a. http://www.law.uconn.edu/student-handbook/admission-bar
b. http://www.jud.state.ct.us/cbec
c. http://www.ncbex.org
3.2. Model Rule 8.1: Bar Admission And Disciplinary Matters
3.2.1. An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
3.2.2. (a) knowingly make a false statement of material fact; or
3.2.3. (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
4. Professional Discipline
4.1. History and Process
4.2. Grounds
4.2.1. Very broad
4.2.2. Need not be related to law practice
a. POTUS
b. Dean Geoffrey Peters (see pp. 86-96; not assigned)
4.3. Model Rule 8.4 Misconduct
4.3.1. It is professional misconduct for a lawyer to:
a. (a) violate or attempt to violate the Rules of Professional Conduct,
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knowingly assist or induce another to do so, or do so through the acts of another;
b. (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
c. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
d. (d) engage in conduct that is prejudicial to the administration of justice;
e. (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
f. (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
4.3.2. COMMENT 3 OF RULE 8.4
a. A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.
4.4. Daniels v. Alander
4.4.1. 268 Conn. 320 (2004)
4.4.2. Hon. Jon Alander (Superior Court judge)
4.4.3. Attorney Douglas R. Daniels (lawyer/employer)
4.4.4. Attorney Dennis Driscoll (Daniels’ associate)
4.4.5. Inez Montalvo (client/mother)
4.4.6. Attorney Veronica Davis (client’s NJ lawyer)
4.4.7. Rule 3.3: Candor Toward the Tribunal
a. (a) A lawyer shall not knowingly:
1) (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;
2) (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
3) (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 may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
b. (b) A lawyer who represents a client in an adjudicative proceeding and
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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.
c. (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.
d. (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.
4.5. Reporting misconduct
4.5.1. Duty
4.5.2. Ethical misconduct by superiors
4.5.3. Legal protections for subordinate lawyers
4.5.4. Rule 8.3 Reporting Professional Misconduct
a. (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct 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.
b. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
c. (c) This Rule does not require disclosure of information otherwiseprotected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
4.6. Subordinate lawyers
4.6.1. Rule 5.1: Responsibilities Of Partners,Managers, And Supervisory Lawyers
a. (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
b. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
c. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
1) (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
2) (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails
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to take reasonable remedial action.
4.6.2. Rule 5.2: Responsibilities Of A Subordinate Lawyer
a. (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
b. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
a. With respect to a non lawyer employed or retained by or associated with a lawyer:
1) (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
2) (b) a lawyer having direct supervisory authority over the non lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
3) (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
i. (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
ii. (2) the lawyer is a partner or has comparable managerial authorityin the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct ata time when its consequences can be avoided or mitigated but failsto take reasonable remedial action.
4.6.4. Rule 1.1: Competence
a. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
4.6.5. Problem 2-1:The Little Hearing
a. Brand-new lawyer, working for solo.
b. Boss made her handle immigration hearing for which she was utterlyunprepared.
c. Wants her to handle two hearings tomorrow.
4.7. Civil Liability
4.7.1. Negligence; breach of contract; fraud; etc
4.7.2. Damages; possibly injunction
4.8. Criminal Liability
4.8.1. Fraud; theft; etc
4.8.2. Incarceration; fines
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4.9. DISCIPLINARY
4.9.1. Violation of ethical rule(s)
4.9.2. Reprimand, suspension or disbarment
4.10. Legal Malpractice
4.10.1. Most common causes of action
a. Negligence
b. Breach of contract
c. Breach of fiduciary duty
4.10.2. Notion of “case within the case”
4.10.3. Liability to non-clients
4.10.4. Client protection funds
4.10.5. Malpractice insurance
5. Duty of Confidentiality
5.1. Sources
5.1.1. Ethics codes
5.1.2. Evidence law
5.1.3. Agency law
5.1.4. Civil procedure rules
5.2. Basic Principles
5.2.1. Problem 2-2:Your Dinner With Anna
5.2.2. Rule 1.6 Confidentiality Of Information
a. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impolitely authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
b. (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
1) (1) to prevent reasonably certain death or substantial bodily harm;
2) (2) to prevent the client from committing a crime or fraud that isreasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
3) (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
4) (4) to secure legal advice about the lawyer's compliance with these Rules;
5) (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any
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proceeding concerning the lawyer's representation of the client; or
6) (6) to comply with other law or a court order.
c. Comment 4 to Rule 1.6: This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved
d. Comment 18 to Rule 1.6: The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2)....
e. Rule 1.6(b)(1) in Connecticut
1) MRPC
i. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . . to prevent reasonably certain death or substantial bodily harm
2) Connecticut
i. A lawyer shall reveal such information to the extent necessary to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm.
3) CT Not As Lenient -- Requires more reporting
5.2.3. Restatement 3d, § 60: A Lawyer’s Duty to Safeguard Confidential Client Information
a. (1) [D]uring and after representation of a client:
1) (a) the lawyer may not use or disclose confidential client information . . . if there is a reasonable prospect that doing so will adversely affect a material interest of the client or if the client has instructed the lawyer not to use or disclose such information
5.2.4. Problems 3-3 & 3-4: Missing Persons
5.3. Exceptions
5.3.1. Past Criminal Conduct
5.3.2. Risk of Future Injury/Death
a. Model Rule 1.6(b)(1):
1) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: to prevent reasonably certain death or substantial bodily harm;
2) ABA Canons of Ethics(circa 1962)
i. It is the duty of a lawyer to preserve his client’s confidences. . . . The announced intention of a client to commit a crime is not included in the confidences he is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect against whom it is threatened
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5.3.3. Client Frauds and Crimes
a. Connecticut's 1.6(b)(1)
1) A lawyer shall reveal such information to the extent necessary to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm.
2) MBCA - May report when reasonable certain death or substantial harm
3) CT lawyer must report future fiscal harm
b. Fraud?
1) Model Rule 1.0 Terminology: [d&f]
i. (d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive
ii. (f)"Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances
2) 1.2(d) Scope Of Representation And Allocation Of Authority BetweenClient And Lawyer
i. (d) 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.
3) An intentional or knowing misrepresentation to another person [page 192]
c. Rule 1.6(b)(2) vs 1.6(b)(3) Confidential Information
1) (b) EXCEPTIONS: A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
i. (b)(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
ii. (b)(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
2) Distinctions: PAST VS FUTURE HARM PREVENTION
i. Harm Sought To Be Prevented
� 1.6(b)(2): Substantial injury to financial or property interests of another resulting from client crime/fraud
� 1.6(b)(3): Substantial injury to financial or property interests of another resulting from client crime/fraud
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ii. Timing Of Client Crime/Fraud
� 1.6(b)(2): Future
� 1.6(b)(3): Past
iii. Likelihood Of Harm Needed To Trigger
� 1.6(b)(2): Reasonable certainty
� 1.6(b)(3): Reasonable certainty
iv. Must Lawyer’s Services Have Been Used In Furtherance?
� 1.6(b)(2): Yes
� 1.6(b)(3): Yes
d. Rule 1.6(b)(2) AND 1.6(b)(3) VS SARBANES-OXLEY
1) Applies To
i. 1.6: All lawyers (in states that have adopted)
ii. Sar-Ox: Only lawyers practicing before SEC and dealing with publicly-held companies
2) Disclosure Obligation
i. 1.6: Lawyers may and in some cases must disclose fraud of any type
ii. Sar-Ox: Lawyers must report securities fraud to management and may report to SEC
3) Must Lawyer’s Services Have Been Used In Furtherance?
i. 1.6: Yes
ii. Sar-Ox: NO
e. 1.9(c): Duties to Former Clients: Same Exceptions as to Current Clients
1) (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
i. (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
ii. (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client
f. Rule 1.16 Declining Or Terminating Representation (a&b are important here)
1) (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw fromthe representation of a client if:
i. (1) the representation will result in violation of the rules of professional conduct or other law;
ii. (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
iii. (3) the lawyer is discharged.
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2) (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
i. (1) withdrawal can be accomplished without material adverse effect on the interests of the client;
ii. (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
iii. (3) the client has used the lawyer's services to perpetrate a crime or fraud;
iv. (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
v. (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
vi. (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
vii. (7) other good cause for withdrawal exists.
g. Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer [here (d) is important]
1) (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
2) (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
3) (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
4) (d) 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.
5) COMMENT 10: When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The
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lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or bysuggesting how the wrongdoing might be concealed. A lawyer may notcontinue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1
h. Rule 1.18 Duties To Prospective Client [here, (a)&(b) are important]
1) (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
2) (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
3) Comment 2: Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).
i. Rule 3.3 Candor Toward The Tribunal
1) (a) A lawyer shall not knowingly:
i. (1) make a false statement of fact or law to a tribunal or fail tocorrect a false statement of material fact or law previously made to the tribunal by the lawyer;
ii. (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
iii. (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, thelawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 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.
