skaggs ethics spring 2012

LAWS 6301 Spring 2012 Regulation of Lawyers, p.11

Legal Professionalism & Ethics – Spring 2012

Prof. SkaggsCasebook: Lerman, Ethical Problems in the Practice of Law, 2nd edition

Table of Contents

INTRODUCTION & FRAMEWORK.........................................................................................................3

Professionalism................................................................................................................3

An Ethical Framework......................................................................................................3

REGULATION OF LAWYERS..................................................................................................................4

Lawyer Liability (Ch.2).....................................................................................................4Disciplinary Claims: Primary goal of lawyer discipline is protection of the public; (theme: do sanctions achieve this goal?)........................................................................................................................................4Legal Protections for Subordinate Lawyers (Rule 5.2)................................................................................4Civil Liabilities Of Lawyers..........................................................................................................................5

CLIENT CONFIDENCE; A-C PRIVILEGE; A-C RELATIONSHIP....................................................................7

Confidentiality..................................................................................................................7What qualifies as confidential information:..................................................................................................7Consequences of failing to protect confidences:..........................................................................................7Generally......................................................................................................................................................7Use or disclosure for personal gain or to benefit another client.................................................................8

Exceptions to Confidentiality, in Rule 1.6(B):..................................................................8

Attorney-Client Privilege (ch4).........................................................................................9Confidentiality and attorney-client privilege compared...............................................................................9Elements of attorney-client privilege...........................................................................................................9The Crime-fraud exception.........................................................................................................................10Privilege if Client is a Corporation.............................................................................................................10The Work Product prepared in anticipation of litigation...........................................................................11

Attorney-Client Relationship..........................................................................................11Forming lawyer-client relationship............................................................................................................11

Allocation of Authority...................................................................................................12Lawyers responsibility as agents...............................................................................................................12

Duties of competence, honesty, communication and diligence.....................................13Competence – Rule 1.1...............................................................................................................................13Diligence – Rule 1.3....................................................................................................................................14Candid Communications – Rule 8.4(c), and Rule 1.4.................................................................................14Honesty/Candor in counseling: Rule 2.1....................................................................................................14Contractual Duties.....................................................................................................................................14Contractual limits on representation: “unbundled legal services”............................................................14

Who calls the shots.........................................................................................................15The Competent adult client – Rule 1.2.......................................................................................................15Clients with Dimished Capacity – Rule 1.14..............................................................................................15Clients who may have mental disabilities..................................................................................................16Juveniles: Rule 1.14....................................................................................................................................16

Terminating relationship: Rule 1.16..............................................................................17

CONFLICTS OF INTEREST...................................................................................................................18

Conflicts of Interest........................................................................................................18Overview of Conflict Rules.........................................................................................................................18


Concurrent Conflicts – Rule 1.7......................................................................................19Imputation: Rule 1.10.................................................................................................................................20Economic competitors................................................................................................................................20Inconsistent legal positions in litigation: Rule 1.7, cmt 24........................................................................20Family Members.........................................................................................................................................21Insurance companies and insureds: Rule 1.8(f).........................................................................................22Class actions...............................................................................................................................................22“Aggregate Settlements” of individual cases.............................................................................................22

Former Clients—Rule 1.9................................................................................................22

TROUBLES BETWEEN LAWYER AND CLIENT.......................................................................................23

Legal Fees.......................................................................................................................23Lawyer-client fee Ks...................................................................................................................................23Contingent Fees—Rule 1.5(c).....................................................................................................................24Restrictions re: fees and expenses—Rule 1.8............................................................................................24Fee disputes...............................................................................................................................................25Dividing Fees—Rule 1.5(e).........................................................................................................................26Client Property: Lawyer as custodian of client property & docs (Rule 1.15)............................................26

LAWYERS’ DUTY TO COURTS.............................................................................................................27

DUTY TO ADVERSARIES, 3RD PARTIES.................................................................................................35


INTRODUCTION & FRAMEWORKPROFESSIONALISMMon, Jan 23. (Chapter 13, pp. 731-65, 776-82)What does it mean to be “a professional.” Compliance with the ‘letter’ v. fulfillment of the ‘spirit.’ Reality check on career plans

Progress in accepting women in workplace? Asking about plans to have children: has been litigated and held not discriminatory if asked of both sexes

Expectation for Avg billiable hours per year: 2200 billable = 3200 actualo Rule of thumb: 3 hrs in office for 2 billable hours o Erosion of values over time: Analogy of putting a frog in water and turning it on, he will stay in there

until hes cooked vs. throwing him in boiling water he will hop out Problem 13-3 Small Claims (p.778):

AN ETHICAL FRAMEWORKWed, Jan. 25: Aristotle, Kant, Mill & Moore. Guest lecturer Dr. Brian Talbot, Philosophy. [Handout]

Moral / Conventional Distinction: Moral rule trumps conventiono Wrongness of violating conventional rules is wrong because of some dependence on conventions;

would no longer be wrong if society said it was oko If morally wrong, wrongness independent of social convention;

Skepticism about Professional Ethics—An Argument(1) Rules of professional ethics are conventional(2) Conventional rules never override moral rules(3) Thus, whenever morality and professional ethics conflict, lawyers and judges should always do what

morality demands, rather than what the rules of professional ethics say Premise (1): Are the rules of professional ethics conventional?—Yes

o Perhaps the rules of professional ethics are codified moral rules?o Is every act that is permitted by the rules of legal ethics permitted by the moral rules?

e.g., Bring a suit that is not technically frivilous will be so expensive for other side to defend that they are forced to conceed: morally wrong, not legally wrong

e.g., attorney/client issues of withholding information that could set someone freeo Is every act forbidden by rules of legal ethics forbidden by the moral rules?

E.g., judges adjudicate law as required will have moral consequences when practical effect of doing so is denying equal rights to gays

Premise (2): Do conventional rules never override moral rules?o We might have prudential reasons to conform to the rules of legal ethics—Not really, the chance of

getting caught is so low; no incentive for ABA to enforce o Are there moral reasons to adhere to standards of professional ethics?

Good system and rules we have are necessary to sustain that system Even if a rule is completely arbitrary, we still need to pick something for system to work (e.g.,

driving on right side of road) Reason we have that rule is because mass violation of that rule is problamatic

o How strong are the moral reasons to conform compared to moral reasons not to? The system can sustain sometimes breaking the rules. Thus, the fact that the system cannot

survive rampant rule breaking does not explain why you should not break the rules in one particular case

Summary: We have good moral reasons for making the rules of ethics, issue is if in a particular case the situation has strong enough moral consequences to override the conventional system

o Ethics in law school is not meant to teach you moral rules


REGULATION OF LAWYERS

Admission To Practice: Fitness; Prior Misconduct (p.19-38; 45-71. MR: Preamble, Scope note (7-10); 1-1, 1-2.)

Policy IssuesKey words: zealous (CO disclaims “zealousness” to maintain civility), hypothetical, reasonable, substantial, self-regulationProcedure for ethical issue:

1. Research: Does this rule apply?a. Look at the ruleb. Look at definitionsc. Look at commentsd. If needed, review RSTMT, case law, and bar association info

2. Analysis: Talk and think about it clearly. What is the purpose of the provision? How does it affect my client relationship?

3. Action: Decide and act.

State Ethics codes, primary functions:1. Guide lawyers in evaluating what conduct is proper in various situations2. Provide a basis for disciplining lawyers who violate the rules

a. Possible fallouts: lose license, criminally prosecuted, sanctionsb. Overlap between disciplinary actions and other types of law—contracts, torts, etc.

General tips: Look at purposes and policies behind these rules. If you know the rules, you can explain the purpose of lawyers

to your clients and the public at-large. Also evaluate the consequences if you “go with your gut” and disregard the rules.

How to decide whether to disclose: Balance trust and need for candid communication against disclosure. Look at purpose of duty, client’s interest, client’s preferences, other individual interest, public interest, your interest (minimally), effect on your practice, etc.

Set up standards and anticipate potential conflicts.

People v Pautler: prosecutor impersonated public defender; CO rules 8.4(c) and 4.3Lesson to every lawyer—CO Sup Ct set precedent w/this case—noble intent doesn’t justify breaking the rulesException: Rule 4.2 comment 2: in negotiation, certain types of stmts don’t count as stmts of factEthics apply to all lawyers, but do prosecutors have higher standard? Yes, according to Pautler and book. Lesson: don’t overemphasize personal beliefs.

CO Criminal Justice Records Act—Sealing Records

Misconduct

Preamble to MRPC: competent, prompt, and diligentPara 5: addresses lack of civility that exists w/in legal profession—only for legit purposes, not to harass or intimidate, respectPara 7: go beyond rules—apply personal conscience and approbation of professional peers Para 10: self government, although closely associated with gov—distinguish cts/judiciary (that have admin/rule-making functions for lawyers) from congress and execPara 12: public interest vs. self interest tension existing w/in self government of lawyersPara 14: some mandatory (shall), some permissive (may): “No disciplinary action should be taken when the lawyer chooses not to act or acts w/in the bounds of such discretion.”“Comments” are explanatory, not obligatory (rule governs, not comment)Para 16: don’t rely on enforcement mechanisms primarily or secondarily—rely on selves and peers (rules you live by when no one is looking)*Read over preamble several times—what kind of instruction does it provide for interpreting the rest of the rules? Also, don’t skim over the comments to the rules.

LAWS 6301 Spring 2012 Regulation of Lawyers, p.55Regulation of LawyersInstitutions that regulate lawyers: (p.37)

1. State Level: Courts, Bar Associations, Legislatures.a. State Courtsb. State and Local Bar Associationsc. State legislaturesd. Lawyer Disciplinary Agencies

2. Federal Level: American Bar Association, federal courts, administrative agencies, and still responsible to state ethics rules where they practice.

3. Individuals: Prosecutors, Malpractice insurers, Law firms and other employers – internal rules and standards, and Clients – esp. if govt or large corporations

Multiple State Jurisdictions1. Sanctions:

a. Do something outside of state in which licensed to practice = can sometimes be disciplined by authorities in the state where misconduct took place, even if not licensed there.

b. Lawyer who’s admitted in more than one state must report ot other states where she is admitted if discipline is imposed in one state.

c. Lawyer who is sanctioned in one jurisdiction can receive same sanction in any other jurisdiction where lawyer is admitted.

2. Practice: RULE 5.5:a. If temporary: Must be associated w/ another authorized lawyer and reasonably relate to lawyer’s

practice in authorized jurisdiction.b. If permanent: Can be employed but can’t go to ct and must be authorized by federal or other law.

Admission to the Bar: Don’t lie in admission to the bar (8.1).Context: want people in this profession who are trustworthy and of high moral character and responsibility

1. Requirements: a. Graduation from accredited undergrad and law school.b. Submission of application (must be consistent with law school application).c. Good moral character (residence and employment history, criminal records, traffic records, credit

history, any litigation you’ve been a party in). Usually only look at events in last several years. d. Passing score on admissions exam.

2. Character and fitness: how do you judge what character and fitness is?a. Pattern: 1-time or frequent?b. Gravity: streaking or stealing?c. Timing: 10 years ago or yesterday?

3. Once admitted must: continue legal education, pay annual dues, membership in state bar association, and submit/maintain records.

4. Sometimes if admitted to bar in one state and have practiced for a number of years, can gain admission in some other states w/o taking bar.

5. Federal courts have separate bar – usually admit any licensed lawyers hwo apply. 6. EXAMPLES: (misconduct in law school)

a. In RE Mustafa = law student borrowed money from student organization during law school. Law school committee found always intended to repay, but court said that high chance of repeat offense – did repeat once admitted to bar in CA.

b. Erica = Doctored resume, didn’t really speak English but no justification.c. Gowers = Aggressive examination of relatively harmless mental health history.

Procedure: p.76Request to Disciplinary CouncilIf merit, then investigationCan be pre-trial diversion (if temporary, identifiable problem) or If no diversion, then file complaint, file answerHearing—burden of proof = clear & convincing evidence (b/w civil and criminal proofs) Can pursue same misconduct in civil, criminal, and disciplinary forumsHearing Bd makes findings of fact and determine sanctionsCan appeal to state Supreme Ct


Reporting misconduct by other lawyers (Rule 8.3)Examples of misconduct:1. Lawyer neglecting work b/c of substance abuse, personal crisis, or some other problem.2. Lawyer encounters opposing counsel who is deliberately obstructing discovery.3. Judge/lawyer observes another lawyer in ct who is entirely unprepared for a hearing.4. Lawyer might be asked by a supervising att’y to falsify time records.

