Professional Documents
Culture Documents
3 Bright-line Rules vs. Discretionary Standards. Default Rules vs. Immutable Rules. Self Determination vs. Paternalism/Variable Capacity. Ex Ante vs. Ex Post Facto Perspectives. Precedential vs. Dispositional Focus. Rule 8.1. Bar Admission & Disciplinary Matters. .........................................................................4 Sanctions & Procedures for Violating Rules....................................................................................4 Complaint reported. Bar counsel evaluates complaint. Bar counsel proposes all rules it believes atty violated. Grievance committee hears the case. If GC finds atty violated RPC, it imposes sanctions it deems appropriate. Duty of Competence.........................................................................................................................4 Rule 1.1. Duty of Competence. Legal Knowledge & Skill. Cmt. [5]. Thoroughness & Preparation. Cmt. [6]. Maintaining Competence. Malpractice Elements of Malpractice Claim. Who may sue: Ineffective Assistance of Counsel; Strickland Test. Elements: Policy rationales: (2)Attorney Client Relationship. Assn. 6-9; P. 87-166; R. 1.2, 1.13, 1.14, 1.16.................7 Entering ACR...................................................................................................................................7 Test for attorney-client relationship. The Accidental Client: Clients Reasonable Reliance May Be Enough to Create ACR. ACR may be implied when: Reasonable Client Standard. May be implied through actions of attys staff. Rule 1.13 Organization As Client. Insurer and Insured Ending ACR.....................................................................................................................................8 Rule 1.16 Declining/Terminating Representation. Ethical Rules Concerning Withdrawal Accepting retainer may be an implicit agreement to prosecute the matter to a conclusion. Defaulting on duty can result in contempt of court; once pending in court, judge's permission is required for withdrawal. Fees on Termination by Client. (Competing) Policy concerns: Three theories (Rosenberg v. Levin) Resisting Termination. Elements required for c/a for retaliatory discharge: Minority rule: No c/a. C/a exists where atty discharged insisting firm comply with PR-reporting rules. Allocating Decision-Making Authority..........................................................................................10 Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer. Balancing. Models of the Relationship Agency law; may bind client via apparent authority. Criminal Cases Rule 1.14. Client with diminished capacity.
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(3)Duty to Protect Information. Assn 10-12; pgs. 168-227. Rules: 1.6, 1.8(b), 1.9(c), 1.18 (b), 4.1(b). .............12 Policy..............................................................................................................................................12 Rule 1.6. Confidentiality of Information.......................................................................................12 Defining the duty: Exceptions to the duty: Informed consent Impliedly authorized Permissive disclosure adverse to client: Bodily Harm or Injury. Clients Crime or Fraud in Which Client is Using or Has Used Attys Services. Lawyer Protection. Confidential Info vs Physical Evidence. Other rules. Attorney-Client Privilege. ..............................................................................................................14 Formation of the Privilege Elements: Corporate privilege: Work product doctrine. Defeating the Privilege. Client owns the privilege. Waiver of the Privilege. Testamentary Crime/Fraud (4) Conflicts of Interest. 13-16 Pp. 230-302. MRPC 1.7-1.10, 1.18 .................................15 Concurrent Conflicts of Interest ....................................................................................................15 Rule 1.7. Conflicts of Interest: Current Clients Is there a concurrent conflict of interest? Is the conflict consentable? Informed consent. Screening for conflicts. Cmt [3]. Resolving conflicts. Cmt. [2]. Cmt. [13]. Interest of Person paying for a Lawyers Service. Cmt. [31]. Common Representation & Duty of Confidentiality. Conflicts of Interest in the Criminal Case Personal Interest Conflicts: Rule 1.8..............................................................................................17 Business Transactions With a Client Use of Info Related to Representation Financial Assistance Person Paying for a Lawyers Services Sex with Clients Consecutive Conflicts & Imputed Disqualification .......................................................................19 Consecutive Conflicts Analysis Rule 1.9. Duties to Former Clients. Present or Former Client? Hot Potato Client - Cant dump a client so that representation wont create a COI prohibiting representation of a more lucrative/desired client. Ongoing Attorney-Client Relationships: Existence of relationship largely dependent upon clients reasonable but subjective understanding. Rule 1.18. Duties to Prospective Clients Rule 1.10. Imputation of COI: General Rule. Lawyer Mobility Conflict Hypos. (5)Fees & Fiduciary Duties. Assn. 17-18; pgs. 318-355. Rule: 1.15 ................................22 Rule 1.5. Fees................................................................................................................................22 Policy Considerations. 2
(a) Fees must be reasonable. Fee Rate & Terms of Payment (d) Prohibited Contingent Fees. (e) Division of Fees. Impermissible fees. Fiduciary Obligations: Taking Care of Other Peoples Money .....................................................24 Rule 1.15. Safekeeping Property. Trust Accounts (6)Duties to the Court, Profession, and Public......................................................................25 Duties to the Court: Client Perjury.................................................................................................25 Rule 3.1. Meritorious Claims & Contentions. Rule 3.3. Candor Twd the Tribunal. Before the Client Testifies: The Duty to Remonstrate. Deciding to Offer Testimony. After the Client Testifies: The Duty to Take 'Reasonable Remedial Measures" Perjury trilemma. Duties to the Court: Lawyer Honesty.............................................................................................27 Rule 3.4 Fairness to Opposing Party and Counsel. Preserve evidence. Do not assist in false testimony-- no coaching. No personal opinion/knowledge-- no vouching. Do not mislead the court! Duties to Co-Professionals: Advertising & Solicitation.................................................................28 Rule 5.5. Unauthorized practice of law; multi-jurisdictional practice of law. Rule 7.1. Communication concerning a lawyer's services. Rule 7.2. Advertising. Rule 7.3. Direct contact with prospective clients. Rule 7.4. Communication of fields of practice and specialization. Duties to the System. .....................................................................................................................29 Rule 6.1. Voluntary pro bono public service. Rule 8.3. Duty to Report Misconduct. Rule 8.4. Misconduct.