2) (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.
3) (c) The duties stated in paragraphs (a) and (b) continue to the
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conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
4) (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
j. Rule 4.1 Truthfulness In Statements To Others
1) In the course of representing a client a lawyer shall not knowingly:
i. (a) make a false statement of material fact or law to a third person; or
ii. (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
2) COMMENT 3: Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessaryfor the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.
k. 8.4(c) It is professional misconduct for a lawyer to:(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
5.4. Attorney Work-Product Doctrine
5.5. Attorney-Client Privilege
5.5.1. Elements of Attorney-Client Privilege (Rest. 3d § 68)
a. A communication
b. Made between privileged persons
c. In confidence
d. For purpose of obtaining or providing legal assistance for client
5.5.2. Survival of Duty after Client's Death
a. Rule 1.6, Comment 18: The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2)....
b. Rule 1.9 (Duties to Former Clients): (c) A lawyer who has formerlyrepresented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
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c. Problem 4-3: The Dead Murderer
1) Actual case: State v. Macumber, 544 P.2d 1084 (AZ 1976)
2) Lawyer obtained informal ethics opinion from state bar OK’ing disclosure.
3) But trial court barred lawyer’s testimony based on privilege, and AZ Supreme Court affirmed.
4) Macumber convicted, but new trial ordered on other grounds
5.5.3. Comparison: Duty of Confidentiality & Attorney-Client Privilege
a. Purpose
1) Duty of Confidentiality: Encourage full & frank communication
2) Attorney-Client Privilege: Encourage full & frank communication
b. Source
1) Duty of Confidentiality: Ethics Rule
2) Attorney-Client Privilege:: Evidence rule
c. Scope
1) Duty of Confidentiality: Broad
2) Attorney-Client Privilege: Narrow
d. When Applicable
1) Duty of Confidentiality: Across the Board
2) Attorney-Client Privilege: Proceedings before tribunals
e. Exceptions
1) Duty of Confidentiality: Six explicitly enumerated
2) Attorney-Client Privilege: Common law “crime-fraud” exception
i. Exception for communications in which client sought or received help from lawyer to plan or commit crime or fraud.
ii. Unnecessary that crime or fraud actually occurred.
iii. Immaterial whether lawyer actually knows about client’s improper purpose.
iv. Mere disclosure to lawyer not enough to trigger exception
f. Enforcement
1) Duty of Confidentiality: Professional Discipline
1) Expands scope of privilege beyond “control group.”
2) Not binding on states.
b. Privilege belongs to client, i.e., corporation.
c. Raises numerous practical/ethical problems:
1) Whether/when to tell employees whom counsel represents.
2) How to respond to question, “Do I need my own lawyer?”
3) How to advise corporation re gov’t demands for waiver.
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d. “The internal investigation has become a hallmark of corporate legal practice.” (Duggin articles)
6. Lawyer-Client Relationships
6.1. Formation
6.1.1. Generally:
a. A lawyer may always turn down a client
b. Rule 1.18 Duties To Prospective Client
1) (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
2) (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
3) (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
4) (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
i. (1) both the affected client and the prospective client have giveninformed consent, confirmed in writing, or:
ii. (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
� (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
� (ii) written notice is promptly given to the prospective client.
6.1.2. Exceptions:
a. Rule 6.1 (“Voluntary Pro Bono Publico Service”)
1) Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. . . .
b. Rule 6.2 (“Accepting Appointments”)
1) A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause . . . .
c. Nathanson v. MCAD (2003) (P. 268, n.4)
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6.1.3. Togstad v. Vesely, et al., 291 N.W.2d 686 (Minn.1980) [see also Gillespie v. Klun, 406 N.W.2d 547 (Minn. App. 1987)]. . involved large malpractice liabilities to plaintiff who successfully claimed to have been client, but whom the defendant lawyer did not regard as a client.
a. Facts: Atty Miller, and associate of Df firm, represented the respondents, involved in a medical malpractice suit. The respondent’s diagnosis was an anuerism and a clamp was inserted over the artery and gradually closed. Upon discovery that the clamp was stopping the flow of blood to the brain, causing paralysis, by a nurse, the staff failed to open or adjust the clamp in time, and the respondent was left paralyzed in his right arm and leg, and unable to speak. Respondent’s wife met with the atty and described everything that happened at the hospital. Miller informed her that he did not believe there was a legal case. Relying on that information she did not discuss the case with another atty until a year later, and the statute of limitations had expired.
b. Issue: Whether the attorney and law firm committed legal malpractice during the initial consultation with the respondents informing them that they did not have a legal claim and not providing competent legal advise?
c. Holding: Yes.
d. Procedure: Jury verdict for respondents, $610,000 + $39,000. Affirmed.
e. Rule: Legal malpractice consists of 1) an atty-client relationship existed; 2) the Df acted negligently or in breach of contract; 3) such acts were the proximate cause of the Pl’s damages; 4) but for the Df’s conduct the Pls would have been successful in their original claim.
f. Rationale: Mrs Togstad went to Miller for legal advise, was told there wasn’t a claim and relied on this advise in failing to pursue the claim. Thus an atty-client relationship existed. Based on the testimony of the Df’s own witness ordinary care and diligence required Miller to inform the respondents of the statute of limitations, and it was reasonable for the jury to determine he acted negligently in failing to so inform the respondents. The record contains sufficient evidence that Miller failed to perform the minimal research that an ordinary prudent attorney would do beforerendering legal advise in a case of this nature. When Mrs. Togstad contacted the other atty a year after speaking with Miller, only three days maximum would have remained on the limitation period, Miller was the direct cause of the plaintiff’s damages. The evidence shows that but for Miller’s negligence the respondent’s would have been successful in their claim of medical malpractice. The jury should not have been instructed to reduce any award by the amount of a hypothetical contingency fee.
g. Pl : Mrs. Togstad went to Miller for legal advice, was told there wasn’t a case, and relied upon that advise in failing to pursue the claim, and Miller did not urge her to seek advise from another atty, or that he lacked expertise in the medical malpractice area.
6.2. Agency
6.2.1. Lawyers are agents of their clients (“principals”)
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6.2.2. Types of authority:
a. Actual
b. Express
c. Implied
d. Apparent
6.2.3. Clients are generally bound by actions of their lawyers except with respect to:
a. Waiver of privilege
b. Settlement of a case
6.3. Duty of Competence
6.3.1. Rule 1.1 Competence
a. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
b. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
c. COMMENT 2: A lawyer need not necessarily have special training orprior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. . . . A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.
6.3.2. Competence in criminal cases
a. Strickland v. Washington (error, alone, is not sufficient to prove that a defendant was deprived of their constitutional right to effective assistance of counsel; A claim that counsel was ineffective must rise to the level that it would be viewed as a denial of the right to counsel)
1) 466 U.S. 668 (1984), the United States Supreme Court established atwo-part test for establishing a claim of ineffective assistance of counsel. Under this test, a criminal defendant may not obtain relief unless he can show that counsel's performance fell below an objective standard of reasonableness, and that counsel's performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding-the trial, the sentencing hearing, the appeal-would have been different.
2) Respondent, Strickland, during a ten-day period, committed three groups of crimes, including three brutal capital murders, torture,kidnapping and attempted murders. Respondent pled guilty to all crimes and, stated that he accepted responsibility for the crimes and had only acted under extreme mental stress resulting from his inability to care for his family. Against the advice of his counsel, he waived his right to an adversarial jury at his sentencing hearing, and chose to be
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sentenced by the Judge. Because the defendant had already claimed extreme mental stress, his counsel used that, along with information from his wife and mother to establish his character. He did not request psychiatric evaluation, did not look for further mitigating evidence, and did not request a pre-sentencing report. Counsel’s decisions were said to reflect his hopelessness after his client pled to all offenses. Strickland was sentenced to death, and he sought habeas corpus relief due the failures of his counsel to come up with mitigating evidence.
3) Issue. Whether, after a defendant has pled guilty in a capital murder case, counsel has a duty to present mitigating evidence, in order to meet the Sixth Amendment standard for effectiveness.
4) Held. The Supreme Court, in an opinion authored by Justice O’Connor, held that while counsel may have committed error, it wasnot so ineffective as to overturn a death sentence. Dissent. Justices Brennan and Marshall dissented, holding that in the case of a capital crime, sentencing should be reconsidered if the counsel is found to have committed error.
