Legal Profession OutlineI. Course IntroductionA. Bar Admission and Moral Character and Fitness

1. MR 8.1: an applicant for admission to the bar shall not: a. knowingly make a false statement of material fact or b. fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter2. Standard for Moral Character and Fitness Review: they will not admit someone who has- 1. a criminal act that reflects adversely on honesty or trustworthiness, 2. acts involving dishonesty, fraud, deceit, misrepresentation or conduct prejudicial to the administration of justice, 3. incorporates standard form 8.43. Gahan: claimed bankruptcy and defaulted on student loans, was denied admission to Minnesota bar. Holding: flagrant disregard shows lack of character.

II. Regulation of LawyersA. Ethics Rules and codes: adopted by the ABA

1. rules (made in response to criticism to the code’s focus on litigation, and its 3 tiered structure of canons, ethical considerations, and disciplinary rules: adopted in some form by over 40 states, what the MPRE tests 2. diff j accord the codes varying degrees of authority 3. Rules- Belief = actual belief, but may be inferred, knowledge = actual knowledge, but may be inferred

B. Lawyer Discipline Includes: disbarment, suspension, and censure Violation of mandatory requirement of the rules warrants discipline and conduct

forbidden by other laws 1. MR 8.1: an applicant for admission to the bar shall not:

a. knowingly make a false statement of material fact or b. fail to disclose a fact necessary to correct a misapprehension known by the attny to have arisen

i. extends to person seeking admission and to lawyers ii. if a person makes a material false statement in connection with application for admission, it may be basis for subsequent disciplinary action if the person is admittediii. requires affirmative clarification of any misunderstanding on the part of the admission/disciplinary authority of which the person involved becomes aware iv. requires correction of any prior misstatement in the matter that the aapplicant/lawyer may have made v. for questions that might affect you- you may: 1. answer truthfully, 2. challenge the q on const’l grounds (not likely you will succeed), 3. deny

2. MR 8.3: requires lawyers to report the misconduct of others a. a lawyer who 1. knows that another lawyer has committed a violation that raises a 2. substantial q as to that lawyer’s 3.honesty, trustworthiness or fitness as a lawyer in other areas, should inform the appropriate professional authority

i. knows- actual knowledge, can be inferredii. substantial- material matter of clear and weighty importance, refers to the seriousness, not the amt of evidence available

iii. basically, a lawyer has an affirmative duty/obligation to report another lawyer’s serious violation, exception: when the info is confidential

3. MR 8.4: gives 6 categories of conduct that result in discipline: rules violations, dishonesty, conduct prejudicial to justice, implying undue influence, assisting judge’s violation; it is professional misconduct for a lawyer to:

a. attempt to violate the rules of professional conduct, knowingly assist/induce another to do so, or do so through the acts of anotherb. to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyerc. to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,d. engage in conduct that is prejudicial to the administration of justice, e. state/imply an ability to influence improperly a gov agency or official to achieve results by means that violate the rules or other lawf. knowingly assist a judge or judicial officer in conduct that is a violation of the rule or other law

i. actions that demonstrate lawyer should not be entrusted w/ the confidence usually placed in lawyers

4. MR 5.1- can be disciplined for the conduct of others a. a partner shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the rules b. a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules c. a lawyer is responsible for another lawyer’s violation of the rules if: 1. the lawyer orders or ratifies the conduct OR 2. the lawyer has direct supervisory authority over the other lawyer and knows of the conduct but facts to take reasonable remedial action

5. MR 5.2- can be disciplined for the conduct of others a. a lawyer is bound by the rule even if the lawyer acted in the direction of another person

i. so not a defense that the lawyer was following order, unless: b. a subordinate lawyer dn violate the rules if the lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty

i. must meet the 3 req’ments: 1. subordinate lawyer, 2. orders reasonable, 3. orders relate to arguable question, an ambiguous one

6. MR 5.3: lawyer’s responsibilities to non-lawyer assistants- lawyer must exercise reasonable care to prevent his employees or associates from violating the obligation regarding client confidences or secrets, a lawyer must also make reasonable efforts to satisfy themselves that the outside service provider dn make unauthorized disclosures of client confidences or sectrets. 7. factors to be considered in determining if discipline is warranted: injury, blame, prior conduct, need to incapacitate, deterrence

Client Lawyer Relationship1. MR 1.1 Competence

a. a lawyer should provide competent representation to a client. This requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

i. can still accept representation where the requisite level of competence can be achieved by reasonable preparationii. most duties attach only after the lawyer-client rel’ship is est’d, depends on the circumstances and may be a question of fact iii. the lawyer-client rel’ship is contractual, the lawyer has special duties as a fiduciary ambiguity is resolve in favor of the client!!iv. Formation of Relationship:

1. payment is not necessary: even when the attny says I terminate my duties b/c you have not paid me, there is still a procedure to terminate employment2. acceptance of employment is not necessary: lawyer’s assent is implied unless he clearly denied 3. passage of time: factor to see if the client is being reasonable 4. ex: Westinghouse Electric v. Kerr-McGee: member of trade association found to have reasonable belief that the association’s attny rep’d them even though no payment was made and discussion not absolutely clear the burden is on the attny to make the rel’ship clear.