(1)INTRO.
SCOPE;
Bar counsel evaluates complaint. Bar counsel proposes all rules it believes atty violated. Grievance committee hears the case. Who? Usually state bar assn. Whole thing is separate from criminal/civil justice systems! Standard of proof. Lower standard of proof than criminal/civil cases. Majority rule:
Preponderance of the Evidence; some states use C&C Evidence So, could be acquitted of, or never even charged w/, a crime/legal violation, but can still be disbarred for it. E.g., Clintons statements insufficient for criminal perjury but misleading enough that license suspended. If criminally convicted, its moral turpitude per se; GC can/will find, by default, atty violated the rules , since atty met a burden of proof higher than that required by GC. E.g., Scooter Libby had merely a summary lawyer disciplinary hearing after criminal conviction. Behavior during investigation & proceedings. Cooperation & deference to Bar essential; its possible for the GC to find underlying disciplinary complaint unfounded, but still impose sanctions on atty for failing to adequately cooperate during disciplinary process.
Atty must provide client w/ competent representation. Competent representation = legal knowledge, skill, thoroughness, & preparation reasonably necessary for the representation. Charging a client for case-specific research, or familiarization with a unique issue involved in a case is OK, but charging for general education or background research is not OK. Docking. Atty w/ no prior felony-trial exp. represented 3 Korean Ds in felony trial despite COI; ct. found atty lacked reqd competence. Should have associated w/ a more experienced atty & should have had an interpreter @ all meetings. Concurrence. That he lacked experience wasnt dispositive-- rather, that he didnt take proper steps to meet reqd level of competence-- here, it would have been to consult w/ expd atty.
Legal Knowledge & Skill. Cmt. [1]. What constitutes LK&S. Typically, required proficiency = that of a general
practitioner but sometimes expertise in a particular field is necessary, depending on the circumstances. Relevant factors: Relative complexity & specialized nature of the matter Attys general experience Attys training & experience in the field in question Preparation & study atty is able to give the matter Feasibility of associating/consulting w/ or referring issue to an atty of established competence in the field in question. Cmt. [2]. Special training/exp. not essential. Special training or prior experience not necessarily reqd; brand new atty can be just as competent as a seasoned atty. Atty can provide adequate representation in a wholly novel field via necessary study. Atty can associate w/ an atty whos competent in the particular field. Competency essentially requires general legal skills [i.e., ability to analyze precedent, evidence, etc.]. Most important legal skill = determining what kind of legal problems a situation involves. Cmt. [3]. Emergency circumstances. Atty may advise/assist when he does not have reqd skill when referral/consultation w/ another atty is impractical-- but limit assistance to what is reasonably necessary under the circumstances.
Malpractice
Elements of Malpractice Claim.
Treated as a tort claim; ordinary negligence. (1) Duty. Reasonable atty standard. [So malpractice lawsuit requires expert testimony.] (2) Breach of duty. (act or omission) Prima facie negligence to misadvise a client on settled point of law verifiable by ordinary research. Lopez. Often established via expert testimony. Merely violating RPC breach of duty.
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(3) Proximate causation. Case w/in the case. Must re-try the underlying case to see if client would now be in a different position if atty had acted like a reasonable atty. Not superseded in Lopez (failure to explain SOL) by another atty that did not undertake any representation of the client. Liable atty = atty #1 who gave wrong info upon declining representation. Atty #2 (who client consulted after atty #1) not liable even though he didnt correct atty #1s mistake because he gave no info & thus, did not establish ACR--so no duty. (4) Damages. Difference b/w what client would have gotten had atty acted reasonably, & what client actually received. Generally, no punitive damages & no recovery of atty fees. When malpractice deprives client of c/a: Damages = what client would have gotten if c/a preserved. Proof of damages = proof client would have won suit. In criminal case, must prove innocence in fact; acquittal not enough. Ang. Preponderance standard for client to establish innocence. PROBLEM: attys job isnt limited to getting client acquitted-- atty is there to protect clients rights & to make sure that client receives fair treatment, etc., esp. re: sentencing. Client might be guilty but not deserve the harshest sentence, etc.
Who may sue: Clients? YES. Intended beneficiaries of Ks/wills? usually YES. Majority rule: YES. If attys duty is exclusively to dead client, atty exempt from any
liability for conduct in creating & executing wills. Must consider the foreseeability of harm-- & who will experience the injury---in a will situation, its obvious that the beneficiaries will be affected. Weird TX rule: NO. Barcelo v. Elliot; duty strictly to client; since no duty to beneficiaries, negligence claim fails. People routinely promise to put people in their wills/allocate certain stuff to them, etc. but then intentionally not follow through. Hard to determine a dead persons actual intent when drafting will. Co-counsel? NO; they may not sue each other for loss of expected fees. Mazon. COI b/w client and co-counsel. E.g., In the clients best interest to settle/drop the suit, but one of the attys is responsible for just the litigation aspect, and thus wouldnt get paid (or paid as much); would pit atty interests against client. Discretionary & tactical decisions could become basis for suit Would erode public confidence in the legal system Co-counsel should back each other up; dont want to create atmosphere of distrust b/w them
COI. Atty conduct so bad that it was as if client had no atty at all.