5) Discussion. In the course of her opinion, justice O’Connor fully delineated the rule on what the Sixth Amendment encompasses when it considers effective assistance: First the benchmark for judging any claim of ineffectiveness must be whether the counsel’s conduct so undermined the proper functioning of the judicial process that theentire trial cannot be relied upon as just in result; Next the defendant must meet a two prong test in order to show that assistance of counsel was so defective as to require reversal or setting aside of a death sentence: (1) the counsel’s performance must be deficient, and (2) that deficient performance must have prejudiced the defendant so much as to have deprived him of a the right to a fair trial; When judging the performance of an attorney, counsel must be given a great deal of latitude, considering all circumstances. each case must be considered on a case-by-case basis; and Also, in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court, but it is a mixed question of law and fact.
b. Lawyer “Competence” Compared:6th Amendment vs. Ethics Rules
1) How Raised Procedurally
i. 6th Amendment: Appeal of criminal conviction or habeas corpus petition
ii. Ethics Rules: Grievance
2) Legal Standard
i. 6th Amendment: Very low bar -- Defendant effectively deprived of counsel -- Trial unfair, result unreliable
ii. Ethics Rules: Rule 1.1 -- Low bar perhaps, but not that low
3) Showing of Harm Required?
i. 6th Amendment: Yes
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ii. Ethics Rules: No
4) Remedy
i. 6th Amendment: Reversal of Conviction
ii. Ethics Rules: Lawyer Discipline
6.4. Duties of Diligence, Honesty & Communication [& TORTURE MEMO NOTES]
6.4.1. Rule 2.1 Advisor
a. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
b. COMMENT 1: A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client
6.4.2. Duty of Dilligence
a. Rule 1.3 Diligence:
1) A lawyer shall act with reasonable diligence and promptness in representing a client
2) COMMENT 1: A lawyer must . . . act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. . . . The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons. . . with courtesy and respect.
6.4.3. Duty of Communication
a. Rule 1.4 Communication
1) (a) A lawyer shall:
i. (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule1.0(e), is required by these Rules;
ii. (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
iii. (3) keep the client reasonably informed about the status of the matter;
iv. (4) promptly comply with reasonable requests for information; and
v. (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
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2) (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
6.4.4. Torture Memos
a. Generally:
1) The Torture Memos, sometimes called the Bybee Memo or 8/1/02 Interrogation Opinion, were a set of legal memoranda drafted by Deputy Assistant Attorney General of the United States John Yoo and signed by Assistant Attorney General Jay Bybee. They advised the Central Intelligence Agency, the United States Department of Defense, and the President on the use of mental and physical torment and coercion such as prolonged sleep deprivation, binding in "stress positions," and waterboarding, and stated that acts widely regarded as torture might be legally permissible under an expansive interpretation of Presidential authority during the "War on Terror." These memoranda have been the focus of considerable controversy, and were repudiated by President Barack Obama in early 2009
2) The "torture memos" include three documents entitled, "Standards of Conduct for Interrogation under 18 U.S.C. sections 2340-2340A," "Interrogation of al Qaeda" (both drafted by Jay Bybee), and an untitled letter from John Yoo to Alberto Gonzales
b. Jay Bybee, then Assistant Attorney General of the United States ofAmerica, addressed a memorandum to Alberto Gonzales, then Counsel to the President, dated August 1, 2002, entitled “Standards for Conduct for Interrogation under 18 U.S.C. 2340-2340A,” in response to the President’s reported request for legal opinion on the U.N. Convention Against Torture and 18 U.S.C. section 2340 and the interrogation of al Qaeda operatives.
1) This is the primary “torture memo,” which defines the Department of Justice’s interpretation of torture, and is relied upon heavily by the subsequent “torture memos.” It discusses the language of the torture statute (18 U.S.C. sections 2340-2340A) in great detail in order to derive its definition of torture, states that “cruel, inhuman, or degrading” treatment is not torture according to that statute, andexamines “possible defenses that would negate any claim that certain interrogation methods violate the statute.”
2) It concludes that torture is only extreme acts according to the Convention Against Torture, that severe pain (a requisite for his definition of torture) is “serious physical injury, such as organ failure, impairment of bodily function, or even death,” that prolonged mental harm is harm that must last for “months or even years,” that “prosecution under Section 2340A may be barred because enforcementof the statute would represent an unconstitutional infringement of the President’s authority to conduct war,” and that “under the currentcircumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.”
c. OPR investigation
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1) The Justice Department's Office of Professional Responsibility reviewed the work of principal author John Yoo, now a law professor, and signatory Jay Bybee, now a federal judge, to determine whetherthe advice given "was consistent with the professional standards that apply to Department of Justice attorneys." In its 261 page final report, the Office for Professional Responsibility concluded that the legal opinions that justified waterboarding and other interrogation tactics on Al Qaeda suspects in American custody amounted to professional misconduct, and that Professor Yoo in particular "knowingly failed to provide a thorough, objective, and candid interpretation of the law," recommending referral to the Bar for disciplinary action.
i. Exaggerated and/or misstated “the significance of authority that supported the desired result”
ii. Ignored and/or failed to discuss adverse authority “accurately andfairly”
iii. Used “convoluted and counterintuitive arguments to support the desired result while ignoring more straightforward and reasonable arguments contrary to the desired result”
iv. Adopted “inconsistent reasoning or arguments to favor the desired result”
v. Advanced “frivolous or erroneous arguments to support the desired result”
2) However, career Justice department lawyer David Margolis in a Memorandum dated January 5, 2010 countermanded the recommended referral. While Margolis was careful to avoid "an endorsement of the legal work" which he said was "flawed" and "contained errors more than minor," he concluded that Yoo had merely exercised "poor judgment" which did not rise to the level of "professional misconduct" sufficient to authorize OPR to refer its findings to the state bardisciplinary authorities.
i. No violation of “clear and unambiguous” ethical standard
ii. Yoo lacked scienter because he had drunk too much of his own Kool-Aid
iii. Divide and conquer approach: no single omission/ exaggeration amounts to misconduct
iv. Post-9/11 context
v. (Political/institutional concerns?)
d. Criticism
1) The memo has been widely criticized. Yale law school Dean and former Assistant Secretary for Human Rights Harold Koh called it "perhaps the most clearly erroneous legal opinion I have ever read" which "grossly overreads the president's constitutional power."Former Nixon White House counsel John Dean, whose name was cemented in the national consciousness by his involvement in the Watergate scandal, concludes that the memo is tantamount to evidence of a war
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crime. On March 9, 2006, after emerging from a closed talk at Harvard Law School sponsored by the student chapter of the Federalist Society, a legal organization, Bybee was confronted by around thirty-five protesters.
2) Yoo's legal opinions were controversial within the Bush Administration. Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions while U.S. Navy general counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" and dangerous extremism of Yoo's legal opinions. Philip D. Zelikow, former State Department adviser to Condoleezza Rice, testified to the Senate Judiciary Committee, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials not only ignored his memos, but attempted to destroy them.
3) In June 2004, the memo was rescinded by Jack Goldsmith, who had taken over OLC in 2003.He called the memo "deeply flawed" and "sloppily reasoned."Nevertheless, Goldsmith has asserted that he "hadn't determined the underlying techniques were illegal." He continues, "I wasn't in the position to make an independent ruling on the other techniques. I certainly didn't think they were unlawful, but I couldn't get an opinion that they were lawful either
6.4.5. Rules That Expressly Prohibit Lawyers From Lying
6.4.6. 3.3(a) Lawyers may not make “false statement of material fact or law” to tribunals.
6.4.7. 4.1(a) Lawyers may not make “false statement of material fact or law” to third persons.
6.4.8. 7.1 Lawyers may not make “false or misleading communication” aboutthemselves or their services.
6.4.9. 8.4(c) Lawyers may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
6.5. Contractual Duties
6.5.1. Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
a. (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
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b. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
c. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
d. (d) 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.
e. COMMENT 9: Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
6.5.2. Who Decides What
a. Comment 2: On occasion, . . . a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. . . . [T]his Rule does not prescribe how such disagreements are to be resolved. . . . If such efforts [to reach a mutually acceptable resolution] are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4).
b. Jones v. Barnes 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed. 2.d 987 (1983) (Respondent presented his appointed counsel with a list of claims on which to base his appeal. His attorney found these to be untenable, and proceeded to argue the appeal on different grounds. Respondent nowclaims ineffective assistance of counsel)
1) Facts. Respondent, David Barnes, was convicted of robbery and assault in New York and attorney Michael Melinger was appointed bythe court to represent him in his appeal. Respondent sent Melinger a copy of a pro se brief that he had written, along with a letter listing several claims that he felt should be raised in the pending appeal. In his response, Melinger explained that many of these claims would not be allowed-as they were based on evidence not on the record-and listen the seven claims that he was considering, requesting Respondent’s input. Receiving no response, he proceeded to appeal the case on those claims and lost. Respondent challenged this decision, claiming
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ineffective assistance of counsel, and his claim was upheld by theSecond Circuit.