Himmel rule (100-103)+ from Himmel: caused more lawyers to report wrongdoing- from Himmel: misused to reveal skeletons in closet as a negotiation tactic

NY: law firm rule—discipline entire law firm

Lawyers’ responsibility for ethical misconduct by colleagues and superiors: Rules 5.1, 5.2, 5.3Ex: The Little Hearing—immigration hearings, no trainingSupervisors should implement reasonable steps to ensure following rules like calendars, conflict policies, training, CLEs, supervision of new attorneys, account for client funds

Professional Discipline; Reporting Misconduct– Rules 5.1-5.3, 8.3 (Wed, Feb 1: ch2: p.73-110. 2-1)

Disciplinary Claims: Primary goal of lawyer discipline is protection of the public; (theme: do sanctions achieve this goal?)Grounds for Discipline:

THEME: You can be disciplined for misconduct unrelated to the practice of law (e.g., Nixon) Ex. lawyer who helped friend break into wife’s house, ransacked it, microwaved kitten. suspended indefinitely

could apply for reinstatement in 1 yr. (now reinstated); Effectiveness of such minor sanctions for this kind of act? In re Peters , (Minn. 1988): law school dean sexually harrassed female students that worked for him; how

would this compare if had been done by a practicing lawyer in a firm?; She faced possibility of not being found fit for the bar

Self Regulation—Duty to Report (8.3) Rule 8.3: A lawyer who knows that another lawyer has committed a violation of the Rules that raises a

substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

o Exceptions: 1) Info protected by the confidentiality rules; 2) info obtained while assisting a lawyer who is in a treatment program

Himmel Snitch-Rule: duty to report another lawyer’s misconduct, even if against client’s wisheso + from Himmel: caused more lawyers to report wrongdoingo - from Himmel: misused to reveal skeletons in closet as a negotiation tactic

NY: law firm rule—discipline entire law firmLawyers’ Responsibility For Misconduct by Other Lawyers (Rules 5.1, 5.2, 5.3)

Supervisors should implement reasonable steps to ensure following rules like calendars, conflict policies, training, CLEs, supervision of new attorneys, account for client funds

Rule 5.1: Supervising Lawyers = Must be liable for the unethical acts of lawyers they’re supervising if they direct the act or know of the proposed act and don’t prevent it.

o It’s an independent violation if you’re a partner/highest managerial responsibility, b/c didn’t put systems and processes in place to prevent violations.

o Also independent violation if supervising lawyer, specific project supervisor.o Any lawyer who orders, affirms, or knows of the conduct gets underlying violation, but may also

qualify for (a) or (b). Rule 5.2: Subordinate Lawyers = May be held accountable for unethical actions that they were ordered to

undertake if the supervisor’s instruction wasn’t based on a ‘reasonable resolution of an arguable question of professional duty.’

o To figure out what a ‘reasonable resolution’ is, associate should do research or seek advice.o Can’t just say you were ordered to do it.o If there’s a gray area...reasonableness decided by bar.

Rule 5.3: Non-Lawyer Employees = Lawyers who supervise nonlawyer employees must ensure that employees comply with professional rules of conduct.

Rule 8.4: Violation of rule through the acts of another.


RULE 8.3: If you know someone else has violated an ethical rule (substantial question as to that lawyer’s honesty, trustworthiness, or fitness) must inform authorities.

EXAMPLES:o Little Hearing = (hearings, no training) New lawyer gets hug caseload dumped on her w/o advise from

supervising lawyer. Grossly incompetent so report 5.1 violation on boss.o Consequences of reporting = some states allow lawyers fired for insisting on compliance with ethical

rules to sue for wrongful discharge. Margolick = NY Ct shields laywers that report dishonesty. Firm can be sued for breach of k. Jacobson = opposite result of Margolick. Kelley = associates not yet admitted to the bar aren’t officially attorneys, but it would be

ridiculous to permit these associates to ignore unethical behavior that admitted associates are required to report.

Mon, Feb 6: Protection For Junior Lawyers; Civil and Criminal Liability (Ch2: pp.110-149; Problem 2-2)

Legal Protections for Subordinate Lawyers (Rule 5.2)Tension: between a L’s independent obligation to comply to w/ ethical rules, vs Firm’s right to fire at-will employees for any or no reason ; Dilemma: lawyer must choose btwn continued employment and compliance with rules of ethics

What to do if told to do something lawyer thinks is unethical:o Accept superior’s directionso Argue w/superioro Discuss problem w/another superioro Do more research or investigation to try to clarify the problemo Ask to be relieved from work on the matter, oro Resign/be fired from employment

Whistleblower Protection? (depends on state; firms not governed by SOX) Wieder v Skala (NY): shouldn’t have to choose b/w disbarment or firing: a lawyer’s duty to report is an

implicit part of employment contract with a law firm, so a firm may be liable for breach of contract if fire whistleblower; Ct reasoned that given the role of lawyers as self-regulated officers of the court, the right to fire at-will employees should be read more narrowly

Jacobson (Illinois): duty to report, but firm could still fire (contrary to Wieder): Firm falsely represented venue of debt collection lawsuits; lawyer was fired after third complaint to partner; HELD: Even though firm’s practice violated ethical rules, Ct denied wrongful discharge claim. Reasoned that the duty to report was sufficient protection for the public against unethical behavior by lawyers, so no reason to allow wrongful discharge suits.

Kelly v. H&W (EDNY 1999), p.118: (Scot McKay Wolas Case) Diversity action for breach of K: Firm fired associate and refused to give a good reference after he reported fraudulent billing practices of firm’s “rainmaker,” who ended up being involved in a ponzi scheme. Ct rejects D’s motion for summary jud

o Held (1): A Wieder claim is available for associates not yet admitted to the bar, a violation of rules of ethics may prevent admisison to the bar.

o Held (2): Threat to go to the disciplinary committee is powerful circumstantial evidence of firm’s intent to silence, but it is not dispositive. Fact that firm fired before attorney could overtly threaten to report, does not preclude a Wieder cause of action

PROBLEM 2-2 (p.126): The Photographer. Junior Partner in D.C. for a Texas based firm suspects that a managing partner is overbilling for hours worked for Big National Oil Co. Oil Co has always paid bills and not questioned, also with firm based on relationship with this lawyer. Should you report to Texas partners?

Rule 8.3 language requires evaluating “substantial question” What if client satisfied with legal services renderered, does client have right to waive prosecution? TX Ct finds no fiduciary duty between partners to refrain from firing them; based on notion that people should

not be forced to continue a partnership; esp if don’t get along like partners should

Potential claims against lawyers:1. Disciplinary claims

a. Ethical duty imposed on lawyers to report misconduct of other lawyers (Rule 8.3)b. Issues:

i. Disciplinary agencies are understaffedii. Clients don’t know enough about what’s supposed to happen to complain

iii. Minorities receive more complaintsiv. Sanctions are more punitive than rehabilitative? (Nagel disagrees)


v. Judges less inclined to go thru disciplinary hearing bc may be covered in civil/ crim suit and sanctions may already be awarded—“I’ve done it already, let’s move on”

1. Strickland v. Washington: basic way that crim D can try to overturn ruling—claim that D didn’t have competent representation required by 6th amend and that prejudiced the outcome; “ineffective assistance of counsel” claim

2. Civil claimsa. CRCP 20: regarding att’y discipline b. Legal malpractice: Claim brought against lawyer for prof misconduct that is alleged to have caused harm to

another personi. P must prove that but for lawyer’s misconduct, P would have obtained a + judgment or settlement or that

P suffered some other compensable harm (like fiduciary duty)ii. Malpractice insurance not required, but most do. Doesn’t cover all potential claims. (typical CO lawyer

can expect to face 2 claims for malpractice)c. Tort Claim (E.g. negligence, intentional misconduct): Must assert

i. That lawyer owed duty to the Pii. That lawyer failed to exercise “competence and diligence normally exercised by lawyers in similar

circumstances”iii. That breach of duty caused harm to P (but for)

d. Contract law: breach of Ke. Breach of fiduciary duty (CLAW): f. Agency law (principle bound by agent if had apparent authority, but can still sue A if no actual authority)g. Disqualification for Conflicts of interesth. Other regulatory statutes

3. Criminal claimsa. Fraud: tax, mail, securities

4. Remedies: dmgs, injunction, return of property, alteration or cancellation of a legal doc, etc5. Client protection funds: state-sponsored programs designed to reimburse clients whose lawyers have stolen their money

Wed, Feb 8: guest lecture: Regulation Counsel from CO S.Ct Office of Attorney Regulation Counsel Bar Application Process: err on side of revealing more, not less

o CO application does not ask if you have done illicit drugso Question #43: any additional information that might reflect on your fitness? For ex. if you were

addicted to coke, and didn’t reveal it gives them leverage o DUI is big deal because it goes to real question of do you have a drinking problemo No CO case law on admissions process thus no prescedent, they can deny you for anything

Attorney Discipline Process: anything you do can affect your license o Is there something that needs to be investigated beyond the intake division? if yes, goes to (1)

Diversion System (minor misconduct and lawyer needs to be monitored); or (2) trial and formal proceedings, public censure (serious offenses: appprox 100 out of a total of 4000 calls)

o Standard: Clear and convincing evidence that lawyer is unfit to be licensedo Categories Intake Inquiries

Action on a case – 34% Neglect & Communication – 16% Mishandling funds – 10% (don’t use retainer money before you earn it)

Statute of Limitations on violations of Rules (5 yrs)o Rule 8.3: duty to report “known” misconduct: (no cases in CO)

Tricky because there is an argument that “should have known” but statute requires actual knowledge (but intentionally ignorant may fall under rule)

Malpractice: have to prove damages (dovetails, but not the same thing as discipline system)o CO does not require malpractice insurance (Oregon is only state that requires it)

Client confidence; Attorney-Client Privilege; A-C Relationship, , p.9

CLIENT CONFIDENCE; A-C PRIVILEGE; A-C RELATIONSHIP

Mon, Feb 13: Duty to Protect Confidences; Exceptions - Rule 1.6 (151-164; 205-212; Prob 3-1, 3-2, 3-8)

ConfidentialityRule 1.6 Confidentiality of Information:(a) Shall not reveal any info relating to the representation of a client without: (1) informed consent, (2) implied authorized in order to carry out the representation, or (3) permitted by (b)(b) Exceptions: May reveal information to the extent lawyer reasonably believes it is necessary to:

(1) Prevent reasonably certain death or substantial bodily harm (Spaulding v. Zimmerman).(2) Prevent client from committing crime or fraud reasonably certain to result in substantial injury.

(Does not apply if fraud has already occurred.)(3) Prevent substantial injury to someone else’s financial interests (contentious provision).(4) Secure legal advice about compliance with the ethical rules.(5) To establish defense on lawyer’s behalf in controversy between lawyer or client. (if needed to

collect a fee or to defend against an allegation(6) To comply with other law or a court order.

Basic Principle: Protection of all information “relating to the representation of a client”Purpose: Facilitate open communication b/w lawyers and clients (similar to purpose behind doctor-patient privilege)Asymmetrical rules—can’t tell that client is guilty, but can tell about client to collect fees or defend in malpractice claim (self interest)

What qualifies as confidential information: Covers any information learned in connection with a matter the lawyer is handling, regardless of whether the

info was received from the client or another source.o All info relating to the matter, except info that is “generally known”o Personal info relating to the client that the client would not want disclosedo Info learned from client and from interviews, docs, photos, observations, or other sourceso Info acquired before the representation begins (such as during the preliminary consultation) and after

the representation terminateso Notes or memos that the lawyer creates relating to the matter

Hypotheticals: can use hypotheticals as long as there is no reasonable likelihood that the listener will be able to ascertain the client’s identity or the situation involved (comment 4)

Consequences of failing to protect confidences: Harm client – fail to meet objectives, harm financially or physically, personal embarrassment to the client, other

prejudice ; RSTMT distinguishes b/w disclosure that could harm client and those that could not Subject to professional discipline Liable in tort or K for negligent or intentional breach of duty Disqualified from representation of one or more clients, or Enjoined by a court from further revelation

Generally Restatement § 60: Less strict than 1.6. Prohibits disclosure only if it is reasonably likely that disclosure will

harm the client: (if doing so will adversely affect a material interest of the client or if client has instructed the lawyer not to disclose such info)

What do you tell your clients a/b confidentiality? Catch 22—if you don’t tell them about the exceptions they’ll tell you everything BUT if you have to follow the exceptions it could bite you; If you tell about exceptions, client may be reticent and they are often ambiguous and numurous.

Timingo If financial harm can be past, present, or future client fraudo If physical focus on if act that would cause harm is past or future and severity of harm if lawyer is silent

Ex. Dinner with Anna— line between permissible and impermissible drawn at point of anonymity (if virtually certain listeners could not ascertain client’s identity or situtation involved);

o Take away: however, to honor the rule should exercise self-restraint and resolve marginal cases in favor of non-disclosure

Rule 1.18(b): duty of confidentiality to prospective clients People v Chavez: disqualified when present prosecution is substantially related to earlier case; conflict of

interest (vs. Togstad: competence)—duty of protected confidences even in case of prospective client


Exceptions to Confidentiality— Rule 1.6(b): Gen rule: 1.6(a): SHALL not reveal unless get informed consent or disclosure is impliedly authorized in order

to carry out representation or an exception allowed under 1.6(b) 1.6(b): MAY reveal info relating to the representation to the extent lawyer reasonably believes is

necessary to:” (Note: “reasonable belief”=subjective and objective element; att’y has to believe herself and it has to be plausible to a reasonable att’y

o To obtain advice about ethics/compliance w/Rules – Rule 1.6(b)(4)o To protect the lawyer’s interests (self-defense) – Rule 1.6(b)(5)

self-defense = To establish a claim against a client for unpaid fees; or to To defend against: a malpractice claim, a disciplinary proceeding, or a criminal charge

When? –do not need to wait for formal proceedings; may reveal info to prevent such actions How much can you reveal? – no more than necessary to vindicate the lawyer. Should minimize

number of people, seek a protective order, and take other available steps to avoid the dissemination of the info

Inform client? Notify before and seek solutions that do not require lawyer to reveal, but may use the info even if client does not consent

o To comply with other law or a court order – Rule 1.6(b)(6) Other law trumps professional rules; need to interpret other law (not the rules) to determine

if have a duty to reporto To prevent reasonably certain death or substantial bodily harm – Rule 1.6(b)(1)o FUTURE CRIME/FRAUD: To Prevent the client from committing a crime or fraud that is reasonably

certain to result in substantial injury to the financial interests of another. Only applies if lawyer’s services are allowing client to do something illegal. Just knowing that client did something illegal doesn’t violate. Distinction b/w past (duty of confidentiality applies) vs future (opportunity to prevent—

encourage client to reveal information, but lawyer should try to talk client out of act) crimeso PAST CRIME/FRAUD: To Mitigate, or rectify substantial harm to the financial interests of another.

But if criminal act is past and client has hired lawyer for representation relating to that conduct, lawyer may not reveal information].

lawyers should protect as confidential most information a/b past criminal activity by clients Consider degree of harm & Likelihood

EXAMPLESo Garrow and the bodies = D tells lawyers about evidence of other murders and location of bodies, reveal

to police? Conflict between confidence and health law requiring to say where bodies are located. o Spaulding = D’s lawyers don’t report that their doctor revealed aneurysm (P would’ve gotten more

money). Court says that P should go after his own lawyers for not requesting report or his doctors for not discovering aneurysm.?