Policy rationales:
Fear of flood of litigation. Hindsight bias. Defer to atty creativity.
Goodman. Apply Strickland by assessing the totality of the circumstances rather than
individual factors; consider attys deficiencies in their totality.
The Accidental Client: Clients Reasonable Reliance May Be Enough to Create ACR.
ACR may be implied when:
(1) A person seeks advice or assistance from an attorney (2) Which pertains to matters w/in attys professional competence & (3) Atty expressly or impliedly agrees to give or gives the advice/assistance.
May be implied through actions of attys staff. Apparent authority. Conduct by attorney causing reasonably to believe that the staff
person has authority to enter into relationship on behalf of attorney. DeVaux. Secy had apparent authority to enter ACR so secy knowledge of case imputed to atty. C told secy about case; secy told C to do some stuff (e.g. medical exam), but then secy misfiled Cs info, so atty didnt see it until after SOL ran. Held that secs actions were demonstrative of actual or apparent authority to enter ACR, so secy knowledge of Cs request was imputed to the atty, & atty did nothing to negate Cs detrimental reliance on the ACR C believed had been created.
(c)(2) If the reporting up doesn't fix the problem, there is an exception to confidentiality to the
extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. Note: permissive; may inform outside organization, but not required to do so.
Defaulting on duty can result in contempt of court; once pending in court, judge's 8
Resisting Termination.
Note! Courts differ on whether to allow c/a for retaliatory discharge of attorney.
But see dissent-- majority's decision "simply ignores reality"-- attorney threaded with losing his job for doing the "right thing" doesn't have much incentive to blow whistle; must also consider threat of stigma of being a discharged whistle-blower in-house counsel.
C/a exists where atty discharged insisting firm comply with PR-reporting rules. 1.2(c). a lawyer can limit the scope of representation if reasonable and client gives informed
consent. See Comment 6 & 7. The client may prefer this arrangement because it reduces costs etc Comment 6: lawyers can exclude actions the client thinks are too costly or the lawyer things is repugnant or imprudent. Wieder v. Skala (NY 1992) (131). "Insisting that as an associate ... must act unethically and in violation of one of the primary professional rules amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship."
Allocating Decision-Making Authority. Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
(a) Client decides objectives of representation whether to settle in criminal cases: whether to enter plea whether to waive jury trial whether client will testify (b) Representation endorsement of client's views (c) Attorney may limit scope of representation if reasonable under the circumstances & client
gives informed consent.
(d) Atty shall not counsel a counsel to engage or assist a client in conduct that atty knows is
criminal or fraudulent. But, attorney may Discuss legal consequences of course of conduct Assist a client in determining validity, scope, meaning, or application of the law. Cmt. [9]. There is a crititican distinction b/w presenting an analysis of legal aspects of questionable conduct & recommending the means by which a crime/fraud might be committed w/ impunity. Cmt. [10]. May not continue assisting a client in conduct the atty originally thought was legal but then learns is criminal/fraudulent; atty must withdraw from the representation of the client in the matter. In some cases, withdrawal alone insufficient; atty might also have to give notice of the fact of withdrawal & to disaffirm any opinion, document, affirmation, etc. See Rule 4.1. Cmt. [12]. Applies whehter or not the victimized/defrauded party is party to the actual transaction. Cmt [2]. When disagreements about the means to accomplish clients objectives: Clients normally defer to attys judgment Attys normally defer to clients re: expenses & concern for 3d parties B/c conflicts b/w attys & clients widely vary, Rule 1.2 doesnt prescribe how to resolve; should consult other laws if applicable Atty should consult w/ client & try to reach a mutually acceptable resolution-- but if atty has a fundamental disagreement w/ client, atty may withdraw, as per Rule 1.16(b) (4). client may discharge atty, as per Rule 1.16(a)(3).
Balancing.
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Models of the Relationship Empowered & educated client. Client more likely to be in primary control. Disempowered & intimidated client. Client more likely to defer to atty. Client-centered approach.
Focus solely on clients needs & interests. Client must be fully informed & collaboratively involved in strategic decision-making. Client should be the ultimate decision maker re: means & ends. Encourages lawyer neutrality--belief that if atty shares views w/ client, client will feel compelled to defer to atty. Justice-centered approach. Atty's role to advance broader concerns of justice--not just the client's desires. More active role for atty; attys dont just follow clients lead. Atty should consider other people affected by decisions & decide based on publics best interest.
Criminal Cases
Atty has no duty to raise all legal arguments that client suggests. Attys job is to whittle down arguments & argue the best ones; need not bring forth every colorable client b/c atty has a superior ability to examine the record, research the law, and decide how best to present the case. Jones v. Barnes. Dissent: Atty is supposed to assist the client, not dictate how to present the clients case. Note: In this case, client had appointed counsel; court basically saying if you have appointed counsel, you have to just go along w/ atty as opposed to people who can afford to pay for an atty, and thus can fire an atty they dont like.
Conservator: has financial control and some other control over the disabled person Guardian: has complete control over the disabled person, the guardian acts on behalf of their ward The Court will try to use the least restrictive role while also ensuring the disabled person is represented/taken care of properly Whether to make mental-state defense is not w/in clients exclusive control. Kaczynski. K argued he was coerced into pleading guilty by attys insistence on a mentalstate defense. Held that giving K the choice of (1) representing himself or (2) deferring to counsel was unconstitutional. Court held that the choice of whether to present this sort of evidence is not like the decisions exclusively reserved to the client in Rule 1.2. Request to self-represent was untimely & in bad faith; K had declined before; court said now it was just to delay trial. Dissent: Court found bad faith b/c that was the only way to keep K from turning the case into a circus & almost certainly being executed, given that K had been found mentally competent.
Assn 10-12; pgs. 168-227. Rules: 1.6, 1.8(b), 1.9(c), 1.18 (b), 4.1(b).
Policy.
Having clear confidentiality rules makes client more trusting. Clients more likely to tell full story. Atty advice & representation improve. System functions better.
Permissive disclosure adverse to client: Rule 1.6(b) May reveal, to extent atty believes is reasonably necessary: 12
(1) to prevent reasonably certain death or substantial bodily harm Cmt. [6]. Harm is reasonably certain to occur if it will be suffered imminently or if
there is a present & substantial threat that a person will suffer such harm @ a later date if atty fails to take action necessary to eliminate the threat.
Clients Crime or Fraud in Which Client is Using or Has Used Attys Services.
(2) to prevent client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in furtherance of which client has used/is using attys services. (3) to prevent/mitigate/rectify what could have been prevented in (2). Cmt. [8]. Does NOT apply if the atty has been hired after the client committed the crime or fraud. Lawyer Protection.
(4) to secure legal advice about attys compliance w/ Rules (5) to establish:
a claim or defense for the atty in a dispute with the client a defense to a criminal charge or a civil claim against the atty based on client conduct or to respond to allegations in a proceeding re: the representation Meyerhofer. Atty allowed to reveal confidential info after being named as a D who willfully violated securities laws. (6) to comply w/ other law or a court order.
Other rules.
Rule 1.8(b). Using current clients info. Atty shall not use info re: representation unless:
client gives informed consent disclosure otherwise permitted or reqd. Rule 1.9(c). Using former clients info. After representation terminated, atty shall not: (1) use info re: representation to the disadvantage of the former client unless: Rules permit or require Information has become generally known. (2) reveal info except as rules permit or require. Rule 1.13/Sarbox. Entity client reporting up/out. Rule 1.18(b). Using prospective clients info. Only as permitted under R.1.9(c).
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Rule 4.1(b). Necessary disclosure. Shall not knowingly fail to disclose a material fact when
disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure prohibited by R. 1.6. Privilege is narrowly construed. Upholding the privilege subverts the quest for truth. Communications protected by the A-C privilege are a small subset of the communications made confidential under Rule 1.6.
Attorney-Client Privilege.
Corporate privilege:
For many years A/C privilege only applied to corporations attorney and high level employees After Upjohn v. U.S. in federal cases lawyers can speak to lower level employees and still be covered by A/C privilege if they are collecting information for legal purposes Subject matter test: (affirmed by SCOTUS in Upjohn) Privilege should depend on the subject matter of the communication, not on who was doing the communicating Control Group Test: (still used in some states) limits the privilege to communications from persons in the organization who have authority to mold organizational policy or to take action in accordance with the lawyers advice.
Work product doctrine. Protects documents/other tangible items that atty prepares in anticipation of litigation
from discovery in retrial civil proceedings. But work-product doctrine is not absolute Core work product: work product that memorializes the lawyers strategy, notes and thoughts, this gets stronger protections Ordinary work product: anything written not the lawyers thought. Note: doc can be work product & protected by privilege. Upjohn.
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But if client does not explicitly waive, atty has a duty to claim. 1.6 cmt 13 Atty can inadvertently waive, if actual or apparent authority to act on bhealf of the client. Waiver of the Privilege. If statements made in front of 3rd parties
If questions are asked and attorney doesnt object A/C waived If information is revealed to 3rd parties (even if not there at the time conversation took place) ****Whether A/C applies is based on the clients subjective intent.**** Voluntary disclosure/consent to disclosure. Lynch v. Hamrick. Lynch claimed privilege but had previously consented to disclosure during earlier testimony @ trial. Majority rule: No selective waiver; cannot waive prigilege for disclosure to govt. agencies while retaining privilege for ther purposes. Qwest.
Testamentary
Implicit waiver of privilege if disclosure would further testamentary intent.
Crime/Fraud
Client who seeks legal advice to further a continuing or future crime waives the privilege. Based on clients intent & knowledge, not attys. Only applies to affected or relevant communications.
OF
(4) CONFLICTS
OF
INTEREST.
CONCURRENT CONFLICTS
INTEREST
(1) the representation of one client will be directly adverse to another OR (2) there is a significant risk that the representation of 1 clients will be materially
limited by the attys responsibilities to another client or former client, or a personal interest of the attorney.
Cannot favor one client over another. Cmt [8]. Material limitation. Consider the likelihood of a difference of interest & if yes, if it
will materially interfere w/ lawyers independent professional judgement in considering options that should be pursued on behalf of client.
Cmts. [4],[5]. Conflict arising during representation. If conflict arises during representation,
atty must w/draw unless consent obtained under Rule 1.7(b).
Is the conflict consentable? (b) May represent despite COI if: (1) the atty reasonably believes s/he will be able to provide competent and diligent
representation to each affected client Note: Really an OBJECTIVE standard; would a REASONABLE atty reasonably believe? Dont want to do anything where a REASONABLE atty would think a conflict likely to happen-- dont want to put yourself into a situation where reasonable atty might think thered be a COI.
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E.g., atty of the day program; material limitation b/c attys incentive is to get D to
plead guilty, since atty wouldnt get paid otherwise. Judged from an objective std-would expect a random atty to be influenced by financial incentive, thus not reasonable to believe atty could provide C&D representation. Doesnt matter if particular atty is super honest
(2) the representation not prohibited by law (3) not related to claim where clients are directly against each other in same
litigation/proceeding E.g. zero-sum gains of co-Ds or Ps never consentable--can never negotiate price b/w seller & buyer-- one party wins only if other party loses.
Informed consent. Cmt. [18]. Affected client should be made aware of the relevant circumstances and of the
material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of the client.
Atty must do more than simply warn clients. Clauss. Atty represented debtor & creditor.
Letter to clients asked only for them to waive any conflict w/o discussing any specifics. Aggravating factor = atty recovered $ for debtor in other ongoing matters, but lender did not get any. Lic. suspended.
Atty must explain how COI could harm clients. Unnamed Atty v. KY Bar Assn. Atty for H
& W to investigate death of Ws ex. Atty mentioned possible COI but not that any info he found would be freely available to both clients. Atty found info implicating 1 of them and had to w/draw. Held that attys explanation of the conflict was inadequate.
Cmt. [20]. Must discuss risks, possible advantages, reasonably available alternatives.
Writing meant to underscore seriousness of consenting to a conflict.
Cmt. [21]. Client may revoke consent. Cmt. [22]. Consent to future conflicts? Consent to future conflicts may be void, depending
on factors including (1) the general or specific nature of the consent and (2) the sophistication of the client.
See also Rule 1.0(e) & cmts. [6], [7]. Screening for conflicts. Cmt [3].
Lawyer should adopt reasonable procedures, as appropriate for the type & size of firm, to determine both in litigation and non-litigation matters the persons & issues involved. Ignorance caused by failure to institute these procedures is not an excuse for violating this rule.
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arrangement does not compromise attys duty of loyalty or independent judgment to the client e.g. payer tells atty shell pay a bonus if atty accomplishes X-- atty has financial incentive to comply w/ payers interests which may not align w/ clients. If atty feels that accepting payment from a particular source presents a significant risk that attys representation of client wil be materially limited by attys own interest in accommodating payer or b/c of attys responsibilities to the co-client payer, must determine if consentable under (b).
Cuyler v. Sullivan. In trial of 1, atty rested case without presenting any evidence, possibly
in part because this would have exposed witnesses for 2 and 3, whom atty was also representing. A COI is not cured by another atty in a firm conducting the cross examination of another client because assumption is that attys in a firm share info.
Rule 1.7, cmt. [23]. The potential for conflict of interest in representing multiple defendants in
a criminal case is so grave that ordinarily a lawyer should decline to represent 1 codefendant.
(2) client is advised in writing of the benefit of seeking independent counsel, & is given a
reasonable opportunity to do so [see Cmt. [2] re: stuff to tell client]
(3) client gives informed consent, in writing Cmt. [1]. Policy = In certain situations, attys legal background & b/c of power structure of A-C
relationship, atty would have an unfair advantage over the client. Applies: Even when the transaction is not closely related to the representation. To attys selling goods/services related to practice of law, e.g. title insurance or investment services. To attys buying property from estates they represent. Does not apply to:
Ordinary fee arrangements governed by R. 1.5. Standard commercial transactions b/w atty and client for products/services the client
generally markets to others. Policy: In such transactions, atty has no advantage.
Does not prohibit uses of info that do not disadvantage the client.
E.g. Atty who learns a govt. agencys interpretation of trade legislation during the representation of 1 client may use that info to benefit other clients.
But does prohibit disadvantageous use of client info, unless client gives informed consent.
Financial Assistance
(e) atty cant provide financial assistance for current/pending proceedings, except may
advance court costs & other litigation expenses when:
(1) repayment contingent upon outcome or (2) representing an indigent client. Cmt. [10]. Policy: Otherwise, would encourage clients to pursue lawsuits they wouldnt
otherwise bring, and b/c it would give the atty too much of a financial stake in the litigation.
(1) The client gives informed consent (2) There is no interference with the lawyers independence of professional judgment or with
the client-lawyer relationship; and
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(3) info relating to representation of a client is protected as required by Rule 1.6 See also Rule 1.7, Cmt. [13].
Cmt. [2]. Matter. Question of degree- when lawyer has been directly involved in a specific transaction, subsequent
representation of other client w/ materially adverse interests in that transaction is clearly prohibited. lawyer who recurrently handled a particular type of problem for a former client can later represent someone adverse to the former client, if it is for a problem factually distinct from what you did for old guy.
Cmt. [3]. Substantially related matter. if they involve the same transaction or legal
dispute or if there is a substantial risk that confidential factual information obtained in the prior representation would materially advance the clients position in the subsequent matter. Time and changes in the law are things to consider when determining if it is a substantially related matter. Must always consider the relatedness of seemingly unrelated representation-- Is there any confidential info that might normally be considered that would be relevant to both parties? Not an actual knowledge standard-- it doesnt matter if relevant info/etc. ACTUALLY known, etc.-- its just if this is the kind of case where a confict via substantially related matter would likely occur. E.g. Divorce case on heels of business litigation; while might seem different at first, substantial issue arises b/c in any divorce case youd expect atty to examine spouses financial profile, which would include health of business. Santacroce. While atty represented gf in her business affairs, etc., representation still objectively related to will matter-- gf wants to claim that she gave up her sources of income, etc. in reliance on rich guy supporting her, including after death-- but atty might have info that her business was failing regardless, or that she made a lot of $ from selling the business, etc.
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(b) unless former client gives written informed consent, may not knowingly represent a person
in the same or substantially related matter in which lawyers former firm had previously represented a client
(1) whose interests are materially adverse to the person and (2) about whom the lawyer acquired info protected by Rules 1.6 and 1.9(c) that is
material to the matter;
(c) a lawyer who has formerly represented a client in a manner OR whose present or former
firm has formerly represented a client in a matter shall not thereafter
(1) use info re: representation to the disadvantage of the former client, except as Rules permit or require or when info has become generally known or (2) reveal info re: representation except as Rules permit or require w/ respect to a client.
***NOTE: Under MPRC, NO SCREEInING for this rule-- only for Rule 1.11. But a couple of states including OH do allow for screening of former clients. All conflicts arising from prior representation are consentable. Need only informed consent from former client--not current. Why more permissive? Doing otherwise would overburden attys ability to act as counsel and find new clients. Former clients interests already served; directly and currently competing interests not at stake.
Ongoing Attorney-Client Relationships: Existence of relationship largely dependent upon clients reasonable but subjective understanding.
Oxford Systems. C1 had reasonable belief of ongoing A-C relationship w/ atty b/c it had 13-yr relationship w/ A, C1 exclusively used A for local matters, & A worked on a case for C w/in past year. Thus, A disqualified from representing C2, who posed a COI to A-C1 relationship.
(b) Even if no relationship created, no use or revealing info except as permitted under Rule 1.9. (c) If prospective client gives atty info that could be significantly harmful to a current client in
the same or substantially related matter, must stop representing current client except under (d). Disqualification imputed to attys firm except as provided in (d).
(d) Representation OK if: (1) both affected parties give written informed consent
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(2) atty who received info took reasonable measures to avoid exposure to more
disqualifying info than was reasonably necessary to determine whether to represent the prospective client
and (i) disqualified atty is timely screened & gets no $$ from representation (ii) written notice promptly given to prospective client. Cmt. [2]. Not everyone who communicates info to a lawyer is protected this Rule. Someone
who communicates info unilaterally to atty, w/o any reasonable expectation that the atty is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of (a).
Cmt. [5]. A lawyer may condition conversations with a prospective client on the persons
informed consent that no info disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. But must get informed consent.
(1) the prohibition is based on a personal interest of the prohibited atty, and no significant
risk of materially limiting the representation.
and (2) prohibition based on Rule 1.9(a) or (b) and arises out of disqualified attys
association w/ prior firm from matter
and (i) disqualified atty is timely screened from any participation in matter and gets no $ (ii) written notice to any affected former client [w/ relevant info about implications, etc.-see rule for reqts.]
Note: (b)(2) is NEW. Added b/c: economy sucks & lots of mergers in past 10 years Cmt. [4]. Doesnt apply if conflict is due to a nonlawyer (e.g. paralegal, secretary), nor if
due to stuff before atty became an atty (e.g. as a law school intern) but these people should still be screened.
See also Watson, supra. Under 1.10(a), doesnt matter who did the cross exam. (b) When atty leaves firm, old firm may represent a person w/ interests materially adverse to
those of a client represented by the formerly associated atty and not currently represented by the firm, unless:
(1) matter is same or substantially related to that in which the formerly associated atty
represented the client
AND (2) remaining lawyers have confidential info, material to the matter. (c) Disqualification may be waived by client as under Rule 1.7. (d) For former/current govt. attys--> Rule 1.11.
Rule 1.10; screening. The firm can still be hired/accept case/client, but atty must be disqualified, have no part in the case, & accept no part of the fee. #3. Atty did work on case, moves to new firm. What happens @ old firm? Conflict leaves the firm ONLY IF everyone who ever worked on the case leaves the firm.
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[1]. Expenses charged to client must also be reasonable; should reasonably reflect costs
incurred by atty.
Impermissible fees.
True retainer not payment for services advance fee to secure services compensation for loss of oppty to take other clients Special retainer = advance fees to be drawn from as fees are earned, expenses incurred, etc. most common type Cluck. Atty took retainer from client; agreement stated hourly fees would be billed against it. When client discharged atty, atty refused to return balance. Atty committed professional misconduct b/c he took another retainer after already being retained & before first had been exhausted he deposited fees directly into his operating acct A fee is not earned simply b/c it is designated as nonrefundable
Fiduciary Obligations: Taking Care of Other Peoples Money Rule 1.15. Safekeeping Property.
(a) Clients & 3d persons property must be kept separately.
Funds must be: kept in separate acct earmarked maintained in state where attys office is (or, w/ consent, somewhere else) Other property (not $$) must be IDd & appropriately safeguarded. Complete records must be kept & retained for 5 yrs [1]. Some situations where atty must keep different clients funds separate; e.g. when administering estate $ or similar fiduciary role. (b) Atty may put own funds in client trust acct solely to pay bank svc charges
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Trust Accounts
Pooled Account Includes IOLTA accts nominal interest, short term, etc. interest pays for legal services for indigent using clients interest like that is NOT a taking-- client wouldnt be able to claim/use the interest, so client doesnt experience an loss, & thus no compensation reqd; benefit to 3dp loss to client. Brown v. Legal Found of Wash (SCOTUS). Separate Accounts
(6)DUTIES
TO THE
COURT, PROFESSION,
AND
PUBLIC.
Analyzing Potential Rule Violations. Carefully parse the text of the rule and comments.-->See 3.3(a)(1). what does "material" apply to? Understand that courts can broadly (or narrowly) interpret rules for policy reasons 3.3(a)(3). says "offer evidence," but courts interpreted it to also apply to pretrial activities. Comment [1] now specifies that it also applies to depositions. Understand court authority beyond the rules.-->E.g. Sotomayor contempt hearing; disqualification not limited to conflict rules. Be aware of "catchall" rules--->E.g., Rule 8.4
Rule3.3. CandorTwdtheTribunal.
Bright-line rule. [2]. Attys have duties "as officers of the court to avoid conduct that undermines the integrity of the adjudicative process."
Before the Client Testifies: The Duty to Remonstrate. (a). Atty shall not knowingly: Cant lie to/mislead court. (1) make false statement of fact/law to tribunal OR fail to
correct a false statement of material fact/law atty previously made to tribunal
Duty to disclose adverse legal authority. (2) fail to disclose adverse legal authority to
the tribunal controlling, when other side doesn't
(3) offer evidence it knows is false <--Ex Ante if atty, attys client, or attys witness offers material evidence that atty later learns
is false, atty must take reasonable remedial measures, including disclosure to tribunal.
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atty may refuse to offer evidence other than a criminal Ds testimony, that atty
reasonably believes is false. See Midgett, infra. [1] Also applies to depositions. Note: courts vary in interpreting offer evidence; may apply broadly or narrowly. [9]. (a)(3) only prohibits atty from offering evidence atty KNOWS is false, and PERMITS atty to refuse to offer testimony/etc that atty REASONABLY believes is false. Generally, atty probably should err on the side in caution. BUT. In CRIMINAL DEFENSE-- looser standard. In criminal defense, unless atty KNOWS testimony will be false, atty must honor clients decision to testify
Deciding to Offer Testimony. (b) If atty, representing a client in adjudication, knows someone intends to engage, or is
engaging, or has engaged, in criminal or fraudulent conduct related to the proceeding, atty must take reasonable remedial measures, including, if necessary, disclosure to tribunal. [6]. Atty should persuade client not to falsely testify [8]. Atty should resolve all doubts in clients favor, but cannot ignore obvious falsehood. Note: Just because a statement or evidence is inconsistent or contradictory to other evidence, does not mean it has to be false. When refusal is justified. Nix v. Whiteside (1986). When refusal is not justified. Private conjecture re: seemingly far fetched story uncorroborated by other evidence & testimony likely insufficient to prevent client testimony. Midgett. Client claimed a 3d person committed crime while he was in a drugged-sleep in the back of van, but atty didnt believe him. Atty refused to permit client to testify re: mystery man; atty sought to w/draw but court gave client option of using atty, or going pro se; client chose to stick with atty, didnt testify, & was convicted. Held that even though the other evidence/testimony didnt support clients story, attys private conjectures werent enough; client was consistent w/ his claim about a 3d person.
After the Client Testifies: The Duty to Take 'Reasonable Remedial Measures" (c). Duties in 3.3(a) and (b) continue to the conclusion of the proceeding. <-- Post hoc ***[10]. If false testimony comes from attys client, atty should:
first, approach client remonstrate confidentially w/ client advise client of attys duty of candor seek client cooperation w/ respect to the w/drawal or correction of false statements/evidence. if that fails.... withdraw from representation if thats not permitted or wont undo the harm, atty must disclose to the tribunal whats reasonably necessary to remedy the situation--- even if doing so reqs atty to reveal info otherwise protected by Rule 1.6!!!!
Perjury trilemma.
3 competing ethical obligations Competence; to seek the clients trust and to find out everything the client knows about the case. Confidentiality; to keep their clients confidences.
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Candor; to act with candor, to refrain from presenting evidence known to be false and
(sometimes) to disclose clients frauds. [11]. Disclosing clients false testimony (etc.) really sucks for client-- breaches trust, cause client to lose, &/or get client convicted of perjury. BUT- the alternative-- atty participate in deceiving the court-- which is worse. NOTE: A lot of attys solve this trilemma by telling client up front not to disclose everything. But, remaining willfully blind good!!!!
Do not assist in false testimony-- no coaching. (b) Cannot falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law. (f) Cannot request a person other than a client to refrain from voluntarily giving relevant info to another party unless (1) the person is a relative or an employee or other agent of a client, and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such info. But, its okay to tell client not to voluntarily speak to anyone about the case, so long as it doesnt cause harm. Its ok to rehearse testimony, tell witness the legal effects of doing xyz, etc. In The Practice video clip, attys should have told the client the legal effects of lying.
No personal opinion/knowledge-- no vouching. (e) Cannot, in trial, allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused E.g., if Nancy Grace was atty in Casey Anthony case, she would have violated this rule. E.g., cant say, Ive been working with Client 20 yrs; Ive always known him to be kind & honest.
Do not mislead the court! (c) Cannot knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party Wilka. Torn off drug test results. Sotomayer. Had a guy who looked like client testify at traffic proceeding. [C]onduct which is calculated to embarrass, hinder or obstruct a court . . . or derogate from its authority or
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dignity, thereby bringing the administration of law into disrepute. Prof. doesnt think this was an ethical violation.
Rule7.1. Communicationconcerningalawyer'sservices.
No false or misleading communications about lawyer or lawyer's services. Communication = false or misleading if it contains a material misrepresentation of law or fact; or omits a fact necessary to make statement whole not materially misleading. [2]. Misleading communication = omits a fact necessary to make statement whole; a truthful statement could also be misleading. TEST: Would statement lead a reasonable person to have an unrealistic expectation? [1]. Covers all communications re: lawyer's services, including ads permitted by 7.2; whatever means are used to make known a lawyer's srvcs, statements about srvcs must be truthful. [3]. Re: advertising-- talking about past outcomes may be misleading; esp. misleading to ensure similar outcomes; may be misleading to compare to other attys' services Past client testimonials w/ $amts$ on LinkedIn? NO-- if the amts not representative of attys typical outcomes. OK-- if atty posted a clear disclaimer that results arent typical. [Even though other people are writing the comments, atty has control over his Linkedin page; could delete them.]
Rule7.2. Advertising.
(a) may advertise via written, recorded or electronic communication, including public media. (b) $ for recommendation prohibited, but
OK to pay reasonable ad costs OK to pay usual charges for a qualified lawyer referral service OK to have a referral agreement w/ an atty or other kind of professional, as long as clients know about the agreement, and as long as its not exclusive. (c) Any communication made shall include the name and office address of 1 lawyer or law firm responsible for its content.
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[1]. the need to get info out and make legal services widely available trumps the need of the
legal profession to be bound to tradition. [3]. question of effectiveness and taste in advertising are matters of speculation and subjective judgment.
Rule7.3. Directcontactwithprospectiveclients.
(a) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit
professional employment from a prospective client when a significant motive is the lawyers pecuniary gain UNLESS the person contacted is: (1) a lawyer OR (2) has a family, close personal, or prior professional relationship with the lawyer (the rule is there because of concern of abuse inherent in these types of meetings. See [1]. (b) The lawyer shall not solicit employment from a client (in any way) if: (1) The prospective client has made known it doesnt want to be solicited by the lawyer (2) the solicitation involves coercion, duress or harassment (c) Written/recorded or electronic communication soliciting employment shall include the words Advertising Material on the outside on the envelope, at the beginning and end of a recorded/electronic communication (d) BUT a lawyer may participate with a prepaid or group legal service plan no owned or direct by the lawyer that solicits from persons who are not known to need legal services E.g. Could atty send FB message to friends [HS acquaintances from 20 yrs ago], seeking to offer legal services? Close, personal relationship w/ these people? Yes.---> YES. No. Message labeled as ad material? Yes. ---> YES. No. ---> NO.
Rule7.4. Communicationoffieldsofpracticeandspecialization.
(a) A lawyer may communicate the fact that s/he does or does not practice in particular fields
of law (b) a lawyer who has passed the patent bar may use the designation Patent Attorney (c) A lawyer engaged in admiralty law may use the designation Admiralty or proctor in Admiralty (d) A lawyer shall not state that s/he is certified as a specialist unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by the appropriate state/ or accredited by the ABA AND (2) the name of the certifying organization is clearly identified in the communication
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(1) delivery of legal services at no fee/substantially reduced fees; groups seking protections
of civil rts or the same organizations above, where paying standard legal fees would replete the org's economic resources (2) substantially reduced fees to persons of ltd means; or (3) participation in activities for improving the law, the legal system, or the profession. [9]. If infeasible/atty doesnt have time to donate services: Can donate $ to Legal Aid-type places instead. Should be roughly = to value of services. Can rely on other attys in firm to do extra hours. (E.g., have 1st year associates do all of the firms pro bono projects.) [10]. Should also contrib $ to orgs that provide legal services to people of ltd means in addn to pro bono work/ $ when pro bono service infeasible.
Rule8.3. DutytoReportMisconduct.
(a) Must report to appropriate authority; applies to: a lawyer who knows a lawyer has committed a violation of the rules that raises a substantial Q as to that lawyers honesty, trustworthiness, or fitness. (b) Same duty to report if atty knows a judge has done the above. (c). doesnt req an atty to disclose confidential info under R. 1.6. [2]. atty should encourage client to disclose. [5]. atty assisting an atty in an approved assistance program is not reqd to report. Not every violation creates a substantial question, so not every violation must be
disclosed...the knowledge that reporting atty has must be more than a mere suspicion that misconduct has occurred.
Rule8.4. Misconduct.
It is professional misconduct to: (a) Attempt to or violate the Rules Professional Conduct or knowingly assist or induce another to do so or do so through the acts of another [1]. does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. (b) Commit a criminal act that reflects adversely on a lawyers fitness as a lawyer [2]. Failing to file an income tax report of fraud meets this requirement But adultery or other moral laws do not count (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation Bosse. Atty, acting as real-estate agent, uploaded a real-estate listing for a client and signed his name to an exclusive listing agreement, knowing he lacked consent to do so. Despite apparent lack of harm to any party, this single episode of deceit was enough to merit a two-year suspension. (d) Engage in conduct prejudicial to the administration of justice [3]. if you discriminate you have engaged in conduct prejudicial to the administration of justice (e) to bribe or say that you can bribe (ability to influence improperly) a government official e.g. not good to say at a job interview, you should hire me b/c I went to HS w/ the judge. (f) knowingly assist a judge that is in violation of the judicial rules of professional conduct. [2]. although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice doesnt have to actually be related to law practice; not OK to embezzle $ from church, even if not church atty, etc. [5]. requirements for lawyers in special roles. A lawyers abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is trust of lawyers acting as trustee,
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executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
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