2) Issue. Does court-assigned defense counsel in a criminal case have a constitutional duty to raise every nonfrivolous issue suggested by the Defendant?
3) Held. No. Reversed. “No decision of this Court suggests that an indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present thosepoints
6.5.3. Clients with Disabilities
a. Generally: Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
1) (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
2) (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
3) (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
4) (d) 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.
b. Diminished Capacity
1) Rule 1.14 Client With Diminished Capacity
i. (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
ii. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in theclient's own interest, the lawyer may take reasonably necessary
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protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, inappropriate cases, seeking the appointment of a guardian ad litem,conservator or guardian.
iii. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
c. Why Difficult
d. Rule 1.4 Communication
1) (a) A lawyer shall:
i. (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule1.0(e), is required by these Rules;
ii. (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
iii. (3) keep the client reasonably informed about the status of the matter;
iv. (4) promptly comply with reasonable requests for information; and
v. (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
2) (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
e. Representing Children
1) Two principal contexts
i. Juvenile delinquency
ii. Child protection
2) Role of child’s lawyer in delinquency cases
i. See In re Gault, 387 U.S. 1 (1967)
3) Role of child’s lawyer in child protection cases
4) Issue of state law
5) Lawyer, GAL or both?
6) Conn. Gen. Stat. § 46b-129a
i. (2) a child shall be represented by counsel knowledgeable about representing . . . children who shall be appointed by the court torepresent the child and to act as guardian ad litem for the child. The primary role of [such counsel] . . . shall be to advocate for the child in accordance with the Rules of Professional Conduct. When a
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conflict arises between the child's wishes or position and that which counsel for the child believes is in the best interest of the child, the court shall appoint another person as guardian ad litemfor the child. . . .
6.6. Terminating L-C Relationships
6.6.1. Rule 1.16 Declining Or Terminating Representation
a. (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
1) (1) the representation will result in violation of the rules of professional conduct or other law;
2) (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
3) (3) the lawyer is discharged.
b. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
1) (1) withdrawal can be accomplished without material adverse effect on the interests of the client;
2) (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
3) (3) the client has used the lawyer's services to perpetrate a crime or fraud;
4) (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
5) (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
6) (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
7) (7) other good cause for withdrawal exists.
c. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
d. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
6.6.2. Issues in Legal Ethics
a. Paternalism
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b. Conflict of Interest
c. Advocates Role in legal system
7. Lawyer’s Duties to Courts
7.1. Fried v. Gillers
7.1.1. Fried “Role-differentiated behavior” “Neutral partisanship” Lawyer as “hired gun”
7.1.2. Gillers Lawyers as morally responsible for their choices
7.2. 3.1; 3.3; 8.4(c), FRCP 11
7.2.1. Morality and the Adversary System
7.2.2. Pre-Filing Fact Investigation
7.2.3. Truthfulness in Litigation
7.2.4. Nix v. Whiteside (US 1986)
7.2.5. Professor Monroe Freedman’s“Perjury Trilemma”
a. When clients lie, lawyers can’t possibly fulfill all three ethical obligations:
1) Provide competent and diligent representation by investigating/ascertaining all pertinent facts (Rules 1.1, 1.3)
2) Protect information relating to representation (Rule 1.6)
3) Disclose perjured testimony to tribunal (Rule 3.3)
7.3. 3.3, 3.4, 8.4(C)
7.3.1. Where's the line with False Impressions
7.3.2. Concealment of Evidence
a. D.C. Code § 22-723Tampering with Physical Evidence
1) (a) A person commits the offense of tampering with physical evidence if, knowing or having reason to believe an official proceeding hasbegun or knowing that an official proceeding is likely to be instituted, that person alters, destroys, mutilates, conceals, or removes a record, document, or other object, with intent to impair its integrity or its availability for use in the official proceeding. (b) Any person convicted of tampering with physical evidence shall be fined not more than $5,000, imprisoned for not more than 3 years, or both.
b. Attorney Philip Russell
1) Indicted under Sarbanes-Oxley (see P. 640). Plead guilty to misprision of felony, sentenced to: 6 months home confinement $25,000 fine 240 hours community service Agreed to one-year suspension of law license.
c. Concealment/Destruction of Evidence in Civil Cases
1) “It may be difficult . . . to define the point at which legitimate[document] destruction becomes obstruction of justice.” (Rest. 2d §118, Comment C)
2) “The bottom line is that a lawyer should never assume that documents that are or could be pertinent to a civil lawsuit may be concealed or destroyed, even if a suit has not yet been filed.” (Lerman/Schrag, P. 645)
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7.3.3. Disclosing Adverse Legal Authority
a. 3.3; 3.5' 8.4(d)
7.3.4. Ex Parte Proceedings
7.3.5. Improperly Influencing Judge/Jury
7.3.6. Nonadjudicative Proceedings
7.4. 3.6, 3.7; 3.9; 4.1
7.5. Comparison of Rules Forbidding Lawyer False Statements
7.5.1. RULE 4.1(a) In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person...
7.5.2. RULE 3.3(a)(1) A lawyer shall not knowingly . . . 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.
7.5.3. RULE 8.4(c) It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
8. Lawyer’s Duties to Adversaries and Third Persons
8.1. 4.1; 8.4(a); Negotiation Ethics
8.2. Disclosure to Avoid Fraud
8.2.1. RULE 4.1(B): In the course of representing a client a lawyer shall not knowingly . . . fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
8.2.2. REST. (2d) TORTS § 551: One who fails to disclose to another a fact ... is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose [whenever the fact is basic to the transaction and] the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure.
8.3. Deception
8.4. Contact with Represented Persons
8.4.1. Rule 4.2Communication With Person Represented By Counsel
8.4.2. Rule 4.4Respect For Rights Of Third Persons
8.4.3. Rule 8.4Maintaining The Integrity Of The Profession
8.5. Contact with Unrepresented Persons
8.5.1.
8.6. Prosecutorial Ethics
8.7. `Rule 3.8; Comment 1
8.8. Conduct Prejudicial to the Administration of Justice
8.9. Rule 4.2 and Communication with Government Officials
9. Conflicts of Interest
9.1. Overview
9.1.1. Why conflicts are different:
9.1.2. Nature and timing of remedy
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9.1.3. Possibility of offensive use
9.1.4. Different types of conflicts:
9.1.5. Conflicts with present clients
9.1.6. Conflicts with former clients
9.1.7. Why conflicts are difficult
9.1.8. Important issues that cut across all types of conflicts
9.1.9. Consentability
9.1.10. Imputation
9.1.11. Screening
9.2. Steps in Evaluating a Conflict
9.3. 1. Client Identification
9.3.1. Clearly identify each client and determine status (present or former)
9.4. 2. Conflict Analysis
9.4.1. Determine whether a conflict exists
9.5. 3. Consentability Analysis
9.5.1. Decide whether representation OK despite conflict
9.6. Concurrent Conflicts
9.6.1. Rule 1.7Conflict Of Interest: Current Clients
9.7. Former Clients
9.8. Conflicts between Lawyers & Clients
9.8.1. Rule 1.10Imputation Of Conflicts: General Rule
a. (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
b. . . .
c. (c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall represent a client in a matter in which that lawyer is disqualified under Rule 1.9 unless:
1) (1) the personally disqualified lawyer is timely screened from anyparticipation in the matter and is apportioned no part of the fee wherefrom; and
2) (2) written notice is promptly given to the affected former client.
d. (d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
9.9. Jeffrey v. Pounds, 136 Cal. Rptr. 373 (Cal. App. 1977) (Note husband and wife reversed.) Husband fired firm after learning it was representing wife in divorce. Firm subsequently sued for share of fees, and court allowed. Court found that firm should not have agreed to represent wife but excused.
9.10. 1.6 B Revistited BAR BRI Example
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9.10.1. BARBRI Practice MPRE Question A client hired a lawyer to draft a will for him. The client willed his entire estate to a 43-year-old widow. The client told the lawyer in confidence that he was neither a relative nor a friend of the widow. The client explained that he felt a moral obligation to the widow because he had killer her husband, and he had never become a suspect or confessed his sin to anyone. One day after signing the will, the client committed suicide. In due course, all of the client’s assets were distributed to the widow, and the probate court closed his estate and discharged his executor. The lawyer never told the widow or anyone else that the client had confessed to killing the widow’s husband. Now, a few years later, an enthusiastic young prosecutor is charging an innocent man with murdering the widow’s husband in the first degree with aggravating circumstances, and the prosecutor is seeking the death penalty.
9.10.2. Question: May the lawyer voluntarily tell the innocent man’s defense counsel what his client told him in confidence about killing the widow’s husband?
9.10.3. BARBRI’s Answer Yes, the lawyer may tell, but he would not be subject to discipline if he decides not to do so. The controlling doctrine in this case is the lawyer’s ethical duty of confidentiality, not the attorney-client privilege. The lawyer needs to know whether he can voluntarily reveal the client’s confession, not whether he would be forced to do so if he were put on the witness stand in court. ABA Model Rule 1.6(b)(1) states the applicable exception to the ethical duty of confidentiality. A lawyer may reveal confidential information if the lawyer reasonably believes that doing so is necessary to prevent reasonably certain death or substantial bodily harm. One might quibble whether the innocent man’s death is “reasonably certain” when his trial has not even started, but surely the ethics rule should not be read to require the innocent man to order his last meal before being loosed from the executioner’s grip.
9.11. 1.7 Rule; 1.18; 1.13; 1.8;
9.12. frcp 23a
9.12.1. (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
a. (1) the class is so numerous that joinder of all members is impracticable;
b. (2) there are questions of law or fact common to the class;
c. (3) the claims or defenses of the representative partes are typical of the claims or defenses of the class; and
d. (4) the representative parties will fairly and adequately protect the interests of the class
9.13. Special Conflict Issues
9.13.1. Economic conflicts
9.13.2. Conflicts in public interest litigation
9.13.3. Positional conflicts
9.13.4. Conflicts with prospective clients
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9.14. Rule 1.9Duties To Former Clients
9.14.1. (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
a. Applying Rule 1.9:Basic Analysis
1) Is present matter either “same” as, or “substantially related” to, former matter?
i. If no, not a conflict.
ii. If yes, go to next step
2) Are interests of present and former clients “materially adverse”?
i. If no, not a conflict.
ii. If yes, go to next step
3) Has informed consent been obtained and confirmed in writing?
b. Applying Rule 1.9:“Substantial Relationship” Test
1) Law here “maddeningly complex and indeterminate”
2) Outcomes highly fact specific
3) Focus of inquiry = lawyer’s access to potentially harmful info. inearlier matter, not actual information obtained
4) Particular issues:
i. “Playbook” knowledge of former client
ii. Public/obsolete info
iii. Scope of responsibility in former matter
iv. Same standard for discipline and disqualification
v. Suing former clients when no substantial relationship
c. Applying Rule 1.9:Other Issues
1) “Material adversity”
2) Infrequency of waiver requests
3) Conflicts between present clients and those of former firm
4) Governed by Rule 1.9(b)
5) More permissive than 1.9(a)
6) Focus on whether actual confidences obtained
d. Rule 1.9Duties To Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. . . .
1) COMMENT 3: Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would
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materially advance the client's position in the subsequent matter.
e. Screening: Defined
1) Rule 1.0(k)
2) “’Screened’ denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.”
i. Screening: What’s Involved
3) “[S]creening measures that are appropriate . . . will depend on the circumstances. . . . [but may include] such procedures as a written undertaking by the screened lawyer to avoid any communication withother firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files . . . and periodic reminders of the screen to the screened lawyer and all other firm personnel.” (Rule 1.0, Comment 9.)
4) “In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening. (Rule 1.0, Comment 10.)
5) Screening: When Permitted Not permitted to remedy conflicts: Between present clients of a lawyer or firm. Between present and former clients of a lawyer or firm. May be permitted to remedy certain imputed conflicts: Involving former government lawyers (Rule 1.11), former judges and neutrals (Rule 1.12) and prospective clients (Rule 1.18). Involving lawyers who switch firms, where former firm represented client with conflicting interest.
10. Regulation of Law Practice
10.1. 1.15, 1.5, 1.8
11. Provision of Legal Services
11.1. Unmet Legal Needs
11.2. Pro Bono Representation
11.2.1. Pro Bono Publico Service
11.2.2. Rule 6.1Voluntary Pro Bono Publico Service
11.2.3. MRPC
11.2.4. Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
a. (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
1) (1) persons of limited means or
2) (2) charitable, religious, civic, community, governmental and
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educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
11.3. Role of Lay Advocates
12. Other Exam Issues
12.1. Delaware rules and Model Rules
12.2. Tips for success:
12.2.1. Identify all potentially-applicable rules and explain how they bear on problem.
12.2.2. If additional information is needed to fully analyze a problem, state what it is, and proceed to analyze the problem making whatever assumptions and alternate assumptions are necessary.
12.2.3. Avoid a rambling discourse on rules or ethics, unmoored from the analytic task at hand.
12.2.4. Avoid merely listing and/or quoting rules seriatim-style, with no explanation of their application.
12.2.5. Begin but don’t end your analysis with the rules, and remember that the resolution of certain issues will necessarily require closer textual analysis than others.
12.2.6. Other Exam Issues
12.2.7. Assessment (from last year’s exam):
12.2.8. “Answers will be evaluated primarily on the basis of depth of analysis, cogency, creativity, and doctrinal insight. Although spotting all or most of the important issues in a given problem is crucial, I generally value depth over breadth. I therefore am more likely to overlook a missed issue in an otherwise thoughtful answer than to reward an answer that correctly identifies all issues raised by a fact pattern but analyzes them superficially.”
D. Summary (Concise Traditional)
1. Introduction and the Role of The Lawyer
1.1. Prof Responsibility - about relationships of lawyers to their clients, their peers, the justice system, the profession and the public
1.2. Moral Philosophy & The Law:
1.2.1. MP informs the study of PR law, but does not replace legal analysis as tool for determining application of PR Law
1.2.2. More than right and wrong
1.2.3. Law governing lawyers is complicated mix from different areas of law and different sources
1.2.4. Role Morality - Balance process many duties, some conflict and compete
1.3. Role of the Lawyer
1.3.1. Different Conceptions
1.3.2. Different Roles
1.3.3. Different Practice Settings
2. Regulation of the Legal Profession
2.1. Organization of the Bar
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2.1.1. ABA - Volunteer association
2.1.2. Alternative Associations
2.1.3. State Associations - Some states have mandatory membership requirements
2.2. Sources of Law Governing Lawyers
2.2.1. Ethics Codes
a. ABA Beginning in 1908
b. States - Adopted (all but one follow ABA) - State Code Controls
2.2.2. Case Authority
a. Interpretation of Code
b. Inherent Power to regulate lawyers
2.2.3. Ethics Opinions - relied upon by court from ABA and state associations
2.2.4. Restatement: 3rd Retme of the LAW GOVERNING LAWYERS
2.2.5. Constitutional Restraints
2.2.6. Other Law
2.3. Admission to Practice
2.3.1. State has need to protect public from incompetence and those who lack integrity
2.3.2. General Requirements:
a. Education
b. Knowledge - Bar Exam
c. Good Character
d. Misconduct in Application Process - No material false statement, or failure to disclose fact (MR 8.1(b)
e. No assistance to unqualified person - duty bound not to assist in admission of unqualified applicant (MR 8.1)
2.3.3. Federal Bar - separate
2.3.4. Pro Hoc Vice
2.4. Unauthorized Practice
2.4.1. Civil and Criminal penalties possible
2.4.2. Court Appearance OR legal advice and counsel
2.4.3. Forms of Unauthorized
a. Extra territorial
b. Multi JX Practice (see MR 5.5)
c. Unlicensed practice (realtors, bankers, insurance is most common)
2.5. Self Governance and the Duty to Report Misconduct
2.5.1. Reporting Requirement Chief feature of self-governing (MR 8.3)
2.5.2. Must have knowledge of misconduct (MR 8.3(a); 1.0(f))
2.5.3. Substantial question as to integrity, honesty, fitness (8.3(a)) and substantial means material matter of clear and weighty importance (1.0(i))
2.5.4. Confidentiality Limitation on Duty to Report
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a. No Duty to report if lawyer learned through confidential communication under MR 1.6 or 8.3(c)
b. Exceptions to confidentiality continue to apply
c. Possible defamation filed by reported-on lawyer
3. Controls on Lawyer Conduct
3.1. Discipline
3.1.1. Rarely imposed
3.1.2. Protection of public and of profession
3.1.3. Broad ranged grounds in and out of court and profession
3.1.4. Forms of Discipline
a. Disbarment
b. Suspension
c. Reprimand - Statement of reproach - published public or private from the bar
d. Procedure - no appeal for aggrieved party - designed arrounf goal of bar discipline rather than as a benefit to the complainant
3.2. Malpractice - Civil Claim for relief intended to remedy a wrong done by a professional to an individual or group of clients
3.2.1. K Theory
3.2.2. Tort Theory - Most Common
a. Duty
b. Breach
c. Causation
d. Damages
3.2.3. Fiduciary Duty
3.2.4. Expert testimony required
3.2.5. Limitation on malpractice liability (MR 1.8(h); DR 6-102)
3.2.6. 3rd part liability - in some instances
3.3. Liability for Client Conduct
3.3.1. Cannot counsel a client to engage or assist a client in conduct that lawyer knows is criminal or fraudulent (MR 1.2(d))
3.3.2. Also may be criminally and civilly liable for wrongs of the clients that a lawyer assists
3.4. Contempt of Court - considerable control on conduct of lawyer in litigation setting
3.5. DQ Motions
3.5.1. Conflict of Interest DQ
a. Substantive Standards - substantially same including shielding or Chinese wall
b. Other interest considered including delay
3.5.2. FRCP Rule 11
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a. Money sanctions are available against an offending lawyer under frivolous claims prohibitions
b. MR 3.1 is like FRCP 11
c. Friv claims lack basis in law or fact
d. Notice is required before FRCP 11 can be filed
e. Sanctions available against lawyer and his firm under FRCP 11
f. Possible application to oral argument (see also 28 usc 1927)
4. Formal Aspects of the Lawyer-Client Relationship
4.1. Generally: Ltd duties before undertaking representation. Full range of duties following the undertaking
4.2. Undertaking Representation
4.2.1. No duty to undertake
4.2.2. Ltd duty for court appointments and some pro bono
4.2.3. Duty to reject when representation violates ethics rules or other laws (MR 1.16(a))
4.2.4. relationship does not depend upon written contract
4.3. Fees
4.3.1. Regulated for amount and nature under MR 1.5
4.3.2. Must be Reasonable [MR 1.5(a)]
4.3.3. Written K preferred
4.3.4. Contingent Fees [MR 1.5(c)]
a. Must be in writing
b. Must provide ending statement (disposition and calculation of fee and expense)
c. Not allowed in domestic and criminal cases
4.3.5. Fee Splitting
a. Ok in same firm
b. 1.5(e) governs different firms
1) Total fee must be reasonable
2) Client must agree to arrangement
3) Share in proportion or accept joint responsibility for representation
c. OK with former partners pursuant to profit share, separation agreement, or retirement plan
d. NOT OK with Non-Lawyers
e. No minimum fee schedules
f. Subject to civil asset forfeiture
4.4. Fiduciary Duties
4.4.1. FD are in addition to K and Tort Duties
4.4.2. General Role: one in whom a special trust is placed. Fiduciary owes to beneficiary scrupulous good faith, candor, and care in the management of the beneficiaries interests
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4.4.3. Handling of client money
a. Violations most serious
b. Client trust accounts kept separate [MR 1.15(a)]
1) No Commingling
2) Prompt delivery and accounting [(MR 1.15(d)]
4.5. Competence and Diligence
4.5.1. Core Lawyer Duties [MR 1.1, 1.3]
4.5.2. Competence requires that the lawyer possess and exercise on the client's behalf the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation [MR 1.1]
a. Distinct from malpractice
b. Does not require expertise at beginning of representation, provided the lawyer will be able to acquire the necessary knowledge with reasonable diligence
c. Basic knowledge and skills required [MR 1.1 comment]
d. Ltd assistance unskilled in emergency
4.5.3. Diligence is the timeliness aspect of competence. Lawyers are obligated to be diligent on their client's behalf [MR 1.3]
a. Expediting matters [MR 3.2]
b. Starting and Stopping most common complaint
c. Misleading about progress is many disciplinary cases over diligence
d. Excuses mostly rejected by courts
4.6. Communication and Shared Decision Making
4.6.1. Lawyers owe a duty to communicate with clients and to meaningfullyshare decision making responsibilities with them [MR 1.2 and 1.4]
4.6.2. Communication is critical to maintaining a quality relationship. Must respond to reasonable requests for info [MR 1.4(a)]
4.6.3. Shared Decision-Making
a. Scope of Representation -
1) negotiated by contract
2) Duration is negotiated
3) Subject matter is negotiation
b. Means and Ends: Clients set goals, lawyers empowered to determine best means to obtain those goals [MR 1.2(a) Comment]
c. Lawyers representation does not implicate lawyers sharing of responsibility for the client's cause or views regarding matters relevant to the reperesner4tation [MR 1.2(B)]
d. NO counseling crimes or frauds [MR 1.2(d)]
1) Disciplined and subject to criminal and civil liability
2) Exception: no prohibition from discussion proposed courses of action or assisting in pursuit of test case
e. Lawyer must attempt to maintain ordinary lawyer-client relationship to
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extent possible with disable clients [MR 1.14]
4.7. Terminating Representation
4.7.1. Generally
a. LC Relationship ends at termination
b. Duty of confidentiality and limited duty of conflict avoidance remains
c. Withdrawal is a critically important device, esp if continued rep will result in viol of law or rule
4.7.2. Rejection of representation is form for termination
4.7.3. Mandatory withdrawal under some circumstance [MR 1.16(a)]
a. Violate ethics rules [MR 1.16(a)(1)]
b. Violate Other law [MR 1.16(a)(1)]
c. Lawyers physical or mental state is impaired [MR 1.16(a)(2)]
d. Lawyer is discharged [MR 1.16(a)(3)]
4.7.4. Permissive Withdraw in other circumstances [MR 1.16(b)]
a. No Harm to client [MR 1.16(b)(1)]
b. EXCEPTIONS
1) Lawyers reasonable belief that client is acting criminally or fraudulently [MR 1.18(b)(2)]
2) Past use of service for crime or fraud [MR 1.18(b)(3)]
3) Client actions are repugnant or imprudent [MR 1.18(b)(4)]
4) Client failure to meet obligations [MR 1.18(b)(5)]
5) Unreasonable financial burden [MR 1.18(b)(6)]
6) Client unreasonably difficult to work with [MR 1.18(b)(6)]
7) Other good cause [MR 1.18(b)(7)]
c. Court could order continued representation despite cause [MR 1.16(c)]
d. Procedure to Withdraw
1) Notice to clients [MR 1.16(d)]
2) Court approval when litigation is pending [MR 1.16(d) Comment]
e. Duties upon termination
1) Reasonable measures to minimize hard to client upon termination [MR 1.16(d)]
2) Unearned fee refund
3) Return of paper and property
4) Clients continues to owe obligation for unpaid yet earned fees
i. Quantum Meruit for hourly
ii. Cont dependant upon whether discharge was for cause or not
5. Confidentiality
5.1. Duty of Confidentiality and the Atty-Client Evidentiary Privilege
5.1.1. Secrets & Confidences
a. Model Code [DR4-101] defines the scope of the duty of confidentiality as the sum of the material protected by the evidentiary atty-client privlege
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[referred to as confidences] and the material that, although not included in the attorney-client evidentiary privilege, would be embarrassing or detrimental to the client if revealed or that that the client has expressly requested be held in confidence [referred to as secrets]
b. Model Rules abandons and adopts more general and inclusive definition of "information relating to representation of a client [MR 1.6(a)]
c. Scope of the A-C-P: When info is within the ethical duty of confidentiality but outside the protection of the evidentiary privilege, a judge may order the lawyer to speak in form of testimony or otherwise. Coverage of the evidentiary privilege largely determines whether compulsion will be well founded
d. Parameters of the Evidentiary Privilege
1) Generally: Created when a client or prospective client communicates in confidence to a lawyer who is being consulted as a lawyer
2) Clients or Prospective
3) Desire of Confidentiality Required
i. Not created when circumstances do not indicate desire for confidentiality
ii. Eavesdroppers: If client exercises reasonable care to avoid being overheard or intercepted, the court should rule the eavesdroppers testimony inadmissible
iii. Multiple Clients: Each holds a privlege that can be asserted against 3rd parties but none of them can prevent others among the prospective clients from testifying or otherwise waiving privilege. Their collective communication indicates an absence of desire for confidentiality within the group
4) Communication, Not knowledge
5) Privilege protects lawyer observations that result directly from the clients protected communications as long as lawyer does nothing toprevent other interested parties from making the same observation
6) Physical Evidence - items collected by lawyer are not privileged
7) Exceptions: Many of the Exceptions to DOC are paralleled by Exceptions to the Evidentiary privilege
i. Client holds privilege (and controls its assertion)
ii. Future crimes and frauds [crime fraud exception]
5.2. To Whom is the Duty (of Confidentiality) Owed
a. Communication from agents of an organizational client are within the evidentiary privilege and therefore, within the DOC if:
1) Info communicated is treated as confidential within the organization
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AND
2) It is communicated to lawyer to that the lawyer can give advice orcounsel to the organization
b. Gov't Agency Client: Govt lawyers strike a confidentiality balance more toward public interest of disclosure of gov't wrongdoing
5.2.5. Client and Lawyer Agents - Extends as if the same
5.3. To What does the Duty Apply
5.3.1. Generally: applies to "information relating to representation of a client [MR 1.6(a)] MC def uses secrets and confidences
5.3.2. DOC OR Evidentiary Privilege: For EP, info must come from client or agent. For DOC merely. relate to representation, can come from a third party
5.3.3. DOC is broader than the ACP - All info not merely lawyer-client communication
5.3.4. Also related work-product doctrine
5.4. Exceptions to the Duty of Confidentiality
5.4.1. Consent: Client can give informed consent to disclose [MR 1.6(a)]
5.4.2. Implied Authorization: To carry out the purposes of the representation, some info must be disclosed
5.4.3. Self Defense Disclosures
a. To establish a claim or defense on behalf of the lawyer on a controversy between the lawyer and the client
b. To establish a defense to a criminal charge or a civil claim against the lawyer based upon conduct in which the client was involved [MR 1.6Comment 8]
c. To respond to allegations in any proceeding concerning the lawyer's representation of the client
d. Disclosure limited to facts necessary to defend
e. limit disclosure to individual who need to know
5.4.4. Future Crimes & Future Harms
a. Distinguish MR 1.6(b)(1) AND Model Code [DR 4-101(c)(3)]
b. Distinction Past Crimes and Frauds subject to DOC and ACP
c. Policy rationale - when lawyer knows client intends to commit a future crime or fraud and the lawyers services are used, the lawyer will share both eh moral and legal responsibility of the wrong
d. Model Code [DR 4-101(C)(3)] Exception for future crimes or frauds is broad but permissible. Under the code, a lawyer "may reveal the intention of his client to commit a crime and the info necessary to prevent the crime"
e. Model Rules:
1) Before 2002 was permissive like code BUT restricted to imminent death or substantial bodily harm and lawyer had to believe it was likely
2) Feb 2002 Amendment to MR 1.6(b)(1) - allows lawyer to reveal confidences "to the extent the lawyer reasonably believes necessary to
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prevent certain death or substantial bodily harm. [future harm asopposed to future crime because it requires no criminal act by theclient for a trigger]
3) Aug 2003 Amendment to MR 1.6 now permits disclosure "to the extent the lawyer reasonably BELIEVES NECESSARY:
i. To prevent reasonable certain death or substantial bodily harm
ii. prevent client from committing a crime or fraud that is reasonablycertain to result in substantial injury to the fin interests or property of another and in furtherance of which the client has used or is using the lawyers services
iii. prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyers services
iv. To secure legal advice about the lawyer's compliance with these rules
v. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or defense to lawyers criminal charges based up[in conduct in which client was involved, or to respond to any allegations in any proceeding concerning the representation of the client
5.4.5. Other PR Riles - Some ethical rules require or permit lawyers to disclose otherwise protected information
5.4.6. Other Law - May reveal when required to do so by law or by order of the court
5.4.7. General Knowledge - Duty is lost if info is generally known such that continued protection will serve little purposes
5.5. Other - wide range of lawyer duties impose requirements on lawyers only when the duty does not offend the DOC
5.6. Use for Lawyer's Benefit - Generally restricted since lawyer is agent of the client [Model Code 4-101(b)(2); 4-101(b)(3)]; Model rules kept only explicit restriction on using it to client's detriment [MR 1.8(b)] Distinction rarely important because disadvantage to client will almost always occur where there is advantage to lawyer because of agency law
6. Conflicts of Interest
6.1. Loyalty and Other General Principles
6.1.1. Loyalty is basic to the lawyer-client relationship
6.1.2. Independence: Lawyers owe clients a duty of independent professional judgment. When the independence is threatened by some interest other than the cleinsts, a conflicts question is present and requires analysis
6.1.3. Implications of confidentiality: Many conflict questions are primarily about breaches of confidentiality
6.1.4. Direct adversity: easy when lawyer attempts to represent directly adverse interests
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6.1.5. Material limitations on representation: the application of many of the conflicts rules is triggered by a determiniation of whether the conflict "will materially limit the lawyers representation of the client "See MR 1.7(b) This standard is objective
6.2. Organization of the Model Rules Provision on Conflicts
6.2.1. Model Rules conflicts provisions are found in MR 1.7 through 1.13 and 1.18
6.2.2. General Rule: MR 1.7 sets out the general standards for conflicts of interest analysis
6.2.3. Specific Transactions: MR 1.8 sets out a series of specific rules that appoly to particular lawyer-client trnasactions
6.2.4. Special problems of former clients is covered by MR 1.9
6.2.5. Prospective clients: New rule, February 2002, MR 1.18 defines and identifies duties owed to prospective clients
6.2.6. Role-relevant rules: Conflict rules that apply to lawyers in particularlawyer roles are found in MR 1.11, 1.12 & 1.13
a. ABA amended MR 1.13 in August 2003 b/c various corporate securities decalcations. Amended rule retains the actual knmowledge standard - but expands the lawyer's obligation to report misconduct. SAR-OX Act also create restrictions on certain corporate lawyers
6.2.7. Imputed DQ MR 1.1.0 provides general imputed DQ rules. Also found in 1.9, 1.11 & 1.12
6.3. Waiver of Conflicts
6.3.1. Rationale: Because most conflicts put client interests at risk and because client autonomy and decision making are values, cleitns are empowered to waive most conflicts of interest
a. The gross conflict exception: The general rationale of honoring client autonomy does not apply when the conflict is sufficiently gross to make any client waiver suspect [MR 1.7(b)]
b. Interest-other-than-the-clent's Exception: No general rationale when conflicts rule is less about risk to clinet interersts than it is about risks to justice system interests
6.3.2. Elements of waiver: At a minimum, a conflicts-of-interest waiver requires informed consent by the client. Some of the conflict rulkes that allow waiver require more than informed consent [see MR 1.8(a); (f)]
6.4. Sources of Conflicts: 3 primary sources of conflicts: 3rd party interfernece; lawyer interst; multiple client interests
6.4.1. 3rd party interference
a. MR 1.7(a)(2)
b. Conflicts occur when someine who is not a party to the lawyer-cleint relatinship seeks to affect ot becomes positioned toaffect the independence of the lawyers judgment on behalf of the client
6.4.2. Lawyer-client conflicts
a. General Principles
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1) Material Limitation:
i. COI only when lawyer;'s representation of a clkient will be materially limited by lawyer's personal interests
ii. 1.7(a)(2)
2) Waiver
i. Possible if lawyer reasonably beleieves that the lawyer will be able to provide competent anf dillegent representationm to the client anf the client gives informed consent, in writing
ii. MR 1.7(b)
b. Particular Transactions: Specifric rules govern certain tyoes of transacytions
1) Business Transactions
i. MR 1.8(a)
ii. Requires client consent in writing
iii. Requires clkient be advised of "desireabilty of seeking and given oppy to seek advice of independent counsel
2) Literary Rights - Prohibited from negotiating until conclusion if representation [MR 1.8(d)]
3) Beneficial Drafting Instruments [MR 1.8(c)] prohibited if substantial gift is made to lawyer of lawyers family by the document UNLESS related
4) Sexual or amorous relations with clients [MR 1.8(j)] prohibits unless relationship predates representation
5) Agreements limitiing lawyer's liability [MR 1.8(h)] - prohibited to limit malpractice by contract unless state law allows and client is indeopendently represented in the contract
c. Lawyer-client conflicts with Champerty, Barratry and Maintenance
1) Concerned with stirring up or maintaining litigation
2) Cannot advace funds [MR 1.8(e)]
3) Cannot acquire interest in litigation or subject matter [MR 1.8(i)]
4) Cannot be waived by client
d. Misc lawyer-conflict riles
1) Using CI to the client's detriment - Prohibited always [MR 1.8(b)]
6.4.3. Multiple Client Conflicts
a. Generally: implicates current representation of multiple clients as well as conflicts between former and current and prospective with current and with former clients
b. Concurrent Clinets: Variety of types
1) Directly Adverse: easiest [MR 1.7(a). Multiple representation of clients whose interests are in direct conflict is prohobited and cannot be waived.
2) Adverse in unrelated actions: In general, such a conflict may not be waived byt when the adversioty is general, waiver is permitted
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3) Same-side multiple-client representation: Must use conflict analysis here too.
c. Prospective and current clients [MR 1.18]: Lawyers owe prospectiveclients a limited loyalty duty and the duty of confidentiality. Conflict breaches are a primary consideration in multiple-client conflicts analysis. Conflicts analysis must be done on potential conflicts between prospectvive and current or former clients.
d. Former and current clients: The Substantial Relationship test: duty of loyalty owed; full measure of confidentiality. so when directly adverse or substantial relationship between the two representiaions. such conflict is waivable by both clients by informed consent [MR 1.9]
e. lawyer for an organization [MR 1.13] Lawyer represents the corporation not the officers. May represent both when interests converge. BUT lawyer must withdraw if the interests of the organization and the officers diverge.
f. Positional conflicts of interesy [mr 1.7 comment 24] Conflict if there is a significant risk that the lawyers action on behalf of one client will materially limit the lawyer's effectiveness in representinf another client in a differnet case. Same or different court matters
6.5. Imputed Conflicts
6.5.1. Generally: COI of lawyer imputes to all of the lawyers in the firm
6.5.2. Basic Issues: based on idea that CI is effectively possessed by all lawyers in the same firm
6.5.3. Motions to DQ: favored tactical device in litigation.
6.5.4. Ambulatory Lawyer: lawyers changing fimrs has increased imputed DQ
6.5.5. Screening Defenses: [support in MRs 1.10; 1.11; 1.12] effective screening will prevent the apoplication of the imputed DQ rules. Chinese wall defense.
6.5.6. Other Interests at play in the motion to DQ - several factors considered
6.5.7. Special Role-related imputed DQ Rules - special rules for former govt lawyers and former judges
6.6. Special Role-Related Conflict Rules
6.6.1. Former Judge [MR 1.12]
6.6.2. Former Government Lawyer [MR 1.11]
6.6.3. Lawyer as witness [MR 3.7]
7. Duties to Third Parties
7.1. Generally: Operate as limits on the primary duty the lawyer owes to a client. in other words, the operate to form boundaries around acceptable, client favoring actions by lawyers.
7.2. Truth Telling Outside the Court Context:
7.2.1. Generally: Rules inside and outside of court contrast
7.2.2. False Statements of Material Law or Fact: Must be both false and material.
7.2.3. Fraudulent statements and silences: [MR 1.0(d):] Lawyers are prohibited
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from making staments that are fraudulent or remaining silent when the statement or silence would amount to fraud under applicable tort principles.
7.2.4. Negotiation Setting [MR 4.1 COMMENT] Element of misleading is present in the negotiation process. Differences wheteher statement is to and/or from party or lawyer
7.3. Harassment & Other Abusive Conduct
7.3.1. In General
a. Unlawful Actgs by lawyers: prohibited from engaging or using agents to engage in unlawful acts on behalf of clients
b. Assisting client in commiting unlawful or fraudulent acts: may counsel about the legal consequences of a course of conduct proposed by clinet but prohibited from counseling a client to engage or a assisting a client engaged in criminal or fraudulent conduct [MR 1.2(d)]
c. Harassing Conduct [MR 4.4(a_ prohibits lawyer from using means that have no substantial purpose other than to embarass, delau, or burden a third person.
7.3.2. Opposing Parties: Special category of third party
7.3.3. Witnesses cannot harass. [MR 4.4(a) and cannot use inlawful means to gather evidecne from witness.
7.3.4. Jurors: lawyers prohobited frp, engaging in live contact investigations of jurors and from harassing conduct "duty to justice system" Investogation allowed throughh 4.4(a)
7.4. Threatening Criminal Prosecution: Prohibited by Model Code under DR 7-105. MR same effect by reliance on 4.4(a)
7.5. Communicating with Represented Persons
7.5.1. Generally [MR 4.2] lawyers prohibited forem communicating about the subject matter of a dispute with represented opposing parites without first obtainign permission from that parties lawyer
7.5.2. Parties and Persons: Includes represented persons even if not a formally a party to the active litigstion
7.5.3. Who is an opposing party or person
a. Mere Witness - not a party 4.2 does not apply
b. Organizational parties 4.2 prohibits communication between opposing lawyer and employee with managnment responsiobilities for the subject of the matter, employees whose acts or omissions may be imputed to the organzation with respect to the subject matter; and, employees whose stmt may constitute an admission attributable to the organization
c. Former Employees - controversial as to whether 4.2 covers former employesss. Majority and ABA say former employees are not parties for 4.2 purposes. distiguish base on category of employee at issue and that employees relationship to the matter see comment 2
d. Class Action - class members are parties for 4.2
7.5.4. Obtaining Permission - consent of opposing party atty
7.5.5. Authorized by law - allowed if authorized by law
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7.5.6. Authorized by Court Order - new amendment allows court order to circumvent consent
7.5.7. Special Criminal Practice concerns - 4AR and 5AR due process and 6AR counselrestrain prosecutors beyond 4.2 Prosecutors argue crime investigation is not restricted by 4.2
a. Added Constituional limits
7.5.8. Investigation of a crime
7.6. Communicating with Unrepresented Persons
7.6.1. Generally: Not prohibited but restricted under MR 4.3
7.6.2. Avoid misleading about the lawyer's interst
a. Affirmative Duty: refrain from stalling or implying that lawyer isdisinerested
b. Clarifying Duty - must clarify role when lawyer reasonably should know that an unrepresented person misunderstands the lawyer's interes
7.6.3. Giving Advice - only can advise to obtain counsel
7.6.4. Fact Gathering - not prohibioted under 4.3 so long as no advice is given
7.7. Civil Liability to Third Persons
7.7.1. Generally - in limited circumstyances, a lawyer may have civil liability for wrongful or negligent lawyering outseide of the lawyer client relationship. Lawyers do not owe duty to third party to support negligence
7.7.2. Intended Beneficiaries of the lawyer's work for a client: Duty of care owed to that third person beneficiart
7.7.3. Invited Relioance - DOC when lawyers work for client soecifically invites the relaice of a third person
7.7.4. Assisting clients in breachingfiduciary duties - duty to be3neficiary requires lawyer to refrain from assisting fiduciary to beach the fiduciary dityes
7.7.5. Preventing cleint harm to a third person: highly controversial and not widely accepted liability to lawyers who know that a client will harm a third person and fail to engage in reasonable steps to prevent the harm
8. Duties to the Legal System & Society
8.1. Generally - Conflicts between client and court duties
8.2. Truth Telling in the Court - stricter than in out of ocurt
8.2.1. Statements to Opposing Parties Candor requirement out of court to opposing parties is same as in litigation.
8.2.2. Fact Statments to the Court prohibited from knowingly making falsestatements of material fact or otherwise fraud [MR 3.3(a)]
a. Generally - despite candor, no onligation to reveal unfavorable facts, but must disclose material facts when "disclosure is necessary to avoid asssiting in a criminal or fraudulent client act [MR 3.3(a)(1)
b. Ex Parte Proceedings [MR 3.3(d)] Must disclose favorable and unfavorable material facts
8.2.3. Perjury: Difficult problem for lawywer especially when client is doing the perjuring
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a. General Duty to refrain from offering false evidence [MR 3.3(a)(3)] Lawyer prohibited from offering evidence lawyer knows is false
b. Discretion to refuse to offer some evidence {same} may refuse to offer evidence lawyer reasonably believes is false
c. Perjury by a witness - if by witness other than client - must promptly reveal to court under 3.3(a)(3)
d. Perjury by a client - unlikke model code which distinguishe client and witness perjury, under MR, lawyer must report [MR 3.3(a)(3); DR 7-102(B)
1) Generally [MR 3.3(a)(3); DR7-102(B)]
2) Knowledge before the perjury: lawyer must attempt to dissuade, attempt to withdraw, and take remedial measures including disclosure to court
3) knowledge gained after the perjury - must encourage client to rectify. MRC says, if not rectify, must reveal the perjury if learned before proceeding coinclude. No obligation to reveal if does not learn until after conclusion of proceeding [MR 3.3(c)]
4) Duty applies despitre confidentiality - Trumps confidentiality under 1.6 under 3.3(c)
5) Disticntions between criminal and civil representation [more complex in criminal see 3.3(a)(3)
6) Other suggested options - narrative testimony, refusing to call client, exempting of counsel in criminal cases
e. Law Statements to the Court - Prohibited from giving false statements but as an advocate, need not reveal objective analsysi to the court, may make any nonfrivoulsous arguments under 3.3(a)
f. Disclosing Adverse Authority
1) Generally - Lawyers are obligated to disclose controlling directly adverse authority {MR 3.3(a)(2)] to the court
2) To Opposing Parites - no obligation
3) To the Court - obligated IF:
i. Controlling: Mandatory authority must be disclosed
ii. Directly Adverse: Authority that does not require extened analogy
iii. Contesting the Disclosed Authority: disclose does not prevent contestm,ent, inapplicable, distinction, wrong
8.3. Suppressing Evidence and Witness Payