PROFESSIONAL RESPONSIBILITY OUTLINEPROFESSOR FEJFAR

SPRING 2002

I. LAWYERING AND ETHICSa. Model Rule 1.2: Scope of Representation

i. 1.2(a) Lawyer shall1. Abide by a client's decisions concerning the objectives of representation 2. Consult with the client as to the means by which they are being pursued3. Abide by client's decision to settle4. In criminal cases AND after consultation with lawyer, lawyer shall abide by

client's decisiona. To enter a pleab. To waive jury trial or not ANDc. To testify or not

5. NOTES: If the lawyer disagrees with client's decisionsa. Lawyer may withdraw ORb. Document that you have advised your client contrary to what the client

decided to do so the lawyer is coveredii. 1.2(b) Representation of a client, including representation by appointment

1. Does not constitute endorsement of client's political, economic, social, or moral views or activities.

2. NOTES: Ethic of detachmenta. Everyone deserves a defenseb. Representation of clients, whether we agree with their views or not,

prevents arbitrary practices by police and prosecutorsiii. 1.2(c): Limiting Objectives of Representation

1. A lawyer can limit the objectives of representation IFa. Client consents AFTER consultation

2. NOTES: Practical reasons to limit representationa. Lawyer does not want to be responsible for the client's acts

iv. 1.2(d): Crime or Fraud1. A lawyer shall not knowingly

a. Counsel OR assist a client to engage in crime or fraud2. A lawyer may

a. Discuss legal consequences of any course of conduct with a client ANDb. May counsel or assist a client to

i. Make a good faith effort to determine the validity, scope, meaning, or application of the law

3. NOTES: stay away from the borderlinea. Rule only talks about "criminal or fraudulent" conductb. ARGUABLY, lawyer can counsel or assist client to

i. Breach contractii. Violate environmental lawsiii. Violate regulatory laws

c. ON THE OTHER HAND, rule 1.16(a), relating to withdrawal, states that lawyers shall withdrawal for violating any other "law" which covers breach etc.

v. PA Model Rule 1.2 mirrors that of ABA Model Rule 1.2. Thus, in PA the analysis would be similar.

b. Model Rule 1.6: Confidentiality of Informationi. 1.6(a): General Rule—A lawyer shall not

1. Reveal information 2. Relating to representation of a client3. UNLESS

a. Client consents after consultation ORb. Disclosure is impliedly authorized in order to carry out representation

(even without client consent)ii. 1.6(b): Exceptions

1

1. A lawyer MAY reveal informationa. ABA is permissive not mandatory disclosure

2. IF Lawyer reasonably believes necessarya. 1.6(b)(1): To prevent client from committing a criminal act

i. Criminal act must be likely to result in imminent death or substantial bodily harm

1. Reasonably likely that the client will commit the acta. Client tells you ANDb. Client must be the one who will commit the act

ii. Criminal Act must be in the futureiii. Imminent is not defined, but look to the facts

b. 1.6(b)(2): To establish a claim or defense i. On behalf of the lawyer if the lawyer sues the clientii. To a criminal charge or civil claim against the lawyer based

upon the client's conduct ORiii. To respond to allegations in any proceeding concerning the

lawyer's representation of the clientiii. PA Model Rule 1.6: Confidentiality of Information

1. 1.6(a) mirrors ABA Model Rule 1.6(a)2. 1.6(b): A lawyer SHALL reveal such information if necessary to comply with

the duties in PA Model Rule 3.3a. Since 3.3 trumps 1.6, a lawyer is REQUIRED to disclose to abide by 3.3

3. 1.6(c): A lawyer may reveal information to the extent the lawyer reasonably believes necessary

a. 1.6(c)(1): same as ABA model rule BUTi. Takes out "imminent" requirement ANDii. Adds "substantial injury to financial interest or property of

another"1. Includes theft, fraud, embezzlement, etc.

b. 1.6(c)(2): lawyer may reveal informationi. To prevent OR rectify the consequences of client's criminal or

fraudulent act where lawyer's services were used1. Past and present acts of client

4. Read 1.6 in conjunction with PA Model Rule 4.1: Truthfulness in Statements to Others

a. During representation, a lawyer SHALL not knowinglyi. 4.1(b): fail to disclose a material fact to a third person where

disclosure is necessary to1. Avoid aiding and abetting a crime or fraudulent act

UNLESS2. Disclosure is prohibited by PA Model Rule 1.6

b. NOTES: Although disclosure is permissive under 1.6(c), AP Model Rule 4.1(b) might REQUIRE disclosure

c. Model Rule 1.16: Withdrawali. 1.16(a): A lawyer shall not represent a client OR if already representing a client shall

withdraw IF1. 1.16(a)(1): representation will violate rules of professional conduct OR other

lawa. Law is broader here than other parts of the code

2. 1.16(a)(2): lawyer is physically or mentally unable to represent the client OR3. 1.16(a)(3): the lawyer is discharged from representation

ii. 1.16(b): Permissive Withdrawal: Unless required by 1.16(c), a lawyer MAY withdraw IF1. Withdrawal will not adversely effect the interests of the client OR

a. 1.16(b)(1): client persists in course of conduct that involves lawyer's services and lawyer reasonably believes the conduct is fraudulent or criminal

b. 1.16(b)(2): client has used lawyer's services to perpetrate a crime or fraud

c. 1.16(b)(3): client insists on pursuing repugnant or imprudent objectives

2

d. 1.16(b)(4): client fails to fulfill obligation regarding lawyer's services AND client had notice that lawyer would withdraw if client did not fulfill obligation

e. 1.16(b)(5): representation will unreasonably burden the lawyer financial OR representation made unreasonably difficult by the client

f. 1.16(b)(6): other good cause showniii. 1.16(c): Court order to represent

1. Lawyer SHALL represent client IFa. Court orders lawyer to do so EVEN THOUGHb. Good cause for terminating representation exists

2. NOTES: Court MAY allow withdraw if counsel can be replaceda. Criminal cases is less likely to withdrawb. In civil cases, easier to withdraw if closer to the beginning of

representationiv. 1.16(d): After Withdrawal

1. Layer shall protect interests of the client BUT2. Does not mean lawyer can protect client's criminal or fraudulent behavior

v. PA Model Rule 1.16 mirrors ABA Model Rule 1.16 and thus the analysis would be similar.

d. Model Rule 2.1: Advisori. A Lawyer shall exercise independent professional judgment ANDii. Render candid advice

1. In rendering candid advices, a lawyer MAYa. Refer to the law ANDb. Moral, economic, social, and political factors

i. Factors must be relevant to the client's situationiii. PA Model Rule mirrors ABA Model Rule 2.1 and thus the analysis would be similar

e. Model Rule 5.1: Responsibility of a Partner or Supervisori. 5.1(a): Partner in a law firm SHALL

1. Make sure all lawyers in the firm conform to the Rules of Professional Conductii. 5.1(b): Supervisors shall

1. Make sure all lawyers working beneath conform to the Rules of Professional Conduct

iii. 5.1(c): Lawyer SHALL be responsible for another's violation of Rules of Professional Conduct IF

1. 5.1(c)(1): lawyer orders a violation of the rules of professional conduct2. 5.1(c)(1): has knowledge of violation and ratifies the conduct OR3. 5.1(c)(2): A partner or supervisor knows of the violation at a time where she

can reasonably prevent, avoid, or mitigate a violation of the RPC but fails to do so

iv. PA Model Rule 5.1 mirrors ABA Model Rule 5.1 and thus the analysis is similarf. Model Rule 5.2: Responsibility of a Subordinate Lawyer

i. 5.2(a): Subordinate lawyer is bound by the rules of conduct EVEN THOUGH action taken at direction of another lawyer

ii. 5.2(b): subordinate lawyer DOES NOT violate rules of professional conduct IF1. Acts in accordance with supervisor's reasonable resolution of an arguable

question of professional dutyiii. There is a duty to report violations of professional rules of conduct under Model Rule

8.3 and 8.4iv. PA Model Rule 5.2 mirrors ABA Model Rule 5.2 and thus the analysis is similar

g. Spaulding v. Zimmerman —'s attorney fails to find aneurysm in ; 's attorney finds out about it but does not disclose.

i. 1.6—since info related to representation of , 's attorney was not required to disclose under the Model Rules

h. Civil Procedure Rulesi. Initial mandatory disclosures

i. Tampering with Evidence 18 Pa. C.S. § 4910i. Anticipation of proceeding or investigationii. One destroys, alters, or removes documents ORiii. Fraudulent uses such documents with intent to mislead

3

1. NOTES: may destroy after five yearsj. HYPOTHETICAL

i. committed prior crime in CA not in PA. At PA trial right before sentencing, judge asks "any prior crimes?" Model rules permit nondisclosure. BUT Model Rule 3.3(a)(1) prohibits a lawyer from making a false statement of a material fact or law to the court and (a)(2) prohibits a lawyer from failing to disclose a material fact to court when necessary to avoid assisting crime or fraud of client. THUS,

1. If judge does not ask, lawyer need not disclose prior crimes.2. If judge asks, "no prior crimes, isn't that true?" lawyer must say, "I can't

comment either way." a. If info comes from client, no disclosure under 1.6.b. If lawyer gets information on his own, lawyer should disclose.

ii. Judge's faulty sentence instruction or guidelines favorable to your client, the 1. Under Model Rule 3.3(a)(3), lawyer must disclose legal authority2. Under Model Rule 3.3(a)(3), lawyer need not disclose independent facts

k. Ambiguities in the Lawi. Lawyers must interpret the law within a reasonable range of interpretation ii. Matter of Krueger —lawyer advised client to stay in hotel for certain period of time so

client could be considered a resident of that state for custody purposes. Although client legally was then a resident, the lawyer gave advice that fell outside the reasonable interpretation of the law.

l. Disclosing Incriminating Evidencei. Stenhach —Criminal defense attorney must turn over to prosecutor any physical

evidence relating to crime in possession of the 's attorney1. Criminal defense attorney not required to turn over confessions

a. Attorney-client privilege attaches b. 5th Amendment privilege against self-incriminationc. Confidentiality rules apply

ii. Model Rule 3.4(a): Lawyer shall not 1. Unlawfully obstruct another party's access to evidence OR2. Unlawfully alter, destroy, or conceal a document or other material3. Having potential evidentiary value

iii. Other Applicable Rules:1. Model Rule 1.6 may prohibit lawyer from disclosing information unless

exceptions apply2. PA Model Rule 1.6 would require disclosure because 3.3 trumps 1.6 (lawyer

shall not fail to disclose anything that would assist client in committing a crime or fraud)

3. Model Rule 8.4(a): prohibits misconduct4. Model Rule 8.4(b): prohibits lawyer from committing criminal act reflecting

adversely on lawyer's honesty, trustworthiness, or otherwise fitness of lawyer II. CONFORMITY TO LAW

a. Model Rule 3.1: Meritorious Claims and Contentionsi. Lawyer shall not

1. Bring or defend frivolous claims UNLESS2. There is a basis for doing so that is not frivolous

a. Good faith argument for an extension, modification, or reversal of existing law

ii. In a criminal case1. Lawyer who cannot assert a nonfrivolous defense may

a. Defend by requiring prosecution to prove every element beyond a reasonable doubt

i. Lawyer cannot put on perjured testimony orii. Present fraudulent evidence

iii. PA Model Rule 3.1 mirrors ABA Model Rule 3.1 and thus the analysis is similarb. Model Rule 3.2: Expediting litigation

i. A lawyer shall1. Make reasonable efforts to expedite litigation2. Consistent with client's interests

4

a. NOTES: no unreasonable stalling, BUT can delay for tactical advantage, financial reasons, or preparation of witnesses

ii. PA Model Rule 3.2 mirrors ABA Model Rule 3.2 and thus the analysis is similarc. Model Rule 8.3: Reporting Professional Misconduct

i. 8.3(a): A lawyer shall report when1. Lawyer has knowledge that another lawyer has or will violate professional

rules of conduct2. Violation is substantially related to dishonesty, trustworthiness, or fitness

ii. 8.3(c): This rule does not require disclosure if information is protected under 1.61. NOTES: if the client is a lawyer, and client gives information to another lawyer

about his violation of 8.3, lawyer should not disclose under 1.6 BUT2. If there is a casual conversation between lawyers about a violation a lawyer

should reportd. Model Rule 8.4: Misconduct

i. 8.4(a): cannot violate, attempt to violate, or knowingly assist another to violate rules of professional conduct OR violate, attempt to violate, or knowingly assist another to through the acts of another

1. Anti-Contact Rule: lawyer shall not talk to adverse party without the party's lawyer present

ii. 8.4(b): cannot commit criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects

iii. 8.4(c): cannot engage in dishonest, fraudulent, deceitful, or misrepresentative conduct

iv. 8.4(d): cannot act prejudicially to the administration of justicev. 8.4(e): cannot state or imply ability to influence improperly a government agency or

officialvi. 8.4(f): cannot knowingly assist a judge/judicial officer in conduct that is a violation of

applicable rules of judicial conduct or other lawVII. PA Model Rule 8.4 mirrors ABA Model Rule 8.4 and thus the analysis is similar.

e. Criminal Lawi. General Rule: if a client seeks advice to commit misconduct, a lawyer may be liable

criminally or civilly1. Criminal law requires "mens rea" to commit crime

a. Rule 1.2(d) requires lawyer to refrain from assisting client in conduct that the lawyer knows will be criminal or fraudulent

i. Knowledge can be met by1. Actual Knowledge2. Recklessness OR3. Inferred from circumstances (Preamble)

a. Example: client pays for legal services with a brand new car puts lawyer on notice

ii. Other crime may require specific intent2. Lawyer is required tow withdraw under 1.16 if client is or will be breaking the

law BUTa. If client is well established with the firm, lawyer may be a captive of

the client and must do as he or she says for fear of losing the clientii. Areas of concern: a lawyer may be liable IF

1. Drafts opinion letters to help put together a fraudulent scheme: US v. Benjamin

2. Tax advice 3. Drafting illegal documents

iii. Prepaid legal services for those engaged in crime1. A lawyer cannot agree to represent a client before a crime occurs or in

anticipation of a crimea. Lawyer may be charged with conspiracy ANDb. Violates the code of ethics

2. If a lawyer is placed on a retainer, it's harder to prove that the lawyer was hired before the crime was committed

a. Check if attorney does criminal, civil, or bothi. If criminal only, might be hired in anticipation of crime

5

ii. If civil and criminal, might not be hired in anticipation of a crimeiv. Obstruction of Justice

1. Consists of bribery of a judge, grand jury, or a jury2. Interference with a jury3. Tampering or destroying evidence

v. Mail Fraud1. Scheme to defraud2. has used the mail or caused another to use the mail for purposes of

executing the scheme3. US Mail must be used

a. No UPS, FED Express, or otherwise not US Mail Servicevi. Wire Fraud

1. Scheme to defraud2. uses or is the cause of use of interstate wire communication to execute the

schemea. Must cross state lines ORb. Foreseeable that communication would cross state liens (courts are

split here)vii. Theft by Deception

1. False representation of existing fact2. Obtaining property or something of value thereby3. With intent to defraud AND4. Victim relies on the representation

viii. Other Crimes1. Conspiracy

a. Agreement by two or more people to commit a crimei. Can be criminally or civilly liable

2. Aiding and Abettinga. Person has knowledge of the crime ANDb. Substantially assists another to commit the crime

i. Silence is not enough to substantially assist3. RICO

a. Enterprise involving interstate commerceb. Where a person invests income derived from a pattern of racketeering

i. Pattern of racketeering1. Two acts required AND2. Threat of future activity

ii. Mail Fraud or Wire Fraud are predicate offenses1. Example: padding bills using US mail three times in the

pasta. RICO VIOLATION

i. Can be liable criminally ANDii. Civilly with treble damages

ix. Model Rule 3.8: Special Responsibilities of a Prosecutor1. 3.8(f): The prosecutor shall not

a. Subpoena a lawyer in grand jury or other criminal proceeding to present evidence about a past or present client unless

i. Prosecutor reasonably believes1. Information is not protected from disclosure by rule or

privilege2. Evidence sought is essential to completion of ongoing

investigation or prosecution AND3. There is no other feasible alternative to obtain the

information2. NOTES: PA Rule 3.10 applies to state and local authorities

a. Cannot be applied to federal prosecutorsf. Tort Law

i. Negligent Misrepresentation 1. Supplying false information for the guidance of others in business transactions

AND6

2. Justifiable reliance on the informationii. Negligent Misrepresentation to Third Parties

1. Supplying false information for the guidance of others in business transactions AND

2. Justifiable reliance on the information3. No privity requirement under Greycas

iii. Intentional Torts1. Civil Fraud

a. Statement to sb. Statement must be falsec. Statement made with knowledge or recklessness of falsityD. s relied to their detriment

2. Liability for Civil Fraud as an Agenta. Liability if agent finds out of fraud in mid-stream but fails to disclose

i. Disclosure would violate Model Rulesii. Nondisclosure would violate agency lawiii. PA MR. 1.6 requires disclosure where lawyer's services would

perpetuate fraudiv. Securities and Regulatory Law

1. Securities Frauda. Nexus with the saleb. Materialityc. Scienter

i. Knowing or recklessnessv. Tax Law: Advice on Tax Deductions: advise based on the continuum of clearly

entitled to deduction to clearly fraudulent1. ABA Formal Opinion 314 (1965): Tax Advice based on

a. Reasonable basis standard2. ABA Formal Opinion 85-352: (1986-Present): Tax advice based on

a. Realistic possibility of successi. IRS says a 33% is realistic possibility of success

vi. Procedural Law1. FRCP Rule 11

a. Lawyer vouches for validity of claim with signature2. FRCP Rule 26

a. Sanctions include reasonable attorney's feesIII. COMPETENCE

a. Model Rule 1.1: Competencei. A lawyer shall

1. Provide competent representation to a clienta. Legal knowledge, skill, thoroughness, and preparation b. Reasonably necessary for the representation

II. PA Model Rule 1.2 mirrors ABA Model Rule 1.2 and thus the analysis is similar.b. Model Rule 1.3: Diligence

i. A lawyer shall1. act with reasonable diligence and promptness in representing a client

II. PA Model Rule 1.3 mirrors ABA Model Rule 1.3 and thus the analysis is similarc. Model Rule 1.4: Communications

i. 1.4(a): A lawyer shall1. Keep a client reasonably informed AND2. Promptly comply with reasonable requests for information

ii. 1.4(b): A lawyer shall1. Explain a matter to a client to the extent reasonably necessary to permit the

client to make informed decisions about representationIII. PA Model Rule 1.4 mirrors ABA Model Rule 1.4 and thus the analysis is similar

d. Checks on Incompetencei. Model Rulesii. Continuing Legal Education (CLE)iii. Peer Review (Practical)

1. Mentors in the firm7

2. Annual evaluations of Associatesiv. Market Reputation

e. Malpracticei. Duty

1. Duty is formed by the Attorney-Client relationship 2. Duty to third parties may be formed by

a. Negligent misrepresentation where there is no privity requirement (Greycas)

ii. Breach1. Reasonably competent lawyer standard

iii. Causation1. Lawyer's representation must cause damage

iv. Damages1. Economic Loss

f. Model Rule 1.8(h)i. A lawyer shall not

1. make an agreement prospectively to limit liability to a client for malpractice UNLESS

a. Permitted by law ANDb. Client is independently represented in making the agreement

ii. A Lawyer shall not1. Settle a claim for malpractice liability with an unrepresented client OR former

client UNLESSa. Lawyer advises person in writing that independent representation is

appropriateg. Duty to Disclose Settlement Offers

i. Model Rule 1.2(a) and Model Rule 1.4 read together require lawyer to tell client of settlement offers

h. Preamble § 18: Violation of Rule should not give rise to cause of action NOR should it create presumption that a legal duty has been breached

i. They are guidelines for lawyer's conducti. Ineffective Assistance of Counsel

i. Deficient performance1. Strong presumption that layer was efficient2. Reasonable professional judgment standard

ii. Prejudice to Client's case1. Guilt phase in criminal proceeding

a. Show that there is a reasonable probability that absent error, is not guilty

2. Sentencing Phasea. Show that there is a reasonable probably that absent error would not

have bee sentenced to deathIV. CONFIDENTIALITY

a. Model Rule 1.6 never requires disclosure because it is permissive BUTi. Can't assist a crime or fraud under Model Rule 1.2ii. Should withdraw under 1.16(a)

1. COMMENT: after withdraw, must refrain from disclosing unless required under 1.6 (never required)

a. May give notice of the fact of withdrawiii. Model Rule 4.1(b) requires disclosure UNLESS prohibited by 1.6iv. PA Model Rule 4.1(b) is mandatory disclosure if services are used to facilitate fraud

b. Attorney-Client Privilege (Common Law or Statutory: Distinguish from Rule 1.6, a disciplinary rule)

i. A communication1. From Client to Lawyer (Some courts say lawyer to client also)

a. Documents communicated to lawyer for purposes of litigation are privileged

b. Observation are NOT privilegedc. Physical evidence not included (Stenhach)d. Name and fees paid are not privileged

8

e. Whereabouts of client are not privilegedii. Made between privileged persons

1. Client to lawyera. No legal fees required

2. Not other parties 3. Preliminary conversations are privileged4. Secretaries and paralegals are privileged persons

iii. Made in confidence1. If third party's are present AND communication is made in confidence, then it

is still privilegediv. For purposes of obtaining/providing legal assistance of the client

c. Attorney Client Privilege for Corporationsi. Privilege extends to corporations

1. Control group AND2. Employees

a. Upjohn Privilege to corporate employees applies IFi. Communications by corporate employees ii. To counsel for the corporation iii. At the direction of corporate superiorsiv. In order to get legal advice from counsel

d. Work Product Doctrine: i. Materials prepared by lawyer are privileged IF

1. Prepared in anticipation of litigation AND2. On client's behalf

ii. Mental impressions of attorney can only be disclosed IF1. Extraordinary circumstances exist

e. Exceptions to Attorney Client Privilegei. Pooled information exception

1. Joint clients and cooperating partiesa. Information is not privileged after break-up of parties

ii. Documents in possession of the Lawyer are privileged IF1. Documents in hands of client were protected by 5th amendment if never

transferred to lawyer AND2. Transfer of documents from client to lawyer meets elements of attorney-client

privilege iii. Documents in possession of the lawyer are NOT privileged IF

1. Client could not claim 5th amendment protection a. 5th amendment protects against compelled testimony AND

2. Attorney merely possess documents of clientiv. Crime-Fraud Exception

1. If client goes to lawyer seeking legal assistance for purposes of committing a crime or fraud, communications are NOT privileged

v. Waiver of privileged information1. Privilege does not apply where attorney puts the privileged information at

issuea. Only the information at issue is waive, not ALL privileged

communicationsf. Self-Defense

i. Meyerhoffer —disclosure of fraud permissible to avoid liability for fraud1. ABA Model Rule 1.6

a. General Rule—no disclosureb. Lawyer has a duty to communicate with client about fraud under 1.4c. Exception to 1.6 disclosure

i. 1.6(b)(2) permits, but does not require, a lawyer to disclose to avoid liability for client's conduct

g. Liability of Lawyer for Facilitating Fraudulent Transactioni. Lawyer will be liable if he assists a client to commit fraudii. Lawyer should disclose if he knows the client is fraudulently withholding information

1. Securities law9

2. Real Estate Lawh. Bodily Harm or Death

i. Suicide1. Not directly covered under ABA rule because rule speaks to criminal act—

suicide is ordinarily not a criminal act because there would be no one to prosecute. HOWEVER

2. ARGUE that the client is incapacitated under 1.14(b) and lawyer should take reasonable protective actions if reasonably believes client cannot act in his own interest

i. Duty to Warni. Lawyer has a duty to warn foreseeable victims that client is dangerous

1. Hawkins — in jail, tells lawyer he wants out, lawyer says OK, lawyer knew about mental illness from 's mother, is released and assaults mother and attempts suicide.

a. HELD: Duty of confidentiality—lawyer must abide by client's instructions

i. Under 1.14(a), lawyer shall maintain normal attorney-client relationship whenever reasonable possible even if client is impaired.

b. HELD: Duty to warni. Mother, as victim, already knew was dangerous, so no duty to

warnV. Duty to the Court

a. Model Rulesi. Model Rule 3.3: Candor Toward the Tribunal

1. Model Rule 3.3(a)(1)—lawyer shall not knowingly make false statement of material fact or law to a tribunal

a. Law—can't make up a statute but can argue within a reasonable range of argument

b. Fact—can't make up facts but argue within a reasonable range of argument/interpretation

2. Model Rule 3.3(a)(2)— lawyer shall not knowingly fail to disclose material facts necessary to avoid assisting a crime or fraud

a. Cannot assist client in i. Committing perjuryii. Destroying evidenceiii. Falsifying evidence

3. Model Rule 3.3(a)(3)—lawyer shall not knowingly fail to disclose directly adverse legal authority whether or not the adverse party does the same

a. All controlling precedent4. Model Rule 3.3(a)(4)—lawyer shall not knowingly offer perjured testimony or

falsified documentsa. If lawyer discovers after such evidence is offered

i. Lawyer must take reasonable remedial measures ii. If that fails, lawyer must disclose to the court

5. Model Rule 3.3(b) trumps 1.6 Confidentiality6. Model Rule 3.3(c)—lawyer may refuse to offer evidence that the lawyer

reasonably believes is false a. Discretionary and permissive

7. Model Rule 3.3(d)—Ex parte communicationsa. Lawyer shall inform the tribunal of all present material facts whether

adverse to the lawyer or notii. Model Rule 3.4: Fairness to Opposing Party and Counsel

1. Model Rule 3.4(a)—lawyer shall not a. Unlawfully obstruct another party's access to evidence ORb. Destroy evidence or alter documents unlawfully

i. Unlawfully usually means a statute prohibits such conduct2. Model Rule 3.4(b)—lawyer shall not falsify evidence, counsel or assist perjury,

or offer an unlawful inducement to a witness (bribe?)3. Model Rule 3.4(c)—lawyer shall not knowingly disobey court order

10

4. Model Rule 3.4(d)—lawyer shall not make frivolous discovery requests or fail to comply with discovery requests

5. Model Rule 3.4(e)—lawyer shall nota. Ask inadmissible/irrelevant questionsb. Vouch for witnessc. Assert personal knowledge of the factsd. State personal opinion about

i. Witness credibilityii. Justness of causeiii. Culpability or guilt

iii. Model Rule 3.5: Impartiality and Decorum of the Tribunal1. Model Rule 3.5(a) prohibits bribery of judges/jurors/etc.2. Model Rule 3.5(b) prohibits unlawful ex parte communications about a

pending case3. Model Rule 3.5(c) prohibits intentional disruptive conduct in court

iv. Model Rule 3.6: Trial Publicity1. Model Rule 3.6(a) generally prohibits discussing case to media if lawyer

reasonably should know that it will have substantial likelihood of materially prejudicing the outcome

2. Model Rule 3.6(b): Exceptionsa. Model Rule 3.6(b)(1) permits disclosing claim, defense, identity of

parties to the mediai. No clear indication of how specific the disclosure to media can

beb. Model Rule 3.6(b)(2) permits disclosure to media of any information

contained in public recordv. Model Rule 3.7: Lawyer as a Witness

1. Model Rule 3.7(a) prohibits advocacy AND participation as witness in same trial UNLESS

a. (a)(1)—testimony is uncontestedb. (a)(2)—testimony relates to nature or value of legal representation c. (a)(3)—disqualification of lawyer would materially hardship the client

vi. Model Rule 3.8: Special Responsibilities of Prosecutors1. Model Rule 3.8(a) prohibits prosecution where the prosecutor knows the

charge is not supported by probable cause2. Model Rule 3.8(b) prosecutors shall allow the to get a lawyer3. Model Rule 3.8(c) prosecutors shall not let waive rights without 's attorney4. Model Rule 3.8(d) prosecutors must disclose evidence that negates guilt or

mitigates the offense5. Model Rule 3.8(e) prohibits prosecutors and other law enforcement from

making prejudicial extrajudicial statements6. Model Rule 3.8(f) SEE ABOVE7. Model Rule 3.8(g) prohibits prosecutors from heightening the condemnation of

the accusedvii. Model Rule 4.1: Truthfulness in Statements to Others

1. Model Rule 4.1(a) prohibits lawyer from knowingly making a false statement of material fact or law to a third person

2. Model Rule 4.1(b) prohibits a lawyer from failing to disclose a material fact in order to avoid assisting crime or fraud subject to 1.6

3. Comment [2]: Settlementsa. Permits inflation of settlement offerb. Deflation is not covered by the rule

b. Perjuryi. Crary —lawyer cannot allow client to lie during a deposition;

1. Lawyer MUST correct perjured testimony OR2. Withdraw

ii. Nix —There is no constitutional right to commit perjury1. Lawyer can threaten to withdraw OR2. Possibly disclose without fear of liability for ineffective assistance of counsel

11

iii. Long —lawyer was "concerned about client's testimony" but client did not unequivocally state that he would commit perjury

1. Lawyer must advise the client regarding perjury2. Lawyer must ask whether story is true

a. IF it's an arguably believable story, go forward with the testimony3. IF, however, client gives a direct expression of intent to commit perjury (Nix),

a. Lawyer must move to withdrawal, and if deniedb. Lawyer should disclose to the court that client intends to commit

perjuryc. Remedies for Abusive Litigation

i. Frivolity1. Model Rule 3.1: Meritorious Claims and Contentions

a. Lawyer shall noti. Bring or defend frivolous claims UNLESSii. There is a basis for doing so that is not frivolous

1. Good faith argument for an extension, modification, or reversal of existing law

b. In a criminal casei. Lawyer who cannot assert a nonfrivolous defense may

1. Defend by requiring prosecution to prove every element beyond a reasonable doubt

a. Lawyer cannot put on perjured testimony orb. Present fraudulent evidence

c. Comment 2 provides that a lawyer is not responsible for investigating the facts plead in your client's case

d. HOWEVER, the comment conflicts with FRCP Rule 11, which requires a reasonable inquiry and effective basis for factual assertions

2. PA Model Rule 3.1 mirrors ABA Model Rule 3.1 and thus the analysis is similar3. Model Rule 3.2: Expediting litigation

a. A lawyer shalli. Make reasonable efforts to expedite litigationii. Consistent with client's interests

1. NOTES: no unreasonable stalling, BUT can delay for tactical advantage, financial reasons, or preparation of witnesses

4. Solowitz —lawyer cannot keep appealing a case on the same arguments dealing with the same facts when there is no new argument for overruling the past cases

ii. Tort Remedies1. Negligence

a. Attorney does not have a duty to the opposing party in the adversary system

2. Abuse of processa. Ulterior purposeb. Act in use of process which is improper in the regular prosecution of

the proceedingi. Must be a procedure AFTER filing the lawsuit (ex: discovery

tactics)3. Malicious Prosecution

a. American Rulei. Prior proceeding terminated in total favor of the present (past

)ii. Absence of probable cause for the prior proceeding

1. Reasonable investigation and research OR2. Reasonable belief that the claim may be valid (ARGUE

BOTH)iii. Malice

1. Partya. Malice is presumed from lack of probable cause

2. Attorney Representing Party12

a. Malice is not presumedb. must show attorney's independent malice ANDc. Lack of probable cause

b. English Rulei. Requires the above elements ANDii. Special damages resulting from ORIGINAL lawsuit

1. Damage to fame2. Liberty3. Property Damages

4. Dragonetti Act (Pennsylvania)a. Wrongful use of civil proceeding

iii. FRCP Rule 111. Signature represents to the court that lawyer

a. Is not presenting the case for improper purposeb. Arguments are nonfrivolous for either extension, modification, or

reversal of existing lawc. Arguments have evidentiary support

d. How Far for a Clienti. Cross Examination of Truthful Witness

1. Civil Casea. Lawyer should not try to discredit truthful witness by trying to show the

witness is lying when if fact the lawyer knows the witness is truthful2. Criminal Case

a. Lawyer should refrain from saying the witness is "lying" BUTb. Lawyer should state that the witness may be "mistaken"

ii. Dirty Tricks1. Lawyer cannot raise settlement/Insurance issues at trial (also barred by Rules

of Evidence)2. Model Rule 3.4 prohibits a lawyer from "vouching" for a witness3. Lawyer cannot use illegal means to gather evidence4. Contacting Debtors

a. Fair Debt Collection Act requires that one who is collecting debts refrain from using deceptive tactics

i. Must disclose identity of creditor ANDii. Disclose purpose

VI. Lawyer-Client Relationshipa. Model Rules

i. MR 1.5(a) requires attorneys fees to be reasonableii. PA MR 1.5 prohibits "clearly excessive" fees (higher standard than MR)iii. Factors

1. Time, labor, novelty, difficulty, and skill required to perform legal service2. Whether lawyer will have to preclude other employment for taking the case3. Compare fee charged to fee for similar legal service in the locality 4. Amount and results5. Time limitations imposed by the client6. Nature and length of professional relationship b/w lawyer and client7. Experience, reputation, and ability of the lawyer8. Whether fee is fixed or contingent

iv. MR 1.5(b)1. New or relatively new client2. MUST disclose fee

a. Give client reasonable determination of the fee3. Preferably in writing (PA requires a writing)

v. MR 1.5(c): Contingent Fees1. Writing is required (BOTH MR and PA Rules)

a. If there is no writing, attorney risks having fee paid under quantum meruit theory: reasonable hourly fee)

2. Lawyer MUST disclose accounting method lawyer will usea. Lawyer does not have a duty to disclose alternative accounting

methods or explain other options13

3. Unconscionable Contract for Contingency Feea. Sophistication of clientb. Market price comparison

vi. MR 1.5(d)1. Contingency fee prohibited

a. Domestic relations where payment is contingent upon securing i. Divorceii. Alimonyiii. Property settlementiv. Child supportv. Child custody

b. Criminal Casesi. Representing a defendant in a criminal case

2. PA MR 1.5(d)(1) allows property settlements to be paid on contingency fee vii. MR 1.5(e)

1. Lawyers who are not in the same firm may split fees IFa. Either

i. Fee is proportionate to the services of each lawyer ORii. Written agreement reached with client stating that each lawyer

is jointly responsible ANDb. Lawyers advised the clients and client does not object to every lawyer c. Total fee is reasonable

viii. MR 4.2 Communication with Person Represented by Counsel1. In representing a client, lawyer shall not communicate about

a. Subject matter of the representationb. With a person the lawyer knows to be represented by another lawyerc. In the matter

i. Matter is defined in MR 1.11 as 1. Any proceeding involving a specific party or parties AND2. Any other matter covered by the conflicts rules

d. UNLESSi. Opposing party's lawyer consents ORii. Lawyer is authorized by law to contact the opposing party

without his attorney present2. Comment 4 discusses the issue of corporations

a. A lawyer shall not communicate with another person or entity i. Who has managerial responsibilities on behalf of the

organization ORii. Whose acts or omission could bind the corporation iii. UNLESS

1. Such person is represented by his or her own counsel2. If so, consent by that attorney is sufficient to satisfy the

rule3. Rule apples regardless if the suit has been filed4. Comment [3] provides that the communications apply with any person,

whether a party or not5. 8.4(a) prohibits lawyer from assisting another to violate the rules. Thus, the

lawyer cannot have anyone else contact opposing party without presence of opposing party's attorney

ix. MR 4.3: Dealing with Unrepresented Party (NOT Opposing Client)1. In dealing on behalf of a client2. With a person who is not represented by counsel3. Lawyer shall not imply that he is disinterested4. Lawyer must make the person understand the lawyer's role in the matter

x. MR 1.15: Safekeeping Property1. Lawyer must set up client trust fund account

a. Separate from lawyer's own propertyb. Client's property must be identified

2. Lawyer must also maintain appropriate accounting to disburse client funds3. PA MR 1.15 adds an additional requirement

14

a. Interest goes to IOLTA account for state useb. Nature of Lawyer-Client Relationship

i. Intake Interview and Counseling1. Intake Interview

a. Normally free to build rapportb. Start with broad questions and move to leading, detailed questions

2. Counselinga. Traditional: lawyer directs clientb. Participatory: client participates in decision-making and responsibility

ii. Lawyer must tell client with absolute certainty whether lawyer will take the case or not

1. Court will always accept the client's version of the intake interview because the lawyer should know the law

2. Lawyer should run a conflicts checkiii. Attorney by Estoppel

1. IF Reliance by client to his detriment AND2. Reasonable person would rely on the advice given3. THEN court will find the attorney client relationship

c. Scopei. Settlement Authority

1. Lawyer must have authority to settle cases on behalf of the clienta. Express authorityb. Implied in Law

i. Applicable to government attorneysc. Apparent Authority (Implied-in-Fact Authority)

i. Words or deeds by the clientii. Causes 3rd party to reasonably believeiii. That the attorney has client's authority to settle the case

ii. Appellate Discretion1. Lawyer has the discretion to determine which issues will be argued on appeal2. Lawyer does NOT have discretion whether to appeal the case or not

iii. Plea Bargains1. Lawyer MUST have the express authority to negotiate a plea bargain on behalf

of the clientd. Fees

i. Reasonableness or excessiveness depends on the sophistication of the clientii. Retainers

1. Refundablea. Attorney refunds the excess funds from the retainer

2. Non-refundable retainera. Attorney keeps excess funds from retainerb. Unconscionability issue

i. Sophistication of client should determine whether fee should be refunded

e. Non-Clientsi. Anti-Contact Rule

1. Blanket Prohibition Rulea. Cannot talk to anyone in the corporation

2. Control Group Testa. Prohibited from talking to top management

3. Neisig Testa. Any employees b. Whose acts or omission

i. Could bind the corporation OR ii. Impute liability to the corporation

c. The anti-contact rule applies to such persons ii. Prosecutors

1. General Rulea. Prosecutorsb. Can interview people up to the investigatory stage

15

c. Prior to formal charge2. Officers who are also lawyers

a. State ethics rules also applyVII. Conflicts

a. Model Rulesi. MR 1.7(a): Conflict of Interests—General Rule (Concurrent Conflicts)

1. Lawyer shall not represent a client with direct adversity to another client UNLESS

a. Lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND

b. Each client consentsii. MR 1.7(b): Positional Conflicts

1. Lawyer shall not represent a client if representation may be materially limited by lawyer's responsibility to another client UNLESS

a. Lawyer reasonably believes the representation will not be adversely affected AND

b. Client consents2. Comment [9] states that lawyers may represent parties having antagonistic

position on a legal question that arises in two different cases in different trial courts but NOT in at the same time in appellate court.

a. ABA Formal Opinion 93-377 rejects comment [9] and provides that lawyers cannot so represent antagonistic clients if both are in the same jurisdiction. The three factors are

i. Importance of effect of representation ii. Impact on the outcomeiii. Temptation to delay (soft peddling)

3. Corporation Takeovera. Loyalty to original clientb. Adverse affectc. Confidentialityd. Whether language was identical or different

4. PA MR 1.7 and MR 1.7 are the same.5. MR 1.10 imputes disqualification to the entire firm where an attorney from the

firm would be prohibited from representing a client under MR 1.7iii. MR 1.8: Conflict of Interests: Prohibited Transactions

1. MR 1.8(a): Lawyer shall not enter into business transaction with the client UNLESS

a. Transaction is fair and reasonable to the clienti. Since lawyer decides whether the transaction is fair and

reasonable, the lawyer is opening the door to a conflictb. Client has reasonable opportunity to seek independent counsel for the

transaction ANDc. Client consents in writing

2. MR 1.8(b): lawyer shall not use information relating to representation of a client to the disadvantage of the client unless client consents, subject to MR 1.6 or MR 3.3

3. MR 1.8(c): lawyer cannot preparea. Instrumentb. Giving lawyer or lawyer's relative c. A substantial gift, including testamentary giftd. From the client UNLESS

i. Client is a relative of the lawyere. If lawyer is disqualified under this section, MR 1.10 imputes

disqualification to everyone in the lawyer's firmf. PA MR 1.8(c) adds "within the 3rd degree of relationship"

4. MR 1.8(d): lawyer can agree to represent client BUTa. Must wait until representation is over before lawyer can attempt to buy

the media rights to the client's story5. MR 1.8(e): lawyer cannot provide financial assistance to the client UNLESS

a. Advancements to client will be repaid OR16

b. Client is indigent 6. MR 1.8(f) lawyer shall not accept compensation for representing a client from

anyone other than the client UNLESSa. Client consentsb. There is no interference with lawyer's professional judgment ANDc. Information relating to representation of a client is protected by MR 1.6

7. MR 1.8(g): joint representation8. MR 1.8(h): prohibits lawyer from limiting liability for malpractice UNLESS

a. Authorized by law ANDb. Client is independently represented by another attorney to make the

agreement to limit liability9. MR 1.8(i): lawyer cannot represent a client where the opposing lawyer is

related UNLESSa. Client consents

10. MR 1.8(j): lawyer shall not acquire proprietary interest in the cause of action or subject matter of litigation BUT lawyer may

a. Contract with a client for a reasonable contingent fee in a civil caseiv. MR 1.9: Conflict of Interest: Past Clients

1. MR 1.9(a) lawyer cannot represent a client in the same or substantially the same matter as a former client if the current client's interests are materially adverse to the former client UNLESS

a. Former client consents2. MR 1.9(b): CHINESE WALL: lawyer shall not knowingly represent a person in

the same or substantially related matter in which a firm with which the lawyer was formerly associated had previously represented a client

a. Whose interests are materially adverse to the current client ANDb. About whom the lawyer had acquired confidential information UNLESS

i. The former client consentsc. Comment [3] Suggests that MR 1.10 imputed disqualification does

NOT apply even though the rule is bright line3. PA MR 1.9 is substantially the same, but PA's version of the Chinese Wall Rule

falls under MR 1.10v. PA MR 1.10(b) provides that

1. IF a lawyer is screened AND2. no portion of the fee is apportioned3. THEN the firm is NOT disqualified provided written notice is given to the client

b. Fees on Terminationi. If client has just cause for terminating the lawyer, the lawyer gets no compensationii. Alternative View: If client has just cause for terminating the lawyer, lawyer still gets

compensated at the contract rateiii. MODERN VIEW: Lawyer gets

1. The contract amount OR2. Quantum Meruit

a. Keep track of your hours3. IF the client loses

a. Courts are split as to whether the lawyer gets anything

17