2. MR 1.2 Scope of Representation, objective-means distinction Decision making authority, generally: clients make major decisions, matters that

affect the merits of the case or substantially prejudice the client’s right Jones v. Barnes: counsel failed to raise points that his client urged him to on

appeal. Barnes filed writ if habeas relief. The SC denied. Holding: The accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify on his own behalf or take an appeal. However, the d dn have a const’l right to compel appt’d counsel to press nonfrivilous points requested by the client, if counsel, as a matter of professional judgment, decides not to press these points.

a. a lawyer should abide by a client’s decisions concerning the objective of representation and shall consult with the client as to the means

i. should abide by a client’s decision re: settlement. in a criminal case should aabide by client’s decision, after consultation with the attny, as to a pleato be entered, whether to waive jury trial, and whether the client will testify. ii. note: limit on clients authority, comment to 1.3: lawyer dn have to press for every advantage that might be realized, and 2.1: lawyer can exercise independent professional judgment, comment to 1.3: lawyer has professional discretion in determining the means by which a matter should be pursued

b. a lawyer shall not counsel/assist a client to engage in conduct that the lawyer knows is criminal/fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law; comments:

i. a lawyer must give honest opinion regarding the consequences of conductii. a client’s use of advice in crime/fraud dn make the lawyer a party to the action iii. a lawyer may not knowingly assist in criminal/fraudulent conduct

iv. there is a distinction b/w presenting an analysis of legal aspect of questionable conduct and recommending means by which a crime/fraud might be committed with impunity (this is prohibited)v. a lawyer is req’d to avoid furthering the purpose, by suggesting how something might be concealed vi. a lawyer may not continue to assist a client in conduct that the lawyer discover is criminal or fraudulent. - the lawyer is not permitted to reveal the client’s wrongdoing except where permitted by 1.6

3. MR 1.3 Diligence - a lawyer should act with reasonable diligence and promptness in rep’ing a client, Despite opposition, obstruction or personal inconvenience to the lawyer, and with commitment, dedication and zeal in advocacy a lawyer should act with commitment and dedication to the interests of the client and with zeal and advocacy on the client’s behalf.

i. comment: zeal is limited, lawyer is not bound to press for every advantage, lawyer has discretion to determine the means to pursue the matterii. heavy workload is not an excuse for neglect, attny is responsible to control his/her workload to handle each client adequately

4. MR 1.4 Communicationsa. a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for informationb. a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation

i. comments: should promptly inform your client about settlement offersii. avoid neglecting your client

5. MR 1.6 Confidentialitya. a lawyer shall not reveal information relating to the representation of a client unless the client consents or as authorized under sect. b.b. a lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

1. to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm2. to establish a claim/defense on behalf of the lawyer in a controversy b/w attny and client, to establish a defense to a criminal charge/civil claim against the lawyer based upon conduct in which the client was involved OR to respond to allegations concerning the attny’s representation of the client (attny doesn’t have to wait for a proceeding, client dn have to be the person making the charge, attny can respond directly to a 3rd person charging him)

Notes: “the public is better protected if full and open communication by the client is encouraged rather than prohibited.”1. the lawyer must comply with final orders of a court req’ing the attny to give info about the client 2. whether another provision of law supercedes 1.6 is a matter of interpretation, but a presumption should exist against such a supersession

3. lawyers in a firm may disclose to e/o info relating to a client unless the client has instructed that particular information be confined to specified lawyers4. duty continues after the client-lawyer rel’ship has been terminated5. if possibility of disclosure is adverse, when practical, the attny should seek to persuade the client to take suitable action. A disclosure adverse to the client’s interests should be no greater than the lawyer reasonably believes necessary to the purpose. 6. if the lawyer’s services will be used by the client in materially furthering a course of criminal/fraudulent conduct, the lawyer must withdraw 1.16- authorize the attny to file notice of withdrawal even though its issuance may be a warning that the client is up to no good (may amt to a disclosure of the client’s confidences)7. inadvertent disclosure: a lawyer should refrain from rvwing the materials, notify the sending lawyer and abide by the lawyer’s instructions

a. remedies: some crts have been unsympathetic, others may require all docs to be returnedb. avoid this problem by taking reasonable care

8. rule protects info even from a prospective client9. attny may disclose confidences to employees, but should reasonably supervise these people10. unless the client consents, the lawyer may not use a client confidence for the attny’s own advantage (or a 3rd person’s) (not applicable if the info is a matter of general knowledge)11. waiver: confidentiality may be waived. The lawyer must communicate to the client enough info to permit the client to appreciate the significance of the waiver. (in some cases waiver may be implied, i.e. necessary for negotiation)12. may use confidences as necessary to collect a fee (i.e. Nokasian, secured an attachment on the client’s property, a secret bank account, b/c of what his client had told him in confidence, proper to do this to collect his fee)13. if the attny offered material evidence and later realizes its false, the attny must take reasonable remedial measures (3.3), even if compliance requires disclosure of info otherwise protected by this rule (direct disclosure (direct disclosure to the opposing party may prove to be the only reasonable remedial measure in the client-fraud situation)

Armani: client told his attny he had additionally killed 2 young girls, tension b/w citizen’s duty to report crimes v. client-lawyer confidentiality. Lawyer later attempted to plea bargain with the information of the whereabouts of the girls’ bodies. Victim’s parent’s complaints were eventually dismissed.

o Issues: privilege dn protect info that is in furtherance of crime fraud. crucial point of when the client consults you distinction b/w past, ongoing and future crimes: client consults you just prior to the crime/fraud (not privileged) 2. your client consults you just after (privileged)

o Ask if the attny acted in furtherance of the crime/fraud Spaulding v. Zimmerman: the court set aside a prior order approving a tort

settlement for a minor b/c the d’s lawyer dn disclose what he knew of the seriousness of the p’s injury. At the time the court approved the settlement on

behalf of the minor for injuries, neither the court, minor, his counsel or dr. knew of a life-threatening condition he was suffering from that may have been from the accident. In this case, the defendant lawyer may warn the plaintiff.

Confidentiality Duty and the Attorney-Client Privilege Confidentiality duty and lawyer-client privilege is different

o Attorney client privilege: covers information communicated directly b/w client and lawyer, in confidence, for the purpose of obtaining legal advice, it applies to judicial and other proceedings in which the lawyer may be called as a witness or asked to produce evidence

This privilege may prohibit a court from compelling you to reveal confidential communications

Prevents the judge from getting the info Privilege dn apply to 3rd persons Dn cover docs/evidence unless they were created to obtain legal

advice o Confidentiality: Applies more broadly, not just to those limited situations

in which the privilege may be invoked- applies not just to info communicated by the client, but to all info relating to the representation, whatever its source.

restricts your ability to release information relating to representation of your client

covers protection of info that your client may not have said was a secret, or info you rec’d from a 3rd person

Crime-Fraud Exception: distinction b/w confidentiality rule and loss of privilege b/c of past actions1. can’t claim the privilege of communications with the attny that were in furtherance of a crime. It is not necessary for the attny to know he/she was part of a criminal/fraudulent transaction

- Have duties of confidentiality and loyalty that may inflict: - You may represent A and B and know confidential info about A that may help B- if

you reveal A’s info you are violating confidentiality (1.^) if you don’t than you may be violating your loyalty to B (1.3 diligent representation)

6. MR 1.7 CI: the general rule (a) a lawyer shall not represent a client if the representation of the client will be directly adverse to another client (duty of loyalty), UNLESS:

1. the lawyer reasonably believes the representation will not adversely affect the rel’ship with the other client AND2. each client consents after consultation

(b) (rep’ing co-d or co-p, or rep’ing parties on the same side of negotiation) a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another, UNLESS:

1. the lawyer reasonably believes the representation will not be adversely affected AND2. the client consents after consultation- this must include explanation of the implications of the common representation and the advantages of the risks

involved. (more detailed than (a)) (shall include explanation of the implications of the common representation and the advantages and risks involved)

Comments: Avoidance: An impermissible conflict of interest may exist before representation,

representation should be declined Withdraw: if a conflict emerges after representation, the lawyer should withdraw Representation of clients in unrelated matters who interests are only generally

adverse, such as competing economic enterprises, dn require consent (b): a possible conflict dn itself preclude rep, think about the likelihood that a

conflict will eventuate and if it does, whether it will materially interfere with the lawyer’s independent professional judgment, the likelihood that an actual conflict will arise is often one of proximity and degree

o i.e. attny may not represent multiple clients in negotiation who interests are fundamentally antagonistic, but can allow representation where the interests are generally aligned even though there are some differences

o Estate Planning: conflict questions may also arise in estate planning and estate admin. A lawyer may be called to prepare several wills for family members. In estate admin, the identity of the client may be unclear. 1 view: the client is the fiduciary, another: client is the estate, including its beneficiaries. The lawyer should make clear the rel’ship involved.

You cannot represent both parties if they are keeping secrets from e/o

Need to tell them that if they have secrets they want to keep from e/p, they need separate counsel.

Be careful about what you say to either one, b/c anything you say to one of the parties should technically be able to heard infront of the other

o Representing a corporation: an attny rep’ing a corp who is also a member of the board of directors should determine if the 2 roles may conflict if there is a material risk that the dual role will compromise the attny’s independence of professional judgment, the lawyer should not serve as director

should not ask for consent: when a disinterested lawyer would conclude that the client should not agree to representation, the client may not consent

a lawyer may not allow related business interests to affect the representation a lawyer may be paid from a source other than the client, if the client is informed

of that fact and consents, and it dn compromise the attny’s duty of loyalty a lawyer may represent parties having antagonistic positions on a legal question

that has arisen in different cases, unless representation of either client would be adversely effected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court

is this the same standard in 1.7b or something different? No answers, seems to say that not all positional conflicts are improper.

you may take inconsistent legal positions in different tribunals. The mere fact that your advocacy might create precedent adverse to another client in an unrelated

matter dn create a conflict. But a conflict may exist if there is significant risk that your representation of another client will be materially limited if so, consent required or you must withdraw

What about 2 lawyers in 1 firm arguing opposing legal positions in different cases? May be a credibility problem and precedent issue (the other attny may set bad precedent).

“hot potato”: rep’ing parties w/adverse interests, if the parties dn consent to the conflict, the law firm must withdraw from rep’ing both parties (attny may not sue A on behalf of B, while also rep’ing A even if in a wholly unrelated matter)

can’t normally waive confidential information, b/c usually will not know confidences in advance.

Insured v. insurer: q of who you represent. Majority of Case law: treats the insured as the client and the insurer as a 3rd party who pays for the lawyer and has certain contractual rights by agreement with the insured.

o Unless there is an express policy provision to the contrary, the insurer may settle a case despite the insured’s request that it not do so

Rationale: need to protect client confidences and to assure the attny’s loyalty. Duties apply even to conversation with prospective clients. Run the risk of being disloyal to B, but violating the confidences of A.

7. MR 1.8 CI: Prohibited Transactionsa. a lawyer shall not enter into a business transaction w/ a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

1. the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client2. the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction AND3. the client consents in writing

note: to get independent professional judgment, dn let the lawyer invest in the first place

fair and reasonable- may want to get review by an independent counsel

ex: learn a client is investing in real estate, may not, w/o the client’s consent, acquire nearby property where doing so would adversely affect the client’s plan for investment

have a duty to give legal, not business advice golden parachute agreements: likely if you are one of recipients,

should not draft your own. Fee arrangement of giving ownership, stock in the co may lead to

possible conflict what if there may be a possible conflict ? Have to tell them you are

not independent, fair and reasonable depends on there being a disadvantage or not.

b. a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by 1.6 (confidentiality) or 3.3.(candor toward the tribunal)

1. comment 1: a lawyer may not exploit information relating to the representation to the client’s disadvantage2. you may not use such information w/o consent “where doing so would adversely affect the client’s investment”

restricts you from using information related to a client for the lawyer’s own advantage (or advantage to a 3rd person) unless the client consents

using (a 1.8b prob) versus revealing (1.6) the information have a duty to be up front and not disadvantage your client, as time

goes on, there may be a client, may either have to withdraw investment or from rep’ing your client.

c. accepting gifts from clients: a lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift from a client, except where the client is related to the attny

- a lawyer may accept a gift if the transaction meets general standards of fairness (basically a reasonableness standard) - if a legal instrument is required, the client should have the detached advice of another lawyer

d. publication rights: prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation

intended to protect the client and the administration of justice (fear that publication/media rights may sway the attny’s course of action)

e. a lawyer should not give financial assistance to a client in connection with pending/contemplated litigation except that:

1. the lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter AND2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client Note: so attny can front court costs, and fees for such things like medical exams that relate directly to the lawsuit (will be used in the suit)

f. compensation from non-clients: a lawyer shall not accept compensation for representing a client from one other than the client unless:

1. the client gives informed consent2. there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship (so the fact that it is a 3rd party paying your bills, you are still able to use your independent professional judgment and there is no interference with you and your direct client) AND3. info relating to representation of a client is protected by Rule 1.6 confidentiality keep in mind 1.6 confidentiality and 1.7 conflicts of interest

can’t allow the 3rd party to interfere with the lawyer’s professional judgment

g. aggregate settlements: an attny who represents multiple clients should not participate in making an aggregate settlement of the claims UNLESS each client consents after consultation, including the disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

Note: so attny can on behalf of multiple clients, negotiate an aggregate settlement on civil claims or for guilty/nollo contendere (no contest) pleas covering multiple clients in criminal cases. BUT, each client must consent after consultation, which must include the existence and nature of all claims involved and of the participation of each person in the settlement. The attny must disclose the settlement offer to each of his clients and any one of them can reject it.

h. limiting lawyer’s malpractice liability: an attny shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.

Note: if the client is going to limit your liability, they need to have independent representation. (usually dn apply to individual clients, but corporations that have inside counsel)

i. lawyers related to e/o: a lawyer related to another lawyer (parent, child, sibling, or spouse) shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the rel’ship

keep in mind Rule 1.7b, make sure this is satisfied as well dn impute to other members of the relative’s firm

j. acquiring a proprietary interest in C’s C/A: a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of the litigation the lawyer is conducting for a client, except that a lawyer may:

1. acquire a lien (a legal interest that a creditor has in another’s property lasting until the debt it secures has been satisfied) authorized by law to secure the attny’s fee/expenses AND2. contract with a client for a reasonable contingent fee in a civil case. Ex: so an attny can take an interest in the patent as security for the payment of the fee even if he/she is the attny prosecuting a patent application. While this would constitute taking an interest in the subject matter of litigation, it is authorized under 1.8j2.

- sexual relations with clients: a lawyer should not have sexual relations with a client unless a consensual rel’ship existed when the client-lawyer rel’ship began

concerns: violating the fiduciary duty (raises qs as to whether you have unfairly exploited the trust place in you), whether you can exercise independent professional judgment.Note: before proceeding w/the client, make sure you satisfy 1.7a2, if the client is an entity, you should not have a rel’ship w/ the constituent that supervises you.