Client Frauds o Rules allowing revealing client crimes/frauds to prevent, mitigate, or remedy harm to others 1.6(b)(2)o RULE 1.2(d) = A lawyer shall not counsel a client to engage, or assist a client, in conduct that a lawyer

knows is criminal or fraudulent. Lawyer must withdraw (RULE 1.16). Sometimes might also have to inform someone. The Lawyer must know that act would be fraudulent.

o RULE 4.1(b) = Omissions and half-truths can be fraud, bars lawyer form knowingly failing to disclose a nonconfidential material fact when disclosure is necessary. TURNS MAY INTO A MUST when lawyer herself is assisting in crime.

o “Assisting”: unclear if assisting by silence/inaction counts o “Fraud:” deliberate deception, 1.0(d): “conduct that is fraudulent under substantive or procedural law

of applicable j/d and has a purpose to deceive”. Other Ethical Rules Dealing with Crime and Fraud:

o Dishonesty: Rule 8.4(c).o Duty of lawyer representing an organization to call attention to crimes/frauds: Rule 1.13.o Duty to reveal client crimes or frauds to tribunals: Rule 3.3.o Duty to reveal client crimes or frauds to certain 3rd parties: Rule 3.4.o Duty to withdraw rather than assist client fraud or crime: Rule 1.16.


Rule 1.8(b) Conflict of Interest: Current Clients—shall not improperly use client information to the disadvantage of the client unless the client gives informed consent (so can’t use to benefit another client or for personal gain) Personal Gain: Ex: If representing client in land acquisition, you can’t buy if there’s potential disadvantage to

client – get informed consent in writingo Usually the use of info for personal gain is improper (but not always) (ex. of insider trading)

May use info obtained from one client to benefit another as long as get informed consent or client is not disadvantaged by the use

o Even if it doesn’t look like it could disadvantage your client, double check and have conversation with client to mitigate risk

Potential damage: dmg to biz, reputation, add’l crim charges, potentially upgrade charge (ex. Problem 3-8: An Investment Project: (may have to pay lost profits to client)

Mon, Feb 20: Attorney-client privilege: confidentiality compared; elements; waiver(215-44; 4-1, 4-3)

Attorney-Client Privilege (ch4)Confidentiality and attorney-client privilege compared

Ethical duty to protect confidences Attorney-client privilege

Source Ethical duty, Rule 1.6 Common law evidence rule (Fed Rule of Evidence 503: not enacted, see handout)

Scope Information relating to the representation of a client (obtained from any source)

Narrower scope: confidential communication btwn a lawyer and client for purpose of obtaining legal advice

Method of enforcement

Professional discipline Quash subpoena or otherwise exclude the revelation from evidence (protects lawyers from being witnesses against own clients)

Elements of attorney-client privilege1) A “Communication” between privileged persons

o communication between lawyer and client is privileged, but the underlying facts are not.o The prescence of a third-party during a confidential communication could constitute a waiver of the

attorney-client privilege? But: communications with agents of a lawyer are priviledged (secretaries, paralegals, and

investigators); also a lawyer’s or secretary’s notes are covered interpreters are covered if another person is needed to facilitate communication (e.g., a parent or legal guardian) or to

provide psychological support (e.g., a shrink)o Communications with a prospective client are priviledged o Client identity is NOT priviledged (although law not entirely settled

2) which the client reasonably believes is confidential, ando no privilege for communication that occurs in the presence of other people because the circumstances

of communication are not reasonably private3) whose purpose was to obtain legal assitance

o only the part of the conversation that is for legal advice is priviledged; Business advice and personal advice are not covered by privilege.

o don’t need to bill to create a lawyer-client relationshipo protects communication from lawyer to client and vice versa (including memos)o Documents are only privileged if the documents themselves are lawyer-client communications for the

purpose of obtaining legal advice (e.g., a copy of a contract is evidence and not privileged) If communication is a document, it must have come into existence at the same time as the

client’s first communication with the lawyer (or after)Whats NOT protected by privilege:

Underlying facts covered in the conversation Documents pre-existing counseling Anything the client brings into issue in the court Anything disclosed outside the attorney-client relationship


Problem 4-1: Murder for Hire – speaking in prision, didn’t meet elements of communication in confidence, but still upheld because of practicality reasons (no where else to talk); Confidentiality assumed when speaking in a prison, but lawyer has duty to explain nature of confidentiality during first visit

Waiver of Privilege: privilege belongs to the client. A lawyer may not waive privilege over his client’s objection—Rule: Waiver requires a voluntary act by the client or by an authorized agent of the client

1. Express waiver by client2. Waiver by inaction:

o if attorney doesn’t object and the client answers, it constitutes a waiver by inaction and cannot reverse on appeal

3. Waiver by reveailing privileged communication to a nonprivileged person: o waives the entire privilege; since there is no longer attorney-client privilege, the client, the lawyer, and

the third person can be compelled to testify; o but does not include revelations to clergy, (and in some cases to drs, and spouses)o Privildege is NOT waived if lawyer inadvertently reveals info without being negligento If 2 clients hire lawyer jointly, are considered common clients with a common privilege.

4. Waiver by putting privileged communication into issue5. Waiver as to a conversation by disclosure of part of it: (designed to prevent half-truths)6. Compliance with court orders: (does not waive the issue for purposes of appeal)

Controversial: whether lawyers can waive atty-client privilege for dead clients Rule: Privilege remains in force even after the client dies; but if the right to waive privilege belongs to the

client who is no longer able to exercise it, can lawyer? Balance of black letter law vs. flexibility

o Swidler & Berlin (S.Ct 1998), p.243: Suicide of Vincent Foster: investigation a/b how White House handled firings; PH: Ct of Appeals ordered att’y’s notes be turned over, stating that privilege for a dead client must give way when the infor has substantial importance for an ongoing criminal investigation. S.Ct reversed

Held: Based on common law, Atty-client privilege left intact posthumously b/c of concerns re: reputation, civil liability, or possible harm to friends/family

o Historical exception to privilege when parties contest a will, based on rationale that it furthers the client’s intent;

The Crime-fraud exception No privilege if client seeks assistance w/crime or fraud (similar to except in duty of confidentiality)

o Privileged if client seeks advice whether future act is criminal/fraudulent (cf asking for advice that would help commit the crime vs. asking whether act is a crime)

o Crime-fraud exception does not apply to past acts; but if there is a continuting crime or fraud that results from past acts, no priviledge

o Client’s intention to perform a crime triggers the exception; it doesn’t matter whether they know act is wrongful or not. (but conversation is priviledged if client learns planned conduct is criminal and doesn’t commit the crime)

o Lawyer’s criminal intent is not relevant to privilege.

Wed, Feb 22: Corporate privilege; Work-Product; Forming A-C relationship—Rule 1.18 (244-77; 4-4)

Privilege if Client is a Corporation Corporations have privilege in consulting w/ attorney through agents of a corporation (could include officers,

employees, or independent contractors but not shareholders or creditors) Scope: controversial

o Control Group Test: limits privilege to communications between counsel and senior corporate managers who were members of the “control group”—those responsible with the highest level of decision making (still adopted by 8 states)

o Subject Matter Test: scope of privilege depends on subject matter of the communication, not on who was doing the communicating (fed law and adopted by 14 states, including CO);

Upjohn Co. v. U.S ., (S.Ct 1981), p.245: extends privilege to communications with any lower-echelon employee or agent so long as the communication relates to the subject matter of the representation.

o Rejects control group test for 3 reasons:


it frustrates the very purpose of privilege by discouraging communication of relevant info. In corporate context, its often employees beyond control group who possess the info needed by the lawyers to give sound and informed advice

Need broad privilege because corporate law is complicated and need to be able to go to lawyers to find out how to obey the law;

application of test is unpredictable: some cts hold that control group includes managers of departments and other cts include only corporate VPs

o Elements for Upjohn standard to apply 1) Lawyer must be acting as corporate counsel2) Purose of communication must be to allow counsel to provide legal advice to corp 3) Employees must be aware that they are being questioned for this purpose4) Employees must be aware that converstaions are highly confidential

o Atty must realize he represents corp, not employees w/in corp; Corporate consel are ethically bound to choose the interests of the corporation over those of its constitutients

Deceptive to employee?: refusal to participate in internal investigation is a breach of employee’s duty of loyalty to the corporation; but if in interview, employee implicates himself personally in criminal conduct, may have unknowingly lost 5th amend priviledge against self-incrimination

Governmental requests for waiver of privilegeo 1 ct recognized “selective waiver,” but general rule is if not confidential to 1, not confidential to

anyone; so if give privileged materials to govt, forfeit A-C and work product protectiono McNulty Memo (outlines what DOJ prosecutors can seek): Prosecutors may only request waiver when

there is a legitimate need for the privileged information to fulfill their law enforcement obligations; need more than merely desire or convenicence

Legitimate need depends on: Likelihood and degree to which the privileged info will benefit investigation Can info be obtained in a timely and complete way using alternative means Completeness of the voluntary disclosure already provided Collateral consequences to a corporation of a waiver

If legitimate need exists, step-by-step process requring supervisor approval; May consider refusal to turn over category I info (factual) in decided whether to charge.

o Balancing test: want info, but downsides for public and corporationo Problem 4-4: Worldwide Bribery

The Work Product prepared in anticipation of litigation Protects notes and other material that a lawyer prepares “in anticipation of litigation” from discovery;

Protection of a lawyer’s “mental impressions,” not underlying information/factso does NOT protect materials lawyer creates or collects for other reasonso protects some documents not covered by A-C privilege because do not relate to communications

between lawyer and cliento Usually no protection for documents client turns over unless lawyer can show that their “selection

and compilation” of the documents reflects litigation strategy Not an absolute protection:

o Judge can order disclosure if opposing party shows (1) “substantial need” and (2) is “unable w/o undue hardship to obtain the substantial equivalent” of material by other means

o Stronger protection of lawyer’s mental impressions: need “extraordinary circumstanaces” Origins: Hickman v. Taylor & FRCP 26(b)(3)

Attorney-Client RelationshipForming lawyer-client relationship

Doesn’t require fee, signed K, payment, or ongoing representation Does require competence, diligence, honesty, and communication

o How do you know if you’re competent? See cmts after Rule 1.1 Choosing clients: Lawyer can take on a case in an area of law which he has ltd experience if he compensates

through study or affiliation w/another lawyer and has time/resources to take on the case (Rule 1.1-competent representation)

o Lawyers are allowed to be picky, except


Rule 6.1: lawyers’ duty to provide legal assistance to people who are not able to pay for it (50 hrs pro bono/yr)

Rule 6.2: ct may assign lawyer to represent indigent criminal D, even if ct can’t pay—lawyers must accept unless good cause

Lawyer may not discriminate on basis of race, religion, nationality, sex, age, disability, or protected category in decision a/b which clients to represent

Offering advice as the basis for a lawyer-client relationshipo When a person seeks legal advice or legal services from a lawyer, and the lawyer gives legal advice or

provides legal services, the person may thereby become a client Don’t be cavalier a/b giving legal advice Agreement to pay a fee is not a necessary aspect of lawyer-client relationship

o Three Theories: Tort Theory: A-C relationship is created whenever an indiv seeks and receives legal advice

from an attorney in circumstnaces in which a reasonable person would rely on such advice Negligence Theory: if render legal advice (not necessarily at someone’s request) under

circumstances which made it reasonably foreseeable to the attorney that if such advice was rendered negligently, individual receiving advice might be injured

Contract theory: if no fee, promissory estoppelo Togstad v. Vesely (1980), p.269: P went to lawyer for legal advice, was told there wasn’t a case, and

relied upon this advice in failing to pursue a claim. Ct held that an attorney-client relationship was formed under these circumstances because reasonably foreseeable to lawyer that she would be injured if advice was negligently given. (factors: did not qualify his legal opinion by urging her to seek a secondary opinion, did not tell her that he lacked expertise in med malpractice area

Elements for a legal malpractice action: (1) an A-C relationship existed; (2) D acted negligently or in breach of contract; (3) such acts were the proximate cause of P’s damages; (4) that but for D’s conduct the P would have been successful in prosecution of their claim.

Why require an attorney-client relationship? In the case of purely economic harms, most state negligence law requires a duty owed that arises out of some special relationship

Mon, Feb 27: Lawyer as agent; duties of competence, honesty, diligence, candor; effective counsel—Rules 1.0(d), 1.1, 1.3, 1.4, 1.16(b), 2.1, 6.2, 8.4(c): (p. 279-309; Problems 5-1, 5-2, 5-3)

Allocation of Authority Lawyers responsibility as agents

Agency Law: where one has the authority to act on behalf of the principal (the decision maker); Lawyer is “agent” of client (the “principal”), Thus, Client is bound by what lawyer does or fails to do

Express and implied authorityo Both are “actual” authority: (client bound by lawyer’s actions)o Implied authority: by just asking lawyer to represent him, client implicitly authorizes lawer to take

action that is reasonable and calculated to advance client’s interesto But Certain actions may not be valid unless lawyers have express authority

Apparent authorityo When client tells 3rd party that client’s lawyer has authority to settle a claim on his behalf, 3rd party may

rely on the lawyer’s subsequent actions, even if the client did not actually authorize those actionso Retaining a lawyer may confer apparent authorityo Note: a lawyer’s statement to a 3rd party that she is authorized to act doesn’t constitute apparent

authority; Only the acts or statements of a client (or another principal) can justify reliance by the third party

Authority to settle litigation—states differ on whether by merely hiring a lawyer to represent him in litigation, a client authorizes (implicitly or by apparent authority) lawyer to settle case

o A settlement agreed to by an attorney in open court is binding on the client (policy of protecting adversaries)

o Out-of-court settlments: Client may be bound by implied authority discerned from an extensive course of conduct

Ex. Where apparent authority would not have been enough to enforce a settlment that was reached without the clients actual agreement, client’s departure from room after agreeing to ground rules that someone with authority to settle be present throughout negtoiation along with the words “you handle it” were sufficient to give attorney actual authority to settle case in his absence.

Duties of competence, honesty, communication and diligence


Competence – Rule 1.1 Rule 1.1:. Competent representation requires the legal knowledge and skill, and also the thoroughness and

preparation reasonably necessary for the representation. (see additional comments)o Self-regulatory—lawyers must understand limits, know what they must do to provide competent

representation, and do ito Examine own experience, lawyering skills, complexity of case, available time/resources before taking

on a client ABA’s MacCrate Report (p.280): lists 10 fundamental lawyering skills and 4 values needed before assuming

ultimate responsibility for a client:o 10 Fundamental Lawyering Skills: Problem-solving; Legal analysis and reasoning; Legal research;

Factual investigation; Oral and written communication; Counseling; Negotiation; Litigation and alternative dispute resolution procedures; Organization and management of legal work; Recognizing and resolving ethical dilemmas

Client’s Recourse: may complain to bar disciplinary authorities, file malpractice suit against lawyer, or in criminal case, bring an ineffective assistance appeal

Problem 5-1: The Washing Machine: even where client can’t pay fee, competency rule requires lawyer to do some research. Issue of store’s lawyer offering to settle with a payment plan where monthly payments lower but end up paying more overall. Here, the store’s credit department had actually violated fed collection rules and the case ended up being dropped.

Competence in criminal case: Strickland v. Washington (S.Ct 1984), p.285: ineffective assistance of counsel: crim D challenges conviction based on conduct of his/her atty, 6th Amend (held: Sup Ct denied appeal in death sentencing case. Found lawyer’s decision not to investigate further into character or psychological evidence was reasonable given strategic decision to rely on D’s acceptance of responsibility)

o Sixth Amendment: req that a criminal D be provided with a lawyer whose work meets at least the minimum standard of being “effective (state may provide more protection)

Differs from disciplinary grievance based on incompetence—ineffective assistance of counsel is criminal issue by which D can get case overturned (issue of attorney possbly being disciplined even though client got no recourse)

o STANDARD : 2 prongs to ineffective assistance of counsel (must meet both) (1) Must show lawyer’s performance was deficient

General assumption is reasonably effective assistance of counsel. If challenged/ineffective assistance of counsel, then high level of discretion to lawyer’s opinion to encourage people to represent criminal Ds

o Could attorney have taken multiple reasonable approacheso Atty acting in time (not in hindsight)

Objectively, was counsel’s decision not to investigate reasonable under prevailing professional norms

(2) Prejudice: deprived D of fair trial (i.e., a trial whose result is relaible) Reasonable probability that but for counsel’s errors, outcome would have been

favorable; A reasonable probability is a probablity sufficient to undermine confidence in the oucome

o Marshall’s Dissent: if can prove inadequacy, prejudice necessarily follows (thinks standard is too high, especially in death sentencin cases)

o Std is high: tough for Ds to prevail in these cases, but Ds bring this type of case often

Diligence – Rule 1.3 Rule 1.3: “A lawyer shall act w/reasonable diligence and promptness in representing a client.”

o Comments state lawyer take “whatever measures are required to vindicate a client’s cause” and must act “with zeal in advocay upon the client’s behalf”

o The term “Zealous” was replaced with “diligence” in rule and term “zeal” dropped to comments (concern re: scorched earth litigation and may encourage unethical behavior)

If lawyer accepts responsibility by virtue of making agreements with clients or filing with court, they are NOT excussed from duty of diligence if leave a firm (unless withdraw from representation)

Candid Communications – Rule 8.4(c), and Rule 1.4 Lying vs deception: Is there a moral distinction?

o White lies, to protect people, to protect your own privacy, end the issue? Honesty and communication under ethics rules

o Required to be honest in front of tribunals (Rule 3.3(a)) and third-parties (Rule 4.1)


o Not explicitly required to be honest with clients…just “reasonable communication” under Rule 1.4, comment

Rule 8.4(c): prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation”o If a lie to a client amounts to fraud, depends on the state’s substantive or procedural law (definitions of

fraud vary from state to state)o Even if a lie does not amount to “fraud,” may amount to deceit or misrepresentation and thus be

grounds for professional discipline under Rule 8.4(c) [STOPPED READING]

Honesty/Candor in counseling: Rule 2.1 Can’t exaggerate, lowball, or hide your honest assessment of the case. Lawyer shall exercise independent professional judgment and render candid advice. May refer not only to law

but also moral, economic, social, and political factors. Comment: Legal advice often involves unpleasant facts and alternatives – lawyer shouldn’t be deterred from

sharing advice that could be unpalatable to the client (Legal and Extra-legal advice) Problem 5-3: Torture (important): Office of legal counsel in DOJ wants a memo that gives an aggressive legal

interpration that would protect to maximum extent possible the CIA officials from any future torture protectiono You are reviewing a memo which interprets Anti-Torture law in light of a medicare statute so CIA

could be more “aggressive” in torturing; (concludes: anti-torture statute applies only where an interrogator specifically intends to cause the kind of extreme pain that would be associated with organ failure or death)

o Problems: interpretaion is a strained use of law that has nothing to do with interrogations, misapplies Sup Ct’s Steel Seizure case to argue that law may be unconstit’l if it interferes with president’s power as commander in chief and doesn’t cite; May give interogators an “acting on advice of counsel” defense if every prosecuted

Contractual limits on representation: “unbundled legal services” Rule 1.2(c): can limit scope of representatio “only if limitation is reasonable under the circumstances”

o Need informed consent after consulting about material risks and alternatives Can’t limit allocation of authority in Rule 1.2(a)

o E.g., parties can’t agree that lawyer will ultimately decide how to pleao “Preliminary” invest doesn't mean can be improper still have duty of competence and diligence

(cross reference: Rule 1.8(h): advance waiver of malpractice

Wed, Feb 29: Managing and Ending the A-C relationship—Rules 1.2, 1.4, 1.14, 1.16 (p.309-331, 334-40, 344-50; Problems 5-4, 5-7

Who calls the shotsThe Competent adult client – Rule 1.2

Rule 1.2 and Rule 1.4 allocate decision making b/n lawyer and clients. Rule 1.2: Scope of representation & Allocation of Authority btwn client & lawyer (chart p.311)

o Client determines objectives of representation & Attorney consults with client as to means Jones v. Barnes (US 1983)(p.313): No duty to press nonfrivolous args raised by client;

Attorney decides the means ct reasoning: dilutive effective of adding on too many weak arguments Dissent: the right to defend is personal: ultimately, it is the D and not the lawyer that

will bear the personal consequences of a conviction Balance strategy w/D’s right to defend himself

o 4 particular decisions the Client has the explicit right to make: Civil case: client decides whether to settle Criminal: client decides whether to: 1) plead guilty, 2) waive jury trial, 3) testify

Rule 1.4 - keep the client “reasonable” informed about the “status” of a matter; and explain to extent “reasonably necessary” for client to make “informed decsions” re representation.

Problem 5-4: The Package Bomber, p.321: (Ted Zasinski case) D justified mailing bombs to prevent what he saw as a greater threat to socieity from ever-advancing technology. strong chance get death penalty; Client expressly objects to a mental-status defense

o Three options:


Option 1:” allow D to try and persuade jury bombings were necessary, likely to fail and he will get death penalty; or

Option 2: Despite client’s objections, try to persuade judge to order psych eval note trying to divest client of power to make a key strategic decision; when he learns

of this will probably fire you Option 3: compromise: convince D to submit to psych exam by falsely telling him you will not

use results during “guilty” phase but only during “sentencing” Misleading: he may agree to this but only because he thinks he will be acquitted and

so psych eval will never come out Rule 1.4o Rule 1.2: client’s objective = persuade jury bombings were necessary; att’y’s obj = avoid death penalty;

client has ultimate authority re: objective (6th Am: rt to assistance of counsel) contradictory objectives: should your objective to save his life > client’s objective to die rather

than have mental health defense imosed on him (secondary issue of what Prof. Mello calls state assisted suicide)

Client’s Rt to FIRE Att’y: almost always allowed except if on eve of trial, would cause “undue delay”

Clients with Dimished Capacity – Rule 1.14 (a) Reasonably maintain a normal client-lawyer relationship (b) Reasonably necessary protective action

o when lawyer reasonably believes the client: (1) has diminished capacity, (2) is at risk of substantial physical, financial, or other harm unless action is taken, and (3) cannot adequately act in client’s own interest, the lawyer may:

1) consult with indiv/entities that have ability to take action to protect client and 2) may seek appoint of a third-party guardian who would make some legal decisions on

behalf of the client o Rule 1.6: when taking protective action under 1.14(b), lawyer is impliedly authorized to reveal info

about client, but only to extent reasonably necessary to protect the client’s interest Factors for assessing client’s mental capacity (1.14, comment 6): balance

o Client’s ability to articulate reasoningo Variablity of state of mind and ability to appreciate consequences of a decisiono Substnative fairness of a decision, and o Consistency of a decision with client’s known longer term commitments and values

Class Hypo: Right to refuse medication? Prof had a client that was being forced to take pysch medicine against his wishes. obviously nutso but Prof decided to advocate for his right to refuse based on client’s ability to accept alternate consequence of treatment in facility without medication

Clients who may have mental disabilitiesOptions:

1) Follow instructions and treat client as competent (anti-paternalism)o Intervention may be appropriate in order to achieve what client’s actual enduring values, if:

(1) client’s competence has failed, (2) client has chosen a course of conduct contrary to his values, and (3) that in fact client would choose differently if he were competent

2) Impose own ideas (de facto not norm anymore, only in emergency)3) Invite others to substitute guidance (note: ct has to appoint, can take away atty-client trust)

o Guardian ad litem: empowered to speak for the client in a particular legal matter (even contrary to client’s expressed wishes)

Best to have GAL and atty working together—atty speaking for client’s expressed wishes; GAL for best interest

o Conservator: power to manage financial affairs of the client, who thereby loses the power to buy, sell, or hold property

o Guardian: ct appted, effectively is the person; manages client’s financial affairs and may make medical and other personal decisions for the client (can be limited based on nature of incapacity of client)

Reliance on family members > lawyer authority b/c more accurate gauge of substituted judgment, less expensive, less permanent, fewer ethical conflicts

o Power of atty: not appointed by ct; appts an agent to deal w/whatever’s listed in POA—includes closing on a house, financial decisions, etc. for person who has not yet lost capability of doing action himself


Typically for particular purpose or in anticipation of problem (elderly); retain ability to act and to revoke; can often be abused (e.g., elder exploitation—adult child spending elderly parents money in child’s own interest rather than parent’s)

Juveniles: Rule 1.14 Rule 1.14 applies same standard to minors as it does to adults with mental impairments

o Young ≠ diminished capacity necessarily; assume regular capacity at first Delinquency cases: similar to criminal cases, lawyers follow norms of representing adults

o Young children are empowered to set the objectives of their criminal case to same degree as an unimpaired adult

o “Lawyers for children need to be particularly good communicators . . . sensitive to the risk that their clients will put too much faith in their advice . . .”

Custody, abuse, and neglect proceedings o Rule 1.14, Comment 1: children as young as 5 or 6 are regarded as having opinions that are entitled to

weight in legal custody proceedingso However, less shaped by traditional A-C relationship than in delinquicy cases, children may have fewer

rights, child may not have their own lawyer in custody caseso ABA, Stds of Practice for Lawyers Representing a Child in Abuse & Neglect Cases

Child’s attorney: Same duties of loyalty, confidentiality, and competence child is a separate individual with an independent voice

Guardian ad litem—often appointed by the court; protect child’s interest wihtout being bound by child’s expressed preferencess

Representation of child’s expressed preferences—may not advocate contrary to child’s express interest unless it would be dangerous

Duty to explain to the child in a developmentally appropriate way such information as will assist child in having maxiumum input

Problem 5-7: The Foster Child: Should you advocate for a particular placement?

Terminating relationship: Rule 1.161. Must withdraw if:

Lawyer is fired by client Representation will require lawyer to violate MRPC or other law Atty’s physical or mental condition materially impairs atty’s ability to represent client

2. May withdraw if its possible to do so without material adverse effect on client’s interests - 1.16(b)(1)

o in matters of litigation, usually need permission of the court that is to hear case 1.16(c) C persists in action involving A’s services that A reasonably believes is criminal or fraudulent Repugnant/fundamental disagreement Client doesn’t pay lawyer’s fee (with prior warning) Unreasonable financial burden on lawyer Client will not cooperate: makes continued representation by lawyer “unreasonably difficult” Other good cause

3. Duties to client at conclusion of the relationship: Rule 1.16(d) and cmt 18 Rule 1.16(d): when work is finished, must return “any papers and property to which the client is entitled;” Duty

to protect client confidences continues indefinitelyo Restatemet §46 is more specific: (1) on request, must allow client to inspect and copy any document

possessed by the lawyer relating to the representation and (2) lawyer must deliver promptly after representation ends, any documents as client reasonably needs, unless substantial grounds exist to refuse.

May refuse to disclose law-firm documents reasonably intended only for internal review If a client as not paid the bill, may keep documents that the lawyer created for the client, unless retention

would “unreasonably harm the client” Rest §43

Conflicts of Interest, 19

CONFLICTS OF INTEREST

Mon, Mar 5: General principles; conflicts between current clients—Rule 1.7, 1.10 (p.351-77; 6-1, 6-2)

Conflicts of InterestOverview of Conflict Rules

Concurrent conflict: Rules 1.7, 1.8, and 1.18: conflict btwn two present obligations of a lawyer Successive conflict: Rules 1.7, and 1.9 Imputed conflict: Rule 1.10 Conflicts for present and former government lawyers: Rule 1.11

Policy Objectives: Benefits (arg for construing rules narrowly)

o duty of loyalty to client o don’t want to put confidential information at risko lawyer impartiality and protection of adversarial system

Cost (arg for reading rules loosely)o Availability of counsel of client’s choiceo Economic liberty of lawyerso Prevent tactical misuse of disqualification motions

RSTM: consider Effect of conflict (what harm is the rule trying to prevent) Significance/extent of potential harm Objective reasonableness standard

General Principles: Conflicts can sneak up on you—not just at beginning of atty-client relationship Many conflicts can be resolved by obtaining informed consent of the clients affected, but you have to recognize

that a conflict exists first Conflicts with whom: Can involve tons of people: current clients, past clients, prospective clients, changes in

clients biz relationships, other lawyers in your firm, new associates, 3rd parties, etc. need systems in place to identify persons/issues involved to identifying conflicts, cmt 3 Another issue occurs w/firm mergers and lateral moves of lawyers Rules are broad and fuzzy and don’t provide definitive answers (but what part of the law isn’t?) Consequences of representing a client in the face of a conflict

o Legal sanctions: disqualification, discipline, malpractice liability, injunction against representation (transactional case), fee forfeiture

o Business: client may fire you or mistrust you; harm to professional reputationPossible solutions when a conflict arises

May need to withdraw Decline to represent a new client, May proceed despite conflict, if conflict is “consentable” (i.e., waivable) Remedy conflict by agreeing to limit scope of representation or impose a “screen” between conflicted lawyers

Concurrent Conflicts – Rule 1.7

4-Step Analysis: how to evaluate current-client conflicts (Rule 1.7, cmt 2): Lawyer must

Step 1: Clearly identify client(s) and matters on which firm is representing them; and determine whether each is present or former

Step 2: Determine whether a conflict of interest existsStep 3: Decide whether lawyer is permitted to represent the client despite the existence of a conflict (i.e., is

conflict consentable)Step 4: If so, consult w/affected clients under para (a), obtain their informed consent, and send written

confirmation to the client of the informed consent.

Rule 1.7: Is there a conflict? – Two types of concurrent conflicts:

1) Direct adversity: if lawyer’s conduct on behalf of one client requires the lawyer to act against the interests of another current client – MR 1.7(a)(1)

o If one client files a lawsuit against another client (can be unrelated matters);


o Cross-examining a current cliento Representation of co-plaintiffs or co-defendants in civil litigation

Ex: Injured passengers: Reema’s settlement > Jill’s settlement Must tell clients a/b settlement Must tell clients a/b changes in circumstances that reqs informed consent

2) significant risk of a material limitiation on lawyer’s ability to represent another client..o other relationships include: another client, a former client. someone else to whom lawyer owes a duty

(e.g., fiduciary), someone besides client is paying fee; lawyer’s own interestso Material limitation: A “mere possibility” of harm is insufficient to present a conflict; Ask:

1) How likely is it “that a difference in interests will eventuate”? and, 2) if such a divergence is likely, would it “materially interfere” with the lawyer’s advice to or

representation of a client? –cmt 8

If a conflict exists, is it consentable? – Can consent if: (all 4 elements must be met)(1) Lawyer reasonably believes (objective) that lawyer will be able to provide competent and diligent

representation to each affected client NOTE: Consider adverse effects on relationship and representation. Are matters factually interrelated? Joint representation w/divergent interests? 2 current or 1 current & 1 former? If only former client impacted, consentable Friendship/bond of professional loyalty toward 1 of clients? Sophistication of client

(2) Representation isn’t prohibited by law (3) Can’t represent opposing parties in same litigation, even if clients consent.

ex. cant represent both husband and wife in divorce)(4) Each affected client gives informed consent, confirmed in writing (impresses the seriousness of the

decision on the client). Informed consent: defined in Rule 1.0 Lawyer must orally explain risks, advantages, and possible alternatives to lawyer proceeding

w/representation If disclosure of confidential information about A is necessary for client B to understand the nature

of the conflict, need to get A’s permission. If A declines, lawyer may NOT proceed with the representation because will not be able to

obtain informed consent from client B Advanced waivers sometimes enforceable

Withdrawal and disqualification (Rule 1.16)

Imputation: Rule 1.10 Firm of lawyers essentially =1 lawyer re: rules governing loyalty to the client; So if one lawyer has a conflict,

then so do all the other lawyers in the firm Def. of a “firm”: imputation of conflicts to all lawyers in same firm, even if in offices in different countries

o Separate pracities/shared office: maybe if file mgmt and communication might permit access to confidential info

“Screening” off conflicted lawyer to allow law firms to prevent a conflict of one lawyer from being imputed to other lawyers. (15 states allow as an alternative to client consent (MR does not)

Imputation rules do NOT apply to conflicts presented by paralegals, law clerks, externs, etc.Problem 6-1: The injured passengers, scene 1

Why would passengers want same lawyer? Personal injury tends to be contingency fee, so cheaper—share of atty would be less; some costs may also be lower…

Not directly adverse—same interest, same side (but there could be even if no cross claim; contributory negligence?)

But significant risk that representation of 1 or more clients will be materially limited b/c injuries were so different and there’s likely a cap on cab’s insurance policy; also issues keeping confidences potentially b/c of joint representation

Communicate w/clients potential risks and possible alternatives In addition to consent, get a “prenup” for future waiver

Problem 6-2: I thought you were my lawyer! (suing current clients) Case 1: DH (your client) v. Bus company Case 2: Husband (your client) v. DH


Conflicts between current clients; economic competitors; inconsistent positions; prospective clients. (pp. 378-81, 383-88; Problems 6-3, 6-5); Ch7: Rep. both parties; rep. organization; rep. criminal co-defendants— Rules 1.7, 1.13 (pp. 391-415; Problems 7-1, 7-2) [DIDN’T READ]

Economic competitors Rule 1.7, cmt 6: “simultaneous representation in unrelated matters of clients whose interests are only

economically adverse...does not ordinarily constitute a conflict of interest...”o But may be breach of atty’s fiduciary duty (CLAW) to represent conflicting interests

Representing the competitor of a former cliento Maritrans: Chinese wall defense (Rule 1.11); normally business competition isn’t a conflict, but

different b/c they’d learned so much about 1 client that it would be materially adverse to original client to take on competitors; Fiduciary duties

Inconsistent legal positions in litigation: Rule 1.7, cmt 24 Positional conflict: lawyer making inconsistent arguments on a legal issue in different courts at different times

w/o running afoul of the conflicts ruleso Generally not enough to disqualify you—inherent in the businesso But Conflict exists if significant risk that one position will materially limit client in another case—if one

precedent will strongly affect next case Consider (RSTM §128, cmt f)

o Trial or appellate ct?—if same j/d where precedent is binding, then may be an issueo Substantive or procedural?o Time b/w matters?o Practical significance of issue to immediate and long-run interests of clients involvedo Clients’ reasonable expectations in retaining the lawyer

Problem: Top Gun: Represent city pro bono on case claiming gun sales are public nuisance, also represent pharma co that may be affected by precedent or credit rating will be hurt

Mon, Mar 12: guest: Omar Ashmawy, Chief Counsel, Office of Congressional Ethics; Major, Air Force JAG, Office of the Chief Prosecutor, Office of Military Commissions (U. S. N. B. Guantanamo Bay) where he prosecuted U.S. v. Hamdan

Fundamental Flaw: more concern with the political consequences than with the legal consequences (politics being mixed in and tainting process of law)

o Problem with process: lack of understanding regarding fundamental ethical lawyer environment (e.g., ordering search of detainee’s mail resulted in breaking lawyer-client confidences, problem was there was no process to weed this out)

Ethical Problems:o 1. Can’t rely on due process o 2. Evidence issues (hard to get access because of confidentiality)o 3. An outranking official telling you want to do as a lawyer unlawful command influence (normally

in ct. marshall setting this would lead to case dismissal, prob here was defense wasn’t even aware) attorney’s forced to charge with offenses they didn’t think fit

Attorneys responses to ethical issues: some ignored, some left (one guy who left in very public way, putting out press release case actually being dismissed)

Problem/Ex: o Major David Frakt (USAF) was assigned to represent Mr. Ali Al-Bahlul, an alleged terrorist, in a trial before a

military commission at Guantanamo Bay, Cuba. Al-Bahlul faced a possible sentence of life in prison, but he did not recognize the legitimacy of the tribunal, did not want to participate in all of its proceedings, and told Frakt that he did not want Frakt or anyone else to represent him. Despite Al-Bahlul’s statements to the court that he did not want Frakt to serve as his lawyer, and Frakt’s statement that he wanted to respect Al-Bahlul’s wishes, the judge ordered Frakt to represent Al-Bahlul. Frakt went to court and sat at the table for defense counsel. As the trial began, the government began to introduce evidence that was subject to the objection that it was inadmissible. If you had been Frakt, what would you have done? Would you have attended the court proceedings? Sat at the counsel table? Objected to prevent the admission of evidence that could have been excluded if objected to? Cross-examined the prosecution’s witnesses?

What attorney did?: protested proceedings by sitting there and not saying anything Result: convicted of all charges and sent to life in prision Twist: if had actually litigated case, they could have brought it as death penalty case, which is what D

really wanted (to be a martyr)


Wed, Mar 14: Rep. family members; rep. ins. co’s.; class actions; settlements—Rules 1.7, 1.8(f) & (g) (p. 416-33; Problem 7-3); Former clients—Rules 1.7, 1.9 (p. 435-59.; . Problems 8-1, 8-2)Family Members

Representing both spouses in a divorceo If both parties want to get divorced and have no disagreement a/b child custody or property division,

then maybe only technical rather than actual adversity (some states)o Some states forbid lawyer from representing both in the suit for divorce, but permit lawyer to assist

both parties in preparing a settlment agreement, as long as clients agree and resutling settlment seems fair

o Other states forbit representing both in any divorce action, even with consento Examine if there are issues that might lead to conflicts:

Kids Assets Financial differences Personal conflicts—longer relationship w/one client?

Representing family members in estate planningo Potential probs: one spouse has a secret, one spouse wants to disinherit a child, etc—confidence issueso Florida Bar Opinion 95-4

“Separate confidence”: Lawyer represents both spouses in wills. Husband uses another firm to add codicil benefiting woman/extra-marital affair; lawyer must withdraw from joint representation b/c conflict of interest; Tension b/w duty of confidentiality and duty to inform—joint interest destroyed

Issue of tension between duty to protect confidences vs. duty to communicate to client relevant information

o Problem 7-5: Representing the McCarthys: Way case was decided by NJ ct: had to disclose the existince, but not the name of the illigitmate

child.Insurance companies and insureds: Rule 1.8(f)

Rule 1.8(f): Lawyer shall not accept compensation for representing a client from a 3rd party unless o informed consent, o no interference w/ lawyer’s independent judgment, and o information relating to representation is protected under Rule 1.6

Who is the client of the insurance defense lawyer? The insured, not the insurance company If K sets it up that atty represents both insurance co and insured, atty has to withdraw What does lawyer do if conflict arises b/w insured and insurer? Act in best interests of insured Problem: Two Masters: both insurance company and client

Class actions Potential conflicts include:

o A greater concern for the interests of the class reps than for the unnamed memberso A prior relationship with the named defendants in the class actiono A greater concern for receiving a fee than for persuing the class claimso Settlement of claims by collusion rather than a fair process where class members’ intersests are

adequately represented Class action may be a proper strategy if: 1) client concerns and desired remeides are more common than

conflicting and 2) claims too small to justify cost of individual litigation. Rst §128, cmt. D Rule 1.7 and 1.9?: unnamed defendants not considered clients for purposes of Rule 1.7(a)

“Aggregate Settlements” of individual cases An “aggregate settlement”: involves multiple plaintiff’s claims against a common defendant, such large-scale

multiparty litigation generally settle in clusters. Rule 1.8(g): can’t do unless each client gives informed consent, in writing. Disclosure shall include the

existence and anture of all the claims or pleas involved and of the participation of each person.o Must communicate directly with each cliento Disclose total amount of settlemento And explain to each client what share of the settlement others are to receive.o Must also disclose amount of fees and costs lawyer will receiveo Must also obtain informed consent to share confidential info among them


Former Clients—Rule 1.9Step 1: Is this a former or a present client? Which rule applies?

If a present and former client’s interest conflict, lawyer should refer to Rule 1.7 for guidance on protecting the current client’s interests, and look to Rule 1.9 for how to protect former client

Duty to former clients: primary duty is to protect their confidencesProblem 8-1: Keeping in Touch: Passage of time is a relevant consideration in determining if still a client

Analysis: having decided they are a former client…

Mon, Mar 19: Former clients, cont’d—Model Rules 1.7, 1.9, 1.10 (p. 459-481; Problems 8-3, 8-4.MISSED CLASS

TROUBLES BETWEEN LAWYER AND CLIENT 24

TROUBLES BETWEEN LAWYER AND CLIENT

Wed, Mar 21: Fees and billing—Model Rules 1.4, 1.5, 7.1, 8.4 (p.483-527; Problems 9-1, 9-2)Billable Hours: he thinks 30 hrs per week is a good week (=1500 a year: 50 weeks) - His firm policy: 1900 min, w/400 professional hours (increment: .10th of an hour (6 min))Legal FeesLawyer-client fee Ks

Types of agreements: Bill by the hour; Contingent fees (% based on damages collected); Other Methods: Flat fees; Fee schedules (specified fees for particular tasts)

Fees must be REASONABLE – Rule 1.5(a): o 8 Factors in determining reasonableness (Rule 1.5(a))

(1) Time, labor required, novelty and difficulty, requisite skill needed(2) Likelihood that acceptance will preclude other employment (client must know this)(3) What is customarily charged for that particular service(4) Amt involved and results obtained (5) Time limitations – imposed by client or circumstances(6) Nature and length of the professional relationship (7) Experience, reputation, and ability of the lawyer(8) Whether the fee is fixed or contingent

*Reasonable fee factors are hard to apply—better to communicate with client along the way to make sure “reasonable”; keep records of how much time spent and what done; main factor is usually norms in local legal community and similar practice

Brobeck, Phleger & Harrison v. Telex Corp ., (9th Cir 1979), (p. 490): $1M min contingent fee for filing a petition for certiorari was reasonable; Ct upheld fee arrangement based on contract law as neither excessive nor unconscionable.

o Ct. Reasoning: Although minimum fee was clearly high, Telex received substantial value; furthermore, they wanted best attorney could find and insisted on a contingent fee arrangement despite lawyer’s usually hourly based

o Factors for unconscionability: did one party take advantage of another’s ignorance, exert superior bargaining power, or disguised unfair terms in small print.

o Issues of contract ambiguity: should the fact that ambiguity is interpreted against drafter be a factor in reasonableness; also Telex had their own lawyer in negotiating K arrangement

In re Fordham (Mass 1996)(p.496): excessive fee ($50k) in DUI case unreasonable; Inexperience in criminal defense work cannot justify the extraordinarily high fee, Issue: Can a lawyer charge for extra “study time” spent on a case to learn an area of the law?

o PH: Disciplinary Hearing committee held not clearly excessive because client went into relationship with “open eyes”, lawyer within safe harbor, and Client acquiesced to fee by not strenuously objecting to bills.

o Safe Harbor Rule: if lawyer contracts to bill by hour, and honestly and diligently works the actual number of hours billed, resulting fee should be reasonable.

Objective standard: for determining if excessive (here, spent 20-30 hrs cf. to norm for DUI case, cf to 227 he spent)

Does not require fraudulent billing (here, fee found excessive even though lawyer was not lying about amount of hours worked)

Accquiescence irrelevant: test is whether fee charged is clearly excessive, not whether the fee is accepted as valid or acquiesced in by client.

o Holding: Safe Harbor not appropriate here: amt of hours spent to educate himself and to represent client was clearly excessive despite good faith and diligence.

not entered into with “open eyes”: although arrangement fully disclosed including lawyer’s need to become familiar with area of law, he didn’t give estimate of total expected fee and did not seem to understand implications of hiring him.

o safe harbor: amt of time to educate self on legal issue compared to good faith & diligenceMon, Apr 2: p. 527-61. Model Rules 1.5(c) - (e), 1.8(a), (c)-(j), 1.15Fees and billing; other issues. Problems 9-3, 9-4.

Contingent Fees—Rule 1.5(c) Policy: The rules treat contingency fees more strictly than hourly fees. Two reasons:

o Temptation for lawyers to settle too quickly and too cheaply to avoid putting in extra work and move on to next client


o Financial stake in client’s recovery incentives unethical tactis to maximize recovery Policy: Arguments in favor of contingent fee arangements:

o Allow access to justice for non-wealthyo Aligns interests of lawyer and client

Policy: Why are they not allowed in divorce or criminal cases? o In divorce lawyers traditionally obliged to encourage couples to reconcileo Criminal context: conflict of interest (e.g., if lawyer’s fee contingent on acquittal but client offered a

better plea deal arrangement); also vulnerable clients may accept excessive fee agreements (agree to higher fee thinking outcome unlikely)

Rule 1.5(c): (more specific disclosure requirements): o Must be in writing

Signed by client State method by which fee is to be determined, including %s in all hypotheticals, (eg. If

settlement, trial or appeal) and whether expenses are deducted first or not Must include other expenses client liable for even if don’t win When ends, give another statement in writing explaing charges and how calculated

Must you deduct legal expenses before calculating lawyer’s fee? Doesn’t matter a long as you disclose how you intend to calculate the fee

No limit on max %, but must be reasonable (1.5(a)); o But look to other laws: Some j/ds impose a ceiling on % that may be charged o Policy: are high fees fair?: justified because compensates for the lawyers risk and helps cross-subsidy

to maintain viable practice (Norm is 1/3) Prohibited from charging contingent fees in criminal and domestic relations cases Rule 1.5(d)

o But after divorce has been granted, may charge contingent fee to collect past due alimony or child support. 1.5, cmt 6

Restrictions re: fees and expenses—Rule 1.8 Buying legal claims (Rule 1.8(i)): lawyer may not acquire proprietary interest in the subject matter of

litigation the lawyer is conducting for a client Financial assistance to client (Rule 1.8(e))

o Purpose: Prevent lawyers from having too big a stake in the outcome of litigationo Exceptions:

1) May advance court costs and expenses of litigation, & repayment may be contingent on outcome of litigation

2) May pay ct costs and litigation expenses of an indigent cliento Problem 9-3: Impoverished Client: lost job no money to pay rent or eat; can’t give to

client—rent/groceries/ phone; can pay ct costs or expenses of litigation (cell phone or clothes for court may qualify as ct expense)

Policy: if lawyer offers to pay client’s living expenses while suit is going on, client might pursue a frivolous suit to obtain offered financial support (R. 1.8, cmt 10)

Publication rights (Rule 1.8(d))—may make a deal after case is over, but intent is to prevent lawyer from working against interests of client to prolong/publicize the case

o Does not restrict lawyers representign clients in book or movie contracts where the book or movie is not about a case handled by the lawyer (R. 1.8, cmt 9)

Advance payment of fees & nonrefundable retainer fees—Advance is deposited in lawyer’s client trust account, and lawyer withdraws portions of the advance as they are earned

o Unearned portion of advance must be returned to client (Rule 1.16(d): but note: you don’t have to tell client that)

Non-refundable retainers—goes against public policy and client’s rt to fire attyo Lump-Sum/ Classic Retainer: earned when it is received; reasoning: payment secures lawyers

availability but does not depend on performance of any particular task; thus lawyer may have to forgo other obligations to maintain availability

Fee disputes (p.534-40 likely on MPRE) Limiting Malpractice Liability—Rule 1.8(h)

o Lawyer can not prospectively limit liability for malpractice; unless client has independent legal representation in making that agreement (Rule. 1.8(h)(1))

So impractical to include a waiver of malpractice liabilit in K for legal services.


o If a lawyer and client want to settle a malpractice claim client does not have to be seperately represented as long as:

(i) client is advised in writing of that it's a good idea to seek advice from another lawyer before making such a settlement;

(ii) and is given a reasonable opportunity to consult another lawyer (Rule 1.8(h)(2))o Hypo: what if you miss a ct deadline and client has good claim for malpractice. What do you do? Try to

get mercy of court, but can’t charge for extra time spent on fixing mistake If can’ t get it fixed and client has good claim (say, because client’s now barred by statute of

limitations), how do you protect yourself? Partnership Organization for limited liability

o General Partnership (GP): each partner is vicariously liable, joint and severally, for malpractice of other partners or lawyer-employees

o Limited Liability Partnerships (LLP): one partner is liable for his own conduct and that of others he supervises but is not vicariously liable for conduct of his partners

Rule 1.18: LLPs are allowed as long as each partner remains personally liable to the client for his own conduct

Fee Arbitration: o Bar Assoc has established committees to intermediate over fee disputes (Rule 1.5: cmt says if

mandatory, must comply; if process is voluntarily, urged to “conscientiously consider submitting to it”)o Binding Arbitration Clauses: ABA Ethics Committee says they are okay as long as: (1) Client is carefully

advised of the advantages and disadvantages, (2) Gives incormed consent, and (3) Clause does not otherwise insulate lawyer from liabilty

Ex. client needs to be told that waiving right to a jury trial, some discovery rights and right to appeal (some j/d require independent counsel)

Collection of Fees: may withold documents prepared by lawyer for which payment has not been received, but only if doing so will not unreasonably harm client (ch5, Rst §43, cmt c)

o If regularly engage in consumer debt collection activities, subject to the Fair Debt Collection Practices Act: cant make false or misleading representations or engage in abusive and unfair practices (subject to civil liability) (State consumer statutes may also apply)

o May obtain lien on client property (one of the exceptions in Rule 1.8(i)) State law authorizes liens (by statute, common law or by contract) If lien acquired by contract, then constitutes a business transaction with a client and is

governed by Rule 1.8(a): 1) Terms must be fair and clearly explained in writing, 2) written encouragement and chance to seek advice from independ. Lawyer

Lawyer withdraws/fired before matter is completed: issue in contingent fee arrangements; if fired or justified in withdrawing, compensation on a quantum meruit basis (equitable assessment of value of work done); (Rule 1.16(b) lists reasons why lawyer would be justified in withdrawing)

Dividing Fees—Rule 1.5(e) Rule 1.5(e): may divide fees between lawyers not in the same firm only if:

o (1) division is in proprotion to the services performed by each lawyer or each lawyer assumes joint responsibility;

o (2) client agrees to arrangement, including the share each lawyer will receive, and agreement is confirmed, in writing

Writing Req: written confirmation (don’t necessarily need client signed writing)o (3) total fee is reasonable

Referral Fees: referring lawyer must take on “financial and ethical responsibility for the representation as if the lawyers were associated in a partnership” (cmt 7);

o duty of superv. bc both referring and receiving attys responsib for each others violationso If referring lawyer plans to do some work on the case and divide fee proportion, responsible for their

work but not case as a whole Can’t share fees with non-lawyers. Rule 5.4(a)

o Can pay salaries or bonuses but can’t routinely divide profitso Purpose to maintain a lawyers indepndent judgment from being influenced by nonlawyerso “Runners” to find accident victims?: No except can pay referral service for making info available about

their practice Fees paid by Third Party: only if (1) client consents after advised, (2) 3rd person does not direct lawyers

decsisions or otherwise interfere, and (3) can’t share confidences w/ 3rd person. R 1.8(f)


Client Property: Lawyer as custodian of client property & docs (Rule 1.15) Client trust accounts: bank acct in which lawyer keeps funds that belong to various clients

o Must keep money for clients separate from lawyer’s own property: 1.15(a) Acount maintained in state where lawyer’s office is (or elsewhere w/ client consent) Property other than money must be “appropriately safeguarded” “Complete records” for period specified in state rules

o Lawyer can’t deposit own fundso Commingling is most grave and grounds for disbarment; can be disciplined even if done

unintentionally, no funds lost and even if mental capacity comprimised by illness Responsibility for client property

o Prompt delivery of funds or property (1.15(d)) Must notify client and promptly pay Upon clients request (or party with an interest in fund), must provide record of amt received

and how much paid to whom Disputes about money or property in lawyer’s possession (1.15(e)) If dispute, distribute undisputed portions of settlement and keep disputed portion in client trust Lawyer’s responsibility to client’s creditors (1.15 cmt) If 3rd party has lawful claim against funds that are in the lawyer’s custody, lawyer might have some obligation

to the 3rd party BUT lawyer is not a collection agency for client’s creditors Administering estates and trusts—lawyer may accept appt as executor of a client’s estate, not prohibited

from receiving sums for services in settling estates. BUT lawyer must advise client according to Rule 1.7 a/b what happens when lawyer acts as executor

Wed, Apr 4: p. 563-91. Rules 1.11-1.12 Conflicts issues for govt lawyers; judges. Prob 10-1-2. [NO READ]Chart on chalkboard: Category –––– Rule ––––– Prohibition/Limit –––––– Way Out? –––––––Comment

There is a requirement of requsal if you are an elected judge in the extreme circumstances of facing a party that financially contributes to your reelection

Problem of Libya: Mitigating factors: He was trying to negotiate a settlment with panam victims, No confidential information at issue

LAWYERS’ DUTY TO COURTS 28

LAWYERS’ DUTY TO COURTSMon, Apr 9: L&S: Chapter 11, pp. 593-623. Model Rules 3.1, 3.3Obligations in pleadings and evidence. Problems 11-1, 11-2, 11-3.

Duties to CourtsFocus: Lawyer’s duties to judges and adversaries in proceedings to resolve disputes. (ch11)

Being a good person in an adversary system “Hired gun” approach: pursue every possible tactic on behalf of their clients “Officers of the court” approach: believe duties to ct are = duties to clients (public-spirited) how does your approach change depending on the size of the “legal community”?

o is your reputation a luxory you can afford or does it short change representation of your client? Best to have a conversation with your client up front about how you practice law

Rule 1.3: cmt about lawyer not being required to zealously press for every advantage

Investigation before filing a complaintMeritorious claims and contentions: Rule 3.1

Claims must have basis in law and fact; “not frivolous.” Includes a good faith argument for an extension, modification or reversal of existing law,

FRCP 11(b) is similar but more detailed: o legal theory - must be “warranted by existing law or by a nonfrivolous arg for the extension,

modification, or reversal of existing law or the establishment of new law”; o factual assertions - must “have evidentary support or, if specifically so identified, be likely to after a

reasonable opportunity for further investigation or discovery”;

Differences b/w Rule 3.1 and FRCP 11 Purposes of both: avoid frivolous cases; provide competent representation; multiple avenues to address ethical

concern Frivolous (3.1)

o Not frivolous if lawyer informs themselves a/b the facts of their clients’ cases and the applicable law and determine that they can make good faith args in support of their clients’ positions

Cmt 2: facts need not be fully substantiated before suit is filed Recognizes it’s an ongoing process and more info will come out in discovery

Ask what you can to confirm what client tells you Apply reasonable, objective judgment

o Frivolous if atty unable to make good faith arg on merits of action taken or support action by good faith arg for extension, modification, or reversal of existing law

Sanctionso Rule 3.1: bar disciplinary actiono FRCP 11: punished by the judge in civil action, can result in nonmonetary directives or monetary

sanctions against a lawyer or a party Safe harbor

o FRCP 11: includes safe harbor—lawyer may withdraw allegedly frivolous pleading w/in 21 days after opposing counsel’s motion and suffer no sanctions

o Rule 3.1: no safe harbor provision, but a bar counsel would be unlikely to file a charge against a lawyer for filing a frivolous case or defense that was withdrawn

Penaltieso FRCP 11: sanctions, even if brings lawsuit in good faith and later finds out its groundlesso attorneys’ fees: federal statute says if lawyer “multiplies the proceedings unreasonably and

vexatiously” pay other party’s atty fees ex. two US journalists seriously injured when a bomb went off in Nicaragua. Lawyer who

brought suit based on hearsay evidence that CIA was responsible couldn’t substantiate through discovery. Laywer and nonprofit that employed him subject to fees and other sanctions of more than $1M. Sanctions bankrupted non-profit.

o Liability for tort of malicious prosecution: if sued on basis of virtual no evidence defendant may sue plaintiff or his lawyer; higher burden of proof than for sanctions

Plaintiff must prove: She won previous suit in which she was a defendant


Prior suit brought without probable cause Prior suit brought with malice, and She was injured despite having won prior suit

o “special injury”: to reputation, his person, or his liberty; not enough that suit was costly or time consuming (Mich)

Defense: if can prove there was “probable cause” for previous suit, that is, if lawyer had a “reasonable belief” that facts could be established and that under those facts, client had a valid claim

wide interpretations of whats needed under FRCP 11 and very fact specific cases:

o Boyer v. KRS Computer – ex-employee claimed employer electronically eavesdropped. Employer actually got info from other employees. lawyer sanctioned for filing without having checked with other employees first

o Footman v. Cheung - lawyer sanctioned for “serious ethical violations” because claimed plaintiff had multiple sclerosis and had entered restaurant’s restroom, when in fact he had diabetes and had not entered stall

o Parker v. Vigo School - not sanctioned because “scintilla of evidence,” while not enough to survive summary judgement, was sufficient to avoid FRCP 11 sanctions.

o Jimenez v. Tech School: lawyer sanctioned for filing suit based on what client told him and of copies of emails the client produced that turned out to be forgeries.

Ct said its hard to say whether a lawyer could ever rely solely on his client’s version of the facts as a basis for filing suit. May be more justifiable if SOL about to expire

here, lawyer should have “subjected his client to rigorous questioning” and “insisted on seeing the original documents.”

Problem 11-1: Your visit from Paula Jones (p.604)o Facts: Paula Jones comes to you with a story that she had been sexually harassed by the governor in

his suite. She ended up in his suite pursuant to the note from body guard and went there thinking that she is going to get promoted (in her job). The following occurred in the hotel suit

Governor said that he was friends with Paula's superior Governor said to Paula "I love your curves" Governor put his hand on her leg and attempted to kiss her As Paula walked away, Bill lowered his trousers and underwear and asked her to kiss his erect

penis; Paula fledo Issue: What must you do to corroborate Jones's allegations before suing Bill?

check her statement about position and see whether it has been abolished depose security guard find out whether her former superior was indeed "good friend" and appointee of Bill check to see if governor have indeed stayed in the room that Paula claims tort of sexual

harassment have occurred ask for paper Subject client to “rigorous questioning”(Jiminez): ask why she waited so long why she was transferred would be the most difficult thing to corroborate

Truth and falisty in litigation —Rule 3.3

Rule 3.3—Candor to the Tribunals

(a) a lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

bars false testimony by lawyers (not witnesses or clients) if a lawyer discovers that she has made a false statement, she must correct it. What is false statement of fact or law?

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or


Requires more than avoiding falsehood. Lawyer must affirmatively disclose directly adverse law if opponent doesn’t

meaning of direct adversity: something controlling in your jurisdiction Comment 4: law and facts are different. Facts are subject to adversary system. Law is different - court

should be determining the case based on all relevant law. If court is not aware, then it cannot do a good job

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

a lawyer who knows that his client or other witness is going to lie to the court may not allow the witness to do so

if the witness does lie, the lawyer must call on the witness to correct the lie, and if he won't the lawyer must disclose the lie

applies to trial testimony, depositions, and other testimony related adjudication (cmt 1) if you find out later, need to do remedial measures (disclosure to the tribunal); see cmt 10

A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Reasonably Believe (cmt 8): you have the discretion of deciding (i.e. have to know if it false, before you disallow the defendant to testify)

o if lawyer reasonably believes, but not certain of falsehood of evidence, lawyer may refuse to offer the evidence (unless case is criminal, then must allow client to testify)

o In a criminal case, lawyer must allow defendant to testify if the lawyer reasonably believes but is not certain that the evidence is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

lawyer has a duty to prevent not only a false testimony but also "criminal / fraudulent conduct"; e.g. trying to bribe or influence jurors or intimidate a witness, destroying evidence (cmt 12)

see Comment 10 for remedial measures

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

unless the case have been completed (that includes appeals), the lawyer who learns of false testimony must take steps to correct it

cmt 13: conclusion of proceeding: when final judgment has been affirmed on appeal or time for review has passed. (e.g, if you learn 3 years after the thing is over, do not need to go forth with the disclosure)

the duty to correct the record overrides the duty of confidentiality

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

if only one side makes presentation, must disclose adverse material facts known to the lawyer and that the lawyer reasonably believes are necessary to an infomred decision (cmt 14)

no adversary process therefore must tell adverse storyRemedial Measures (see Comment 10)

first talk to your client and advise him on obligations as the attorney try to get the client to do it herself if client refuses, then may need to withdraw, if it is going to be enough if not enough, then tell the court that the information was false exception to the confidentiality 1.6 rules; (Rule 3.3 trumps 1.6 confidentiality rules)

Which Truth Telling Rule Applies When?Potential Rule Overlap:

Rule 3.3 Rule 4.1 Rule 8.4(c) Misconduct – bans on “deceit” and “misrepresentation” applies to all conduct by lawyers. May

be broader than the Rule 3.3(a)(1) ban on false statements


Who Might Lie/

Deceive

Situation (Court / Admin Hearing / Discovery) Lawyer's Obligations / Applicable Rule

Lawyer Lawyer is considering making a false statement of fact or law

to a judge

Must not do it. Rule 3.3(a)(1), 8.4

Client Lawyer knows that her client is considering testifying falsely in

court or in a deposition

Lawyer must counsel the client and refrain from

asking client questions that would elicit the false

testimony. Rule 3.3(a)(3)

Civil client or witness Lawyer suspects but does not know that planned testimony

may be false; witness is not criminal defendant

If lawyer “reasonably believes” it is false, lawyer

may refuse to offer the testimony, or may allow it.

Rule 3.3(a)(3)

Criminal Defendant Lawyer suspects but does not know that planned testimony

may be false; witness is a criminal defendant

If defendant insists on testifying, the lawyer must

allow it even if the lawyer reasonably believes it is

false. Rule 3.3(a)(3)

Client or witness Lawyer knows that her client or other witness has testified

falsely during direct or cross-examination

Lawyer must counsel client to correct the record;

consider withdrawing; correct record if necessary to

undo the effect of the fase evidence. Rule 3.3(b) /

(c) / Comment 10

Client or witness Witness has misled the court by making statements that are

literally true but deceptive

Lawyer may have duty to counsel client and correct

the record. Rules 3.3(b), 8.4(c)

Lawyer Lawyer knows of directly adverse controlling legal authority

that has not been disclosed by opposing counsel

Lawyer must bring it to court's attention and

distinguish it or explain why it is not authoritative.

Rule 3.3(a)(2)

Lawyer Lawyer knows of facts adverse to client's interest, not

requested in discovery or required to be disclosed by a court

rule

No need to disclose unless the proceeding is ex

parte. Rule 3.3(d)

A lawyer’s duties if a client or witness intends to give false testimony

When the lawyer believes that a criminal defendant intends to lie on the stand: Nix v. Whiteside: issue: whether 6th amend right of a crim D to assistance of counsel is violated when an atty

refuses to cooperate w/D in presenting perjured testimony at his trialo Model Code & Model Rules require disclosure by counsel of client perjuryo 8.4(c): lawyer can’t engage in dishonesty, deceit, fraud, or misrepresentationo Strickland standard for ineffective counsel in violation of 6th am rt: 1) deficient performance, and 2)

prejudice (here concurrence by Blackmun said just decide on prejudice prong)

A lawyer’s “knowledge” of a client’s intent to give false testimony: RULE: only if the lawyer actually knows that the witness is going to testify falsely must the lawyer refrain from

offerint the testimony; in criminal case, must present evidence unless know its false Problem 11-2: Flight from Sudan, Scene 1

Can lawyers protect themselves and their clients by deliberately not knowing all the facts? Up to a point, e.g., criminal defense lawyers not asking if client committed crime 1.2(d), duty not to collaborate in a client's crime 1.13, duty to report the misconduct of corporate officials to a client corporation 3.3(b), duty to correct a client's testimony that the lawyer knows to have been false


Partial Truths: A lawyer’s duties if a client intends to mislead the court without lying: A partial truth is a statement that may literally be true but that deceives another person by omitting relevant

information or twisting information in a way that distorts ito Ethics rules prohibit false statements but permit some less direct forms of deception

Perjuryo Bronston Standard (US Sct reversed)

non-responsive answers that are misleading do not constitute perjury only deliberately false statements may be prosecuted

o if lawyer knowingly puts on perjured testimony, may be disbarred or convicted of crime of subornation of perjury

Ethics require more exacting degree of truth than perjury (but very little caselaw on issue)o Rule 3.3(b): lawyers are required to correct fraudulent conduct by their witnesseso Rule 8.4(c): deceit is not permittedo Rule 7.1: bars lawyers from making false / misleading statements about themselves or their services

(related to advertising); A statement is “false or misleading” if: material misrepresentation of fact or law is prohibited omits a fact necessary to make the statement considered as a whole not materially misleading

Problem 11-3: Flight from Sudan, Scene 2o Question: Should you disclose / take steps to disclose that fact?o under Bronston standard no - literal trutho ethical rules are not clear, and Massariah is not your client (therefore no)o if don't reveal and truth comes out - argue that it is not dishonesty that it is not particularly importanto overall lesson - if you don't tell the truth you can be backed into the corner, so watch out!

Wed, Apr 11: L&S: Chapter 11, pp. 624-43. Model Rules 3.3, 3.4, Obligations in pleadings and evidence. Problems 11-4, 11-5MISSEDTruth and Falsity in Litigation (cont…)

Variations in State Rules on Candor to tribunals False impressions created by lawyers during litigation

o How Simpson Lawyers Bamboozled a Juryo Problem 11-4: the Drug Testo Problem 11-5: The Body Double

Lawyers’ duties of truthfulness in preparing witnesses to testifyo What do the ethics rules say about coaching? o Rule 3.4: Fairness to Opposing Party and Counsel

Concealment of Physical Evidence and Documents Duties of criminal defense lawyers with respect to evidence of crimes

o What should a lawyer do when a criminal defendant hands the lawyer a weapon or other tangible evidence of a crime? – Rule 3.4(a)

State v. Olwell In re Ryder People v. Meredith

o Are documents treated differently from other physical evidence? — No Morrell v. State

o Do lawyers who have possession of documentary evidence have to be concerned about criminal statutes as well as ethical rules? — Yes

o Do all j/d require lawyers to contact prosecutors about physical evidence in their possession? — No

Mon, Apr 16: L&S: Chapter 11, pp. 643-77. Model Rules 3.3-3.9Obligations in pleadings and evidence. Problem 11-8, 11-9.

Concealment of evidence Rule 3.4(a) Rule 3.4(a): MRPC restrict lawyers from hiding evidence of criminal misconduct

Prohibits “unlawful” concealment or destruction of material having “potentially evidentiary value.” Material includes both physical evidence and documents

o Look to state law to determine if concealment is “unlawful”: If state obstruction of justice or evidence of tampering statutes apply triggers duty under Rule 3.4(a)


Enforcing 3.4(a) is difficult—violations are tough to detect and lawyer can cite atty-client or work product privileges

Criminal cases Concealing evidence or assisting/counseling other to do so may be a crime—obstructing an investigation,

tampering evidence, accessory to a crime; When does obligation not to coneal begin?

o If lawyer has no knowledge that a violation of the law has been committed & no criminal investigation is foreseeable, a lawyer has no duty to turn evidence over to a prosecutor

o In some states, lawyer’s duty not to conceal tangible evid takes effect as soon as the lawyer believes that an official investigation is about to be instituted. Other states, not until investigation actually starts

o It may be difficult under crim law to define the point at which legitimate destruction becomes unlawful obstruction of justice; Generally, obstruction of justice statutes apply only when an official proceeding is ongoing or imminent

Civil cases Rule 3.4(a) bans only “unlawful” concealment: some states have dif standard for civil cases: allow lawyers to

keep possession of evidence not pertinent to criminal investigationso Why dif stanard? b/c in a civil case, possession of such docs are not being used to cover up a crime and

discovery can be used When does obligation begin? Governed by civil discovery rules (FRCP 26) and MRPC (Rule 3.4).

o As soon as civil case commences, lawyer may have duty under procedure rules to turn over some info to opposing party, even if no discovery request (e.g. FRCP 26(a)(1))

o duty to preserve in some states business records for specified periods even if no dispute on horizon; even if no preservation statute applies, if lawyer has some reason to believe wrongdoing has occurred may have a duty to preserve evidence.

Responding to Discovery Request Rule 3.4(d): no frivolous discovery requests / and must make reasonably diligent effort to comply with a

legally proper discovery request by an opposing party;o Discovery abuse punishable by court sanctions or disciplinary actiono Problems: cost of litigation increases when plaintiff’s seek discovery of more documents than needed;

and defense interprets discovery requests narrowly Overdiscovery: discovery “by avalanche” Overproduction: the “warehouse” tactic or “hiroshima” defense

*Problem 11-8: Damaging Docs: discovery request was worded as specific product name, not chemical. Issue: interpreted request narrowly to hide the “smoking gun”

o Supervisor’s Recommendation: "interpreting discovery request narrowly and only supplying what was asked for is standard practice"

not produce 2 documents discovery defines product to mean only Somophyllin, not theophylline send 60,000 documents on Somophyllin compose a cover letter

can't be read to suggest that the documents it covers include theophylline don’t reveal that we have more material so the second request will follow

o [handout re real case]: in real life, the law firm turned over all 60,000 documents subject to a general objection that requests was overly broad and unduly burdensome…lower ct denied sanctions, and doctor appealed; supreme court reversed and imposed sanctions

o Point: don’t be “too cute” about how narrowly you interpret discovery requestsWhat is potential evidentiary value? Hard to tell sometimesBottom line: never assume docs that are/could be pertinent to a civil suit may be concealed or destroyed.

Adverse legal authorityRule 3.3(a)(2): prohibits a lawyer from “knowingly” failing to disclose adverse authority in controlling jurisdiction if other party omits (but not adverse facts);

Purpose: cases should be decided w /in the framework of the whole body of law Exceptions:

o If adverse law is from another j/do If not “directly adverse” (no req to disclose dicta & holdings applicable only by analogy)o Persuasive authority (treatises)


o If opponent has not yet done so but has the right to file another brief, laywer may not (yet) have a duty to disclose (probably better to do so to make sure case doesn’t get overturned later + improves credibility to judge)

Ex parte Disclosures: Adverse material factsRule 3.3(d): in ex parte (one-sided) proceedings, must disclose “all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse” (e.g., request for a temporary restraining order)

Purpose: allow judge to accord the absent party just consideration (3.3(d), cmt 14)o Suggests if matter is not truly adversarial, rule 3.3(d) may not apply (e.g., social security disability

hearing) Trumps confidentiality rules, but not required to reveal info protected by the attorney-client and the work

product doctrine

Improper influences on judges and juries 3.5(a): can’t try to influence a judge, prospective juror or other official by means prohibited by law Ex parte communication with judges: Rule 3.5(b) says can’t communicate with a judge about a pending case,

orally or in writing, unless the lawyers for all parties are privy to the communicationo Can call judges’ secretaries or clerks to make minor, routine procedural inquiries without having to tell

the other side, but cant discuse substance of caseso Campain contributions

Rule 3.6(a) Trial Publicity (p.662): prohibits public comments that will have a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter” (see cmt 5 for list of likely prejudicial topics)

o Ex. The Gentile Case: sup ct held Nevada’s rule was void for vagueness: allowing lawyer to state without “elaboration” the “general nature” of case

o 3.6(b) Permitted list: can state… 1) the claim, offense or defense involved, and identity of persons 2) info in public record 3) that an investigation of a matter is in progress 4) scheduling or result of any step in litigation 5) a request for assistance in obtaining evidence 6) a warning of danger 7) in criminal case, ….

o 3.6(c): atty may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment

Problem 11-9 (p.664): Letter to the Editor: sanctioned for outright assertion of innoncence and lie detector test (which is inadmissible as evidence) going to the facts of the case and cross the line (don’t put out information about an ongoing case that is inadmissible evidence; don’t put out a “claim of innocence”)

o Point Exceptions in 3.6(b) should be narrowly construed Impeachment of Truthful Witness (Subin Article)

Statements by Lawyers during Jury Trials Rule 3.7: Advocate-witness rule: gen, lawyers may not testify as witnesses in cases they are handling; unless

o 1) testimony relates to an uncontested issue (e.g., lawyer attempting to introduce a letter into evidence may testify she received it from her client’s brother);

o 2) relates to nature and value of legal services; oro 3) disqualification of lawyer would work substantial hardship on the client

What about comments appealing to racial or other prejudice of jurors? Prohibited by Rule 8.3, cmt 3 Other Restricitons: see Rule 3.4(e) p.672 Lawyers’ duties in Nonadjudicative Proceedings—Rule 3.9


DUTY TO ADVERSARIES, 3 RD PARTIES

Mon, Apr 23: L&S: Chapter 12: pp. 679-711. Model Rules 4.1-4.4Communication with lawyers, 3rd parties, represented persons. Problems 12-1, 12-2.

Communications w/adversaries and third partiesRules 4.1 – 4.4 apply when lawyers communicate w/others on behalf of clients outside of “proceedings” Deception of third persons (CO has a Rule 4.5)

Rule 4.5: threatening prosecutionMatrix of Permissible Deceit

Type of Deception Purpose Motive/Intent Atty’s Role Ok?Liefibsilence

Deception of third persons Rule 4.1(a): duty to avoid material false statements of fact or law

o similar to Rule 3.3(a)(1): both instruct not to lie 3.3 applies only to proceedings before tribunals; 4.1 applies whenever a lawyer is

representing a client; 3.3 prohibits making any false stmts to tribunals, 4.1 prohibits only “material” false statemetns

of fact or law to 3rd persons But 8.4(c): prohibition from engaging in conduct involving “deceit or misrepresent,” has no

qualifier excusing false stmts that are not material (Pautler)o “Material” defined as something that would have changed the behavior of the receipient of the info

(defined in Gatti, not in book)o Obligations of disclosure to 3rd persons: 4.1(b) limited duty to make affirmative disclosures to

others when necessary to avoid assiting a crim or fraudulent act by a client; But duty to disclose is subordinate to duty under R. 1.6 to protect confidential info

Problem 12-1: Emergency Food Stamps: false stmt of material fact to third person (some states have modified rule to allow atties to misrepresent facts during an investigation)

False statements by clients? – No duty to correct the record when a client is lying in her prescence to someone other than a court;

o But, could get disciplined for sitting by silently while a client perpetuates a fraud, if lawyers presence during an event at which the client lies is “use” of the lawyer’s services to commit a fraud (thus permitting disclosure under R 1.6(b))

Negotiations: Under “generally accepted conventions,” statements estimating price/value, or a party’s intentions are not considered statements of material fact (4.1(a), cmt 2)

o But negotiators cannot take advantage of incorrect assumpstions or mistakes of the other side when they know such mistakes are being made (Stare v. Tate, divorce case where stock price mistakenly calculated by wife’s lawyer and husband’s lawyer didn't say anthing)

o Class Notes: “negotiation game” Slightly suspect but necessary pt of business, inability to enforce and slipperly slope issues

Lawyers use of “testers” in fact investigations 8.4(a) lawyer can’t violate rules or “do so through acts of another” SO, if lawyer could not ethically do work

himself, cannot enlist others to do it Apple Corp v. ICS (NJ): (Beatles Stamps IP case): ct held Rule 8.4(c) does not apply to misrepresentation solely

as to identity or purpose and solely for evidence-gathering purposes BUT The Gatti Case (Oregon): lawyer represented chiropracter, in investigating a possible fraud case falsely

stated that he was a doctor; Ct held that by misrepresenting his identity and purpose, he violated his duty to the public to maintain personal integrity.

o Ct did not make an exception for prosecutor-directed criminal investigations; but afterwards Statute passed allowing covert law enforcement, but did not let lawyers participate personally in the deception

Issue is still unsettled, but see bar opinion endorsing “dissemblance” if investigating civil rights or IP violations, on p.688


Receipt of inadvertently transmitted info, including metadata Rule 4.4(b): you are allowed to use the info just have to promptly let the other side know (must notify sender

if know or reasonably should know that sent inadvertently) May you “mine” for metadata? (courts split):

o ABA and Maryland: no duty to refrain from viewing it or notifying sendero Alabama and NY: can’t attempt to view metadata

Restrictions on contacts with represented & unrepresented persons

Rule 4.2—Restrictions on contacts w/ represented persons Some restrictions on communication b/w lawyers and adverse persons Purpose: prevent lawyers from making “end runs” around other lawyers to get info from the other lawyers’

clients; concerns about possible overreaching Rule 4.2: Communication with Person represented by Counsel Exceptions:

o Represented client can contact atty to obtain 2nd opinion, shop aroundo If atty starts convo w/another person erroneously believing that person is unrepresented, atty must

end conversation upon learning that person has attyo Only applies to communications w/persons known to be represented by a lawyer in “the matter.”

Lawyer may talk w/person about other subjects if they involve a different “matter.”

Rule 4.3—Restrictions on contact with unrepresented persons Rule 4.3: lawyer shall not state or imply that lawyer is disinterested When lawyers knows that unrepresented person misunderstands lawyer’s role, lawyer shall make reasonable

efforts to correct the misunderstanding (affirmative duty) Lawyer shall not give legal advice to unrepresented person if lawyer knows there’s a reasonable possibility of

being in conflict w/interests of client

Impeachment of a truthful witness Rule 4.4(a): Respect for Rights of 3rd Persons: lawyer may not use means that have “no substantial purpose

other than to embarrass, delay, or burden a third person” 4.4: arguable that cross-examining as if to impeach has a purpose, make sure P meets burden Subin article—Would it be proper for lawyer to cross-examine complainant to imply that she consented to sex,

even though D privately confessed he raped her?

Stolen Documents as evidence—Problem 12-3: The Break In Rule 1.2(d) Rule 3.4(a) Rule 4.4 Rule 8.4

Scope Of Representation And Allocation Of Authority Between Client And Lawyer

Fairness To Opposing Party And Counsel

Respect For Rights Of Third Persons

MisconductIt is professional misconduct for a lawyer to:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or 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

A lawyer shall not 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 any such act

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

(a) violate or attempt to violate the Rules, knowingly assist or induce another to do so, or do so through the acts of another;(b) commit a criminal act that reflects adversely on the L’s honesty, trustworthiness or fitness as a L in other respects;(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;(e) state or imply an ability to influence improperly a govt agency or official or to achieve results by means that violate the Rules or other law; or(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.


What rules (if any) require you to return the document / notify about your possession?o A cmt in the rule says something about

Would it violate any rules to use these documents in negotiating with Ron's lawyer about custody / push for better financial settlement?

What do you do with the documents? o Problems? stolen property is a crime, may implicate a duty to turn them overo Keeping docs in your office?

not representing criminal defendant no ongoing investigation you have copies, by keeping them it is not impossible for other side to obtain them

What should you do?o Issue that if you turn them in it may implicate your client in theft

your client wants custody, you fight hard, use docs in the best way for your client if litigation: these documents may not be admissible seems like the best thing to do is try to negotiate

o if fathers attorney, what do you do as a neutral partisan say sorry, you're still going to court bad situation for mom's attorney

The answer is not clear. A lot depends on whether the court will admit the evidence

Wed, Apr 25: L&S: Chapter 12: pp. 711-30. Model Rule 3.8Prosecutors’ duties; prejudicial conduct. Problems 12-3, 12-4

Duties of Prosecutor A Prosecutor is a “Minister of justice” – Rule 3.8, comment 1

o Prosecutors have extra duties b/c of extra powerso Why? many have political ambitions or want to improve reputation through high profile cases—high

conviction rate=fast advancement Worst offenses: concealing evid suggesting innocence & presenting evid known to be false

Undercover investigations if a prosecutor is directing an investigation, he arguable violates Rule 4.1 (prohibiting materially false

statements) and Rule 4.2 (prohibiting contact with represented persons)o Little case law interpreting 4.1 in application to criminal investigationso 4.2: state may not have any communication w/ represented criminal D unless: (1) state first obtains

lawyer’s consent; (2) communication is “authorized by law”; or (3) stat obtains a court order authorizing the communication

Does the “authorized by law” exception cover communications occuring prior to filing of charges? Comment 5, Rule 4.2 suggests ok, but 4.2 prohibits contact, without lawyers consent, once a charge is filed

o Postarraignment interviews have been found a violation of 4.2; but some courts have found that preindictment contact ok

McDade Amendment: subjects lawyers working for fed govt to all applicable state ethics rules, not just 4.2 Problem 12-4: Prosecutor’s Masquerade

o Rule 4.3: if talking to someone unrepresented and they misconstrue o Issues of defense losing faith in system vs. lawyer’s personal moral and ethical duty

Required investigations by prosecutors before charges are filed—Rule 3.8 3.8(a) is prosecutor’s analogue = to Rule 3.1 and FRCP 11 Rule 3.8(a): prosecutor may not file a criminal case w/o a belief formed after due investigation, that there are

good factual and legal grounds for it o Some argue that “probable cause” std is pretty low; don’t need “more likely than not,” just need fair

possibility of guilt; a little more than a “reasonable suspicion”: (rule just imports existing legal standard into ethics code)

o Other rules, like ABA: higher than probable cause std, admissible evid

Concealment of exculpatory evidence: Rule 3.8(d) Must hand over all exculpatory evidence to defense even if not requested Ex: Duke lacrosse case—state prosecutor was disbarred for misconduct in criminal prosecution


Wed, Apr 18: [tentative] guest lecture: Colorado U. S. District Judge John Kane

“Advocacy is the skill of discovering the available measn of persuasion in a given case” - Aristotle

Three fundamental elements of rehetoric: 1) Speaker2) Content 3) Audience1 + 2 > 3 – 15%Can only communicate 85% of what you mean; Failures: Ad hominem attacks and appeals to pity usually lose

Two Elements of Practicing Law (handout)I. Taxaonomic: function is quantitative (can get grades)II. Aesthetic: qualitative, not quantitative…point: did the person learn something, i.e., did the idea you wanted to get across manage to get to the audience

Ethos: distinguishing character of person or groupEthics: process of developing an ethical nature or character

Profesional responsibility: don’t miscite, keep it concise; lawyer has a conflict of zealous advocacy vs. duty of candor as an officer of the court

from english law where barrister seperated from solicitor, who was agent of clientNeed to understand dynamics of where you are

Part of your character is that you give a damn, and part is that you can logically thnk about the content

Ethics as distinguished from legal ethics is about goals you set for yourself to develop habits of behavior that it beccomes second nature for you to do this

Secret: combination of the systematic with the perception is the constant area of where you need to practice (lawyers oath is far more instructive than all the rules of professional conduct)

Being a lawyer is an invitation to lead a moral life

Death of Jury Trial: 2% of civil cases are tried by juryJury trial (vs. judge decided): measures the civility of socitey; lets public make a value judgmeent

rather than a bottom line economic decision; Personification of the social values of our society

LAST CLASS WRAP UPCompliance with rules like traffic rules, by themselves they are not particularly aspirational compared to ethics which areThemes:

Inscription noted in syllabus Cynicism Thomas Moore’s oath

Thr, May 3: Final Exam

skaggs ethics spring 2012

Documents

work product prepared

unbundled legal services

prior suit brought

pay ct costs

lawyers mental impressions

clients expressed wishes

implement reasonable steps

reasonable remedial measures