls services to perpetrate a crime or fraud iv. C pursues objective that L finds repugnant or with which L has fundamental
disagreement

1. Must be something that L does during representation v. C substantially fails to fulfill an obligation to L regarding Ls services AND has
been given reasonable warning that L will withdraw unless obligation is fulfilled

vi. Attorney would suffer unreasonable financial burden or has been rendered
unreasonably difficult by C vii. Other good cause

c. (c) L must comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation. When ordered to do so by a tribunal, L shall continue representation notwithstanding good cause for terminating the representation.

d. (d) Upon termination of representation, L shall take steps to extent reasonably

practicable to protect Cs interests, such as i. Reasonable notice ii. Allowing time to get other counsel iii. Giving papers and property to which C is entitled iv. Refunding any advance payment of fee or expenses that has not been earned or incurred

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G. 3 Things a Non-Engagement Letter Should Contain

a. Unambiguously say you arent taking representation b. Notify non-client [prospective client] that they should seek advice of other counsel c. Caution client of SOL

d. Maybe give vague reason of why you arent taking it

i. Dont want to say too much to avoid giving legal voice [ie likelihood of recovery is not sufficient enough for our firm to take it]

CIVIL CASES: ALTERNATIVE DISPUTE RESOLUTION

A. Model Rule 4.1: Truthfulness in Statements to Others a. In the course of representing a C, L shall not knowingly i. Make a false statement of material fact OR law to third person 1. No affirmative duty to inform an opposing party of relevant facts
2. Misrepresentation can occur if L affirms a statement of another person knowing it is false a. Also partially true but misleading statements or omissions that are equivalent of affirmative false statement

i. IE P says, policy is $300,000 and D knows its $1,000,000

and doesnt say anything.

ii. Duty to disclose to correct a mistake by the other party about

the basic aspects of the transaction and the failure to disclose violates standards of good faith and fair dealing.

1. Duty to disclose major procedural development

mistakes about the amount of insurance coverage.

2. Insurance coverage information is not confidential

information- the attorney must disclose where a mistake to the amount of coverage is made. a. A material fact 3. Not statement of fact

a. While misrepresentations of opinions about the merits of the case

are essential to the negotiation process, misrepresentations of settlement authority are not. b. Further, settlement authority is a matter of fact not opinion.

c. Comment 2 to Rule 4.1 states that the lawyer may ordinarily

make misrepresentations about a partys intentions as to an

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acceptable settlement of a claim.

i. You are permitted to lie (bluff) about the settlement amount

that the client is willing to accept.

d. Generally acceptable negotiation conventions estimate of

price or value of the subject of a transaction and partys intentions re: acceptable settlement

i. IE counsel says P wants his job back when he really doesnt

just misrepresenting what you are willing to settle for 1. Its not improper because the claim has a legal basisthere is no misrepresentation of fact or law- he has a right to ask for it. a. The only thing that is being misrepresented is the seriousness of the demand- it is flexible. b. CAN use false demands as bargaining chip ii. IE CANNOT say discharge caused P to have emotional distress [improper misrep. of claim] 1. Here, the difference is that there is a misrepresentation that will affect a legal claim. e. BUT, if in front of TRIBUNAL, 3.3(a)(1) says you must be truthful

ii. Fail to disclose a material fact to a third person, when disclosure is necessary
to avoid assisting a criminal or fraudulent act by C, unless disclosure is protected by 1.6 1. Unless 1.6, L must disclose information to avoid assisting C in criminal or fraudulent conduct a. Usually can just withdraw to avoid assisting iii. Harrison- Im ready for trial- proper. iv. Rule 8.3 does the attorneys conduct raise an issue about his competence.- smell Alcohol- there may be a duty to report him. 1. Would you accept his settlement which is very low? a. The attorney should discuss this with his client because this may cost the client in the long-run. b. BUT if the client is willing to accept that settlement, what are your obligations? i. ACCEPT the settlement, except if you personally find it unconscionable- you can conflict out of it ii. There is no duty to accept a fair settlement.

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v. Is a confidentiality agreement that requires the opposing party to sign a confidentiality agreement about the settlement proper? 1. Depends on the jurisdiction a. Some jurisdictions recognize these confidentiality agreement i. Florida sees the confidentiality agreement as against public policy. 2. Rule 5.6b- any restriction that prohibits the lawyers right to practice is prohibited. b. Proper to make a threat of criminal prosecution in a civil matter if criminal and civil matter are related

B. Spaulding v. Zimmerman While Defendants counsel had no specific ethical obligation

to disclose Plaintiffs life-threatening condition, they had reason to know that Plaintiff would not have agreed to the same settlement had he known of it. (Confidentiality Rule 1.6)- Defense attorney did not disclose that information. a. Sometimes the role of the lawyer in combination with rules that have narrow exceptionsprevent the lawyer from doing what is the right thing. i. How can you be a good lawyer, follow the professional rules, and be a good person, follow a moral compass. ii. Lawyers have a terrible habit of fitting of what they think the clients objectives are and assume that it is selfish. iii. Lawyers failed to counsel their clients- ended tragically iv. The court failed the court was silent to speak out when confronted with this issue. b. Takeaway Lesson

i. Counseling- Taking your client seriously as a person- communicate with the real
client- not a client stereotype to reach the appropriate result. Attorneys and clients should always talk with each on what to do.

ii. Sometimes things get better- Professionalism Rule 1.6(b)- NOW attorneys are
required to disclose this type of information not just with the insurance company but also with the insured.

DELIVERY PRACTICE

OF

LEGAL SERVICES: ADVERTISING

AND

SOLICITATION & MULTIJURISDICTIONAL

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A. Lawyers in private practice attract clients in: a. Reputation b. Court Appointments c. **Advertising and Solicitation i. The original 1908 canons deemed it unprofessional for lawyers to advertise. Rooted in the public interest-

1. Code did however recognize the value of limited advertising

a. Classified section (just name of lawyer) b. Building Office directory c. Letterhead and business cards.

B. Bates v. AZ State Bar Association

a. Two AZ Lawyers rebelled against state bar association that banned advertising. They called their law firm a Legal Clinic with prices in the ad and placed ad in newspaper that advertised their services (nothing else)

b. Supreme Court- Advertising is constitutionally protected and could not be prohibited by

state

c. But i. Lawyers have no First Amendment right to use advertisements that are false or
misleading

ii. Lawyers have no right to engage in in-person solicitation or live person

(telephone) solicitation 1. Recognize the difference between advertising and solicitation a. Advertising i. Non-targeted mass media b. Solicitation i. Targeted and Personal ii. In person solicitation creates special dangers iii. You are allowed to solicit those where there is a prior professional relationship or family members. 1. Cannot solicit new clients (direct personal solicitation) iv. The material must say THIS IS AN ADVERTISEMENT v. Can a lawyer advertise by conduct a seminar? 1. Charitable, political- YES

2. For personal commercial purpose?

a. Generally PERMISSABLE, however are very risky. L may not directly instruct or direct

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anyone to call. They can be available but cannot initiate d. Suppose former client sends people to the lawyer. The lawyer hasnt paid the former client. Has the lawyer violated any rules of professional conduct? i. NO as long as the client is not compensated. Cannot pay for someone to directly refer clients e. Suppose a laywer was just admitted to the bar, can you advertise that you never lost a case? i. NO f. Just passed the bar- Can you advertise that you specialize? i. Misleading g. Assume the state that the state does not have certification- can you say you specializeNo h. Name of the firm CANNOT imply that there is a government impression

C. Model Rule 7.1 a. L shall not make a false or misleading communication about L or Ls services
i. False or misleading if material misrepresentation or omits facts 1. Also misleading if will lead reasonable person to formulate conclusions about L or services for which there are no reasonable basis

a. IE no charge for initial visit and no fees are due unless we secure
a recovery on your behalf fees 1.5 must tell client if going to be responsible for expenses

b. Need facts to back up statements- more than 95% of our clients

are satisfied with their work i. That sets higher expectations for the client ii. If this is actually true- than its fine. c. We offer discount fees- Need to confirm that other firms actually charge a higher rate

d. 8.4(e) It is professional misconduct for a lawyer to 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; i. There must be a separation between the law firm and JG Wentworth e. unmatched experience- slight puffery is ok.

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f. 1800-CASHNOW Does not violate the MR. g. Past performance is no indication of future performance.

D. Model Rule 7.2

a. L may advertise through written, recorded, or electronic communication

i. Comment 2 what rule permits in advertisements

b. L shall not give anything of value to a person for recommending Ls services, except i. Can pay costs of advertising ii. Can pay charge to be part of referral service c. All communications pursuant to rule must have name and office address of at least 1 L responsible

E. Model Rule 7.3

a. No in-person, live telephone or real-time electronic contact to solicit professional employment when motive is pecuniary gain, unless i. Person is a L ii. L has family, close personal, or prior professional relationship b. Cannot if i. Person made known they dont want to be solicited ii. Solicitation involves coercion, duress, harassment c. Every written, recorded, or electronic communication going to someone known to be in need of legal services must have on the front Advertising Material and at beginning of end of recording, electronic communication unless person in (a)

F. Model Rule 7.4

a. L can say that L does or does not practice in a particular field of law b. Can use Patent Attorney if admitted to PTO or Protector in Admiralty if engaged in admiralty practice c. L shall not state or imply that L is certified as a specialist, unless i. L has been certified by an organization approved by state or Bar ii. Name of certifying organization is clearly IDed in the communication G. Model Rule 7.5 a. Can use trade name if in private practice if it does not imply a connection with government agency of public/charitable legal services organization i. If does not violate 7.1 b. If L is holding public office, his name cannot be used in the name of law firm during any period that he is not actively/regularly practicing with the firm c. L can only say that they participate in partnership if that is a fact

i. Cannot make it seem like two people are practicing law together if they are not 92

Smith and Jones share an office but are not practicing together so cannot call themselves Smith and Jones

MISCONDUCT
A. Model Rule 8.4: a. Professional misconduct for L to i. Violate Rules or assist/induce another to do so ii. Commit a criminal act that reflects adversely on Ls trustworthiness, honesty or fitness as L iii. Engage in conduct involving dishonesty, fraud, deceit, misrepresentation iv. Engage in conduct that is prejudicial to administration of justice 1. IE racism v. State or imply ability to influence improperly a government agency or official vi. Knowingly assist a judge or judicial office in conduct that is violation of applicable rules of law

B. Model Rule 5.6

a. L cannot participate in offering or making i. An agreement that restricts right of L to practice after termination of relationship ii. An agreement in which restriction on right to practice if part of settlement of clients controversy 1. Basically, no non-compete agreements

C. Model Rule 5.4

a. L shall not share legal fees with non-L b. L shall not form a partnership with non-L if any activities of partnership consist of law practice

D. Model Rule 3.2

a. L must make reasonable efforts to expedite litigation, consistent with interests of client

Business Formations
Who is the client? Two Approaches

Group Theory- the lawyer represents all constituents of the entity jointly. o o o In an effort to keep the relationship harmonious That approach is fraught with all kinds of danger. For all larger organizations that approach is unworkable.

Usually works in closely held corporations- where the lawyer has frequent contact with the shareholders (Ex. Jack and Jill)

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Entity Theory of Organizational Representation (Rule 1.13) o Represents only the entity itself Not an easy rule to put into practice because when a lawyer deals with an entity he is really dealing with people.

Problem 5-1 (p.504) o 4 step process to determine whether we can do this 1. Identify the Client You can represent just the entity o Advantage-

You can represent all the people o Advantage-

You can represent just one or some. o Advantage- Already have an established client relationship (client confidentiality). Save money, more practical communication aspect also o Disadvantage- for the members- more expenses

2. Determine whether a conflict exists Single- Because there is a long lasting relationship with one and not the others- more likely that you will favor her Entity- Cannot advocate for anyone person over the other.

3. Whether the conflict is consentable? Is there a fundamental antagonism? o o McDow is putting up all the money- potential for antagonism. What if someone wants to leave the business, how will the interests be divided. Does the lawyer think that he will be impartial? o Here, the lawyer knows McDow and not the other- his impartiality is in doubt At a minimum the lawyer must disclose this with the others The information between the parties must be disclosed? In multiple representation all the clients must be individual responsible.

What are the problems with taking a 10% interest in the business?

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You are becoming a business partner- entering into a business transaction with the client and all the obligations under Rule 1.8 come into effect. Court will presume that the lawyer acted inappropriatelyheld to a higher standard. You have to make sure that your malpractice insurance covers you as a member of board of directors.

Corporate Wrongdoing o o If you discover that there is something fishy in the corporation- the lawyer must acknowledge that his duty is to the ENTITY Rule 1.13

Reporting Up (Mandatory) If an Officer is engaged in any activity that is likely to result in substantial harm to the entity (criminal or civil) the lawyer shall proceeded as reasonably necessary MUST report to a higher authority, up the ladder, in the organization. If that reporting IS NOT enough- than the lawyer must report to an authority that is responsible to stop Highest Authority- Board of Directors To prevent violation of law or a substantial wrongdoing to the corporation

Reporting Out- (Permissive) If the Board of Directors refused to act- The lawyer is permitted (Since 2003), not required, to disclose the information out of the corporation

The information that is disclosed must be to the extent necessary to prevent substantial harm or violation of law- not more.

Problem 5-2

o Your client, company, the vice president is bribing others with giving them
something on the side to renew the contract. The VP is putting the company at risk by bribing others.

o If the VP asks for advice- give her corporate Miranda warning- to seek
individual counsel and tell her that whatever she says will be used against her to the best interest of the corporation, not her.

Duty to Report- Rule 1.13 (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the

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highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, AND (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.

o o

1. Lawyer needs to know that there was wrongdoing 2. The conduct will likely result in substantial injury to the organization. (doesnt have to be a violation of law)

You should lean towards reporting up. Willful blindness- is a deliberate failure of conscious avoidance of the truth- gives rise to an inference that you know of a wrongdoing.

** Noisy Withdrawal- where ordinary withdrawal is not enough-A noisy withdrawal is the public withdrawal of legal representation in which the lawyer, having knowledge of the clients existing or potential improprieties, such as a serious breach of securities law, disavows work done for the client and notifies the proper authorities of his/her withdrawal.

o This is another EXCEPTION to Client- Confidentiality under Rule 1.6

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