8. MR 1.9 CI: The Former Client a. if a lawyer used to represent a client in a particular matter but no longer does so, that lawyer is still disqualified from rep’ing a new client in that same/substantially related matter if that new client has interests “materially adverse” to the former client. (UNLESS the former client consents after consultation)

i. generally, loyalty ends upon termination of representation, EXCEPTION to this is confidentiality. Attny can’t use former client’s confidences against him/her. Basic idea: Can’t switch sides. ii. a lawyer could not properly seek to cancel/rescind a K on behalf of a new client for a K drafted on behalf of the former client. A lawyer who has prosecuted an accused person can’t represent the accused in a subsequent civil action against the gov concerning the same transaction. iii. competing principles: 1. the client previously rep’d by the former firm must be reasonably assured that loyalty is not compromised, 2. the rule should not be so broad as to preclude others from having a reasonable choice of counsel, 3. the rule should not unreasonably hamper layers from forming new associations. iv. ex of substantially related: TC Theatre: the court will assume that during the course of the former representation confidences were disclosed to the attny bearing on the subject matter of the representation.

a. cases have even broadened this by asserting that the presumption is irrebbutable if it “could reasonably have been said” – make the presumption irrebbutable or otherwise former client would have to reveal info that has infact happened, courts don’t want to do this

v. a lawyer who handled a type of problem for a former client is not precluded from later rep’ing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the former client. Issue: whether the lawyer was so involved in the matter that the subsequent rep. can be considered changing sides to the current matter.

b. if the lawyer was with a former law firm that rep’d a client in a matter, the lawyer may not represent a new client with interests “materially adverse” to that client of the former firm (in the same/substantially related matter), if the lawyer acquired secret info about the former client protected by 1.6 or 1.9 c. (unless the former client consents)

a. rule acknowledges that access of info is a question of fact that will consider the size of the firm, the way in which the lawyers work together. In the absence of contrary info, it should be inferred that a lawyer in fact is privy to info about clients actually served, but not about other clients. b. (b) disqualifies the lawyer only when the lawyer involved has actual knowledge of the info protected by 1.6 or 1.9b. so if a lawyer while with one firm acquires no knowledge/info relating to a particular client of the firm, and the lawyer later joins another, the lawyer/the new firm

are not disqualified from rep’ing another client in the same or a related matter even though the interests of the 2 clients conflict.

c. a lawyer who has formerly rep’d a client in a matter or whose present or former firm has formerly represented a client in a matter shall not later:

1. use or reveal information relating to the representation to the disadvantage of the former client except as these rule 1.6 or 3.3. would permit with respect to a client, or when the information has become generally known

a. prohibits you from using confidential info to disadvantage a former client by either disclosing or using it. b. info generally known: if the reason to protect the confidence is no longer applicable, that the protection is lost

1st duty of loyalty: preserve client confidences 2nd duty of loyalty: avoid subsequent representations involving positions adverse

to a former client in substantially related matters consultation under 1.9 a and b: communicate info in a way that is reasonably

sufficient to permit the client to appreciate the significance of the matter in question.

8. MR 1.8 CI: Imputed Disqualificationsa. while lawyers are assoc’d in a firm, none of them shall knowingly rep a client when any one of them practicing alone would be prohibited from doing so by 1.7, 1.8c, 1.9 or 2.2.

ex: client asks you to draft a will giving your daughter a lot of money, you can’t refer the job to your law partner, but can refer it to a former law partner. Ex: client asks you to represent her in litigation against A, but A is your spouse. You can’t represent her, but you can refer her to your law partner

b. when a lawyer has terminated an association with a firm, the firm is not prohibited from later rep’ing a person with interests materially adverse to those of a client rep’d by the formerly assoc’d lawyer and not currently rep’d by the firm, UNLESS:

1. the matter is the same/substantially related to that in which the formerly assoc’d lawyer rep’d the client AND2. any lawyer remaining in the firm has info protected by 1.6 and 1.9c that is material to the matterex: you represent D while at firm1, no one else at firm1 rep’d D or rec’d confidential info about D. You move to firm2, and take D with you. Firm1 can still represent P in P v. D. 1.10 forbids your current firm from rep’ing P (the same matter), but since no confidential info was passed, and nothing remains at firm1, there isn’t a conflict. Law firm has the burden of demonstrating that it is not the depository

of material protected client ifnromation c. a disqualification prescribed by this rule may be waived by the affected client under the conditions stated in 1.7

7. MR 1.13 The organization as a client: Your professional obligation runs to the entity, not to the individual agents

(a) a lawyer employed by an organization represents the organization acting through its duly authorized constituents

comment1: the organization cannot act except through its constituents: officers, directors, employees, shareholders, etc. comment2: when one of the constituents of an organizational client communicates with you in that person’s organizational capacity, the communication is protected by 1.6 confidentiality rule.

i. this dn mean that the constituents are your client though. You may not disclose info to such constituents unless permitted to do so under 1.6ii. your duty is to the entity, the info is protected as part of your representation to the entity iii. ie. Todd Dickie can’t give info to the athletic directors, his duty is to the entity.

(b) if a lawyer for an organization knows that an agent of the organization acting in a manner related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization and is likely to result in a substantial injury to the organization (assuming its discovered) then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. how to proceed: the attny should consider: the seriousness and consequences of the violation, the scope and nature of your representation, the responsibility of the organization and motivation of the actor, and the org’s relevant policies. Measures: shall minimize disruption of the organization and risk of revealing info to persons outside the org 1. ask for reconsideration, 2. advise that a separate legal opinion be sought to present the matter to the entity’s appropriate authority, 3. refer the matter to the higher authority in the organization

(c) If, despite the attny’s efforts, the highest authority that can act on behalf of the org insists on action, or refusal to act, that is clearly a violation of the law and is likely to result in substantial injury to the org, the lawyer may resign in accordance with rule 1.16 (d) you should explain the id. of the client when it is apparent that the organization’s interests are adverse to the those of the constituents with whom you are dealing

a. when org’s interest may be/become adverse to those of its constituents: you should advise the constituents that: you cannot represent them AND they may wish to have independent counsel

(e) a lawyer rep’ing an org may also represent any of its other constituents subject to provisions of 1.7 (if consent is req’d under 1.7, it shall be given by an appropriate official of the org other than the individual who is to be rep’d1. who does the privilege cover? 2 primary tests courts use:

i. control group test: the privilege extends only to those communications with people who are in control of the entity

a. very few will fall under being in control of the entity ii. subject matter test: whether the privilege applies is determined by the nature of the information in question, must meet 5 criteria:

1. the communication was made for purpose of securing legal advice2. communication made at direction of superior

3. the superior made the request so entity could get legal advice4. the subject matter of the communication is within the scope of the employee’s duties 5. communication is disseminated to others * this test allows more information to come under the protection of the privilege ex: Upjohn: gov could not simply subpoena the attny’s questionnaires, this info was privileged. Justified by the finding that the gov could get this information themselves.gov can still get this information w/o pinning the attny-client privilege, they can seek factual information, the SC opinion dn bar their ability to obtain factual information. (can still ask if they made illegal payments) note: elements 4 & 5 seem thrown out of the subject matter test. criticism: decision assists cover-ups, the privilege only protects disclosure of communications, not underlying facts.

Note: this rule does not replace 1.6, 1.8, 1.16, 3.3. or 4.1 (but is merely in addition to them

6. MR 1.14 Client under a disability a. when a client’s ability to make adequately considered decisions in connection with the representation is impaired (may be due to mental disability or another reason) the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer rel’shipi. comment: a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s well-being

7. MR 1.16 Declining or Terminating Representations(a) a lawyer cannot represent a client/ must withdraw if representation has commenced if : 1. representation will result in violation of the rules, 2. the lawyer’s physical/mental condition materially impairs the lawyer’s ability to represent the client OR 3. the lawyer is discharged (b) a lawyer can withdraw if it can be accomplished w/o material adverse effect on the interests of the client. Withdrawal permitted even if it causes material adverse impact on the client if: 1. the client persists on a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent, 2. the client has used the lawyer’s services to perpetuate a crime or fraud, 3. a client insists on objectives the lawyer finds repugnant/imprudent, 4. the client fails to fulfill an obligation to the lawyer and has been warned, 5. the client has made representation unreasonably difficult OR 6. other good cause for withdrawal exists(c) when ordered to do so by a tribunal, a lawyer shall continue rep. notwithstanding good cause for termination (d) upon termination a lawyer shall take steps to protect a client’s interest, such as giving reasonable notice, allowing time for employment of other counsel, surrendering papers, refunding any advancement fee.

after withdrawal the lawyer is required to refrain from making disclosure of the client’s confidences, except as provided by 1.6, i.e. may be a conflict if the court

asks why the attny is withdrawing and rule 1.6, ordinarily attny’s statement that professional considerations require termination are sufficient

o note: confidentiality rule dn prevent the attny from filing a “notice of the fact of withdrawal”

some tribunals require permission before withdrawing, if the tribunal dn grant permission, the lawyer must continue in the case even though the lawyer would otherwise have a right/duty to withdraw

wrongful discharge: attnys have brought these suits after being fired by their employers/firm for refusal to engage in unethical activity (trend favors it, be careful though not to disclose confidential info)

OPM p.239 (singer Hutner learned of problem, processed more leases, withdrew gradually and dn reveal concerns to new counsel should have got out a bit earlier, before processing the additional $60 million lease, once he understood there was no legitimate business, he should have withdrawn

a. withdrawing: there are things you can and can’t do, but you can “raise a red flag” when you are leaving. SingerHutner could have said I am withdrawing and disavowing these documents and the new attny would have gotten the hint1. figure out if local rules permit disclosure 2. Fraud (wolfam): all intentional wrongsinvolving a client acting with bad faith and intending serious harm toanother

In re Sealed Case: misconduct fundamentally inconsistent with the basics Lee v. American Airlines (lawyer’s disruptive conduct prolonged the proceedings). May be disciplined for unprofessional tactics/comments made to the opposing counsel.

premises of the adversary system 8. MR 1.18 Duties to Prospective Clients

a. a person who discussed with a lawyer the possibility of forming a client-lawyer rel’ship with respect to a matter is a prospective clientb. even when no client-lawyer rel’ship ensues, a lawyer who has had discussions with a prospective client shall not use/reveal info learned in the consultation

9 MR 2.1 Advisor, attny should exercise independent professional judgment - a lawyer should exercise independent professional judgment and render candid advice

i. comment: a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable (unpleasant) to the clientii. a lawyer may refer not only to law but to other moral, economic, social and political factors- it is okay for you to go beyond pure legal advice, and talk about moral/ethical considerations

The Lawyer as an Advocate Freedman’s Perjury Tri-lemna:

1. zealous advocate 2. candor toward tribunal 3 confidentiality - Cannot meet all 3 duties. Court concludes candor toward court before confidentiality.

May be conflict b/w you and your client: you have a dual role as both an advisor and advocate

You are partisan (supporter): you represent your client’s interest vigorously You are morally neutral: you are not morally accountable for your client’s goals

or the ends necessary to achieve them Note: restatement’s view of tape recordings: allowed if the recording dn violate

the law of relevant j, but only when compelling need exists to obtain evidence otherwise unavailable in as reliable a form, pay attn to 8.4 though (should not do anything deceitful/dishonest)

Code prohibits threats merely to obtain an advantage 1. MR 1.2 scope of representation (see above)

b. a lawyer’s representation of a client dn constitute an endorsement of the client’s views, idea that the truth emerges and rights are protected when adversaries both present their strongest argument

2. MR 1.3 Diligence (see above)3. MR 3.1 Meritorious Claims- No Frivolous Claims- but it is not necessary to substantiate facts first, you may rely on subsequent discovery to develop vital evidence

a. a lawyer shall not bring/defend a proceeding unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law the law is not always clear and is never static, account must be taken of the

law’s ambiguities and potential for change action is not frivolous merely b/c the facts have not been fully substantiated.

action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail

the action IS frivolous if the client desire to have the action taken primarily for the purpose of harassing or maliciously injuring a person OR if the lawyer is unable to make a good faith argument either on the merits or for change in existing law

the duty to refrain from asserting frivolous claims includes the duty to refrain from pursuing dilatory (tending to cause delay) tactics

4. MR 3.2 Expedite Litigation (but consistent with client’s interests)- you should not delay unreasonably

a. a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client delay should not be indulged merely for the convenience of the advocates, or for

the purpose of frustrating an opposing party the question is whether a competent lawyer acting in good faith would regard

the course of action as having some substantial purpose other than delay realizing financial or other benefit from otherwise improper delay is not a

legitimate client interest ex: Lee v. American Airlines (lawyer’s disruptive conduct prolonged the proceedings). May be disciplined for unprofessional tactics/comments made to the opposing counsel.

A. Zealous Advocacy, ethical dilemmas in criminal law5. MR 3.3 Candor Toward the Tribunal: can’t offer evidence you know is false

a lawyer shall not knowingly: (a) 1. make a false statement of material fact/law to a tribunal

2. fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal/fraudulent act by the client3. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel OR 4. offer evidence that the lawyer knows to be false. if the lawyer has offered material evidence and comes to know of its falsity, the lawyer should take reasonable remedial measures when evidence that a lawyer knows is false is provided by a person who is

not a client, the lawyer must refuse to offer it regardless of the client’s interests

can tell your client to either come clean or tell them you won’t give the information.

(b) the duties stated in (a) continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by 1.6 (confidentiality)

i. duty to reveal trumps your confidentiality duty, so duty to reveal is superior to your duty of confidentiality.

(c) a lawyer may refuse to offer evidence that the lawyer reasonably believes is ffalse(d) in an ex parte proceeding (court action taken by one party w/o notice to the other), a lawyer should inform the tribunal of all material facts (even if adverse) known to the lawyer which will enable the tribunal to make an informed decision this rule may come into conflict with 1.6 when false evidence is offered by a client, the lawyer should seek to

persuade the client that the evidence should not be offered, or if it already has, that its false character should be immediately disclosed, if the persuasion is ineffective the attny must take reasonable remedial measure.

Except in defense of a criminal accused, the rule recognizes that, if necessary to rectify the situation, an advocate must disclose the client’s deception to the court/other party.

o May result in grave consequences (sense of betrayal), but the alternative is that the attny cooperate in deceiving the court which subverts the truth-finding process, which the adversary system is designed to implement. (and if not, the client may coerce the attny to be a party to the fraud as well)

Perjury by a criminal defendant: should seek to persuade the client from perjurious testimony, if persuasion fails, proposed resolutions: 1. permit the accused to testify by narrative (exempts duty to disclose false evidence), 2. excuse the lawyer from the duty to reveal perjury 3. reveal the perjury

If perjured testimony/false evidence has been offered: speak with the client confidentially, if that fails lawyer should withdraw if that will remedy the situation. If withdrawal will not remedy or is not possible, lawyer should

make disclosure to the court (and then let the court decide what should be done).

Constitutional requirements? Right to counsel, allow testimony even if the attny knows it is false

in some circumstances failure to make a disclosure is the equivalent of an affirmative misrepresentation

6. MR 3.4 Fairness to the Opposing Party and Counsel, a lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do so either.

Comment 2: applicable law in many j make it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited b law.

i. 2 kinds of witnesses: 1. fact (testify to what they saw) 2. expert; most j forbid contingent fees (on certain testimony or upon winning) on both kinds of witnesses. (but can still pay witnesses their appropriate fee)

(c) knowingly disobey an obligation under the rules of a tribunal (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(e) 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 the cause, the credibility of a witness, the culpability of a civil litigant or the guilt/innocence of an accused

Should not assert your personal opinion, this is distinct from your personal conclusions based on analysis of the facts

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

1. the person is a relative/employee/other agent of the client AND2. the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining to give such info

Distinction b/w duty of candor to the court and fairness to opposing counsel: duty to opposing counsel is more limited (does not normally have the duty to volunteer the existence of adverse facts/law to the other party).

Lawyer may interview witnesses and prepare them for trial, but they may not “suggest” that a client/witness testify falsely

Lawyer may not obstruct her opponent’s ability to collect evidence- but she may advise her client not to volunteer info to the opponent

A. Truth Witnesses and Lying Clients and Concealing Evidence and Preparing Witness

IN Re Ryder: lawyer whose client committed armed robbery, gave attny the weapon and money court concluded that was a violation, should not have concealed the evidence that way. lawyer cannot keep the fruits of the crime if it

destroys the chain of evidence linking the attny’s client to the crime and thereby prevent its use at trial

People v. Meredith: client told him the wallet was in a trashcan court held that the client’s disclosure was privileged, so therefore also ethically protected. once the lawyer decides to retrieve the wallet, the privilege is lost.

From these 2 cases see there is an obligation to turn over evidence. what about from a 3rd party? Again, pretty clear that you have to turn over the evidence. that you have an obligation to do so.

Morell v. State: friend finds a handwritten note by the d re: the kidnapping. Attny had to turn it over, even though it came from a 3rd party.

What are your duties if you want to turn away the materials? 1.say: if you give his to me, I have to turn it over as evidence2. if criminal says he is then going to get rid of it, he is breaking the law by destroying evidence, and there is a rule about you assisting in criminal or fraudulent conduct 3. your obligation as an attny is that you lay out the issues for your client and advise him to follow the law

7. MR 3.8 Special Responsibilities of a Prosecutor, they shall:(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause (ordinarily can bring any non-friv. Claim, but 3.8 makes a prosecutor’s responsibility more strict)(b) make reasonable efforts to assure that the accused has been advise of the right to counsel and has reasonable opportunity to gain such (c) not seek to obtain from an unrep’d accused a waiver of important pretrial rts(d) make timely disclosure to the defense of all evidence of information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense, all unprivileged mitigating info

- so you have an affirmative duty to share info with the opposing party, have to volunteer adverse information - what about if your star witness leaves? Should be honest if the opposing attny asks, but otherwise dn have to reveal the information. Dn go to whether the d is guilty, just to whether you may be able to prove it.

(e) refrain from making extrajudicial comments that have the likelihood of heightening public condemnation of the accused.

Nix v. Whiteside: there is no violation of the 6th Amendment right to effective assistance of counsel when the lawyer refuses to cooperate with the criminal defendant in presenting perjured testimony at trial

- How is ethical problems for prosecutors different from those of other lawyers?o They tend to have immunityo There is not a lot of supervision, oversight may occuro Courts reluctant to second guess their decisions o Have full access to the investigative powers of the governmento Acts of misconduct are worse of prosecution b/c they are acting under the color of

the law, may erode public confidence in the lawo Tendency to have public focus on conviction rates: dismissal/acquittal viewed as

incompetence

- Controversy over charging 2 suspects of the same crime, problematic b/c it may be unconst’l to present conflicting evidence to different juries

- Jim Bianco. Finds that adversarial system demands this kind of work. And that he does ask for the truth from his clients, dn try and filter the information. Believes some good is done (often a lighter sentence is req’d or the prosecution has misfiled the case).

Transaction with persons other than clients1. MR 4.1 Truthfulness in Statements to Others, in course of rep’ing a client, a lawyer shall not knowingly:

a. make a false statement of material fact or law to a 3rd person b. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by rule 1.6 (confidentiality)

i. comment: misrepresentations can occur by incorporating a known false statement or by failure to actii. a lawyer is required to be truthful when dealing with others, but generally has no affirmative duty inform an opposing party of relevant facts iii. ex: Virzi v. Grand Truck Warehouse: the lawyer had a duty to disclose the death of her client, failure to reveal this info was considered inappropriate.iv. comment: under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact, i.e. estimates of price/value, party’s intentions as to settlement may make a false statement regarding the price/value of client’s willingness for settlement

2. MR 4.2 restrictions on communications with someone you know is rep’d by counsel: Communications with a Person Represented by Counsel - in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

i. purpose: protect the lawyer-client rel’ship ii. ex: you retain the client of another attny to talk about settlement, this is not allowed!iii. can violate 4.2 through actions of another, including your client iv. rule applies only if the lawyer is rep’ing a client on the matter in questionv. rule applies only to communications about the subject of the other lawyer’s representation of his client vi. rule applies only if the lawyer knows the person is rep’d by another attny on the subject of the communication (know= actual knowledge, can be inferred though)vii. the client cannot waive protection of the rule

3. MR 4.3 Dealing with Unrepresented Persons- in dealing on behalf of a client with an unrep’d person, a lawyer shall not state or imply that the lawyer is disinterested- when the lawyer knows that the unrep’d person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding

5. MR 4.4: Respect for the rights of 3rd persons - no embarrassment or burden to others- unless there is some other substantial purpose

- a lawyer shall not use means that no substantial purpose other than to embarrass, delay or burden a 3rd person- a lawyer shall not use methods of obtaining evidence that violate the rights of such a personb. a lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document inadvertently sent shall promptly notify the sender

i. comment 2: whether the lawyer is req’d to take additional steps, such as returning the original document, is a matter of law, beyond the scope of these rulesii. comment 3: some lawyers may choose to return a document unread, where a lawyer is not req’d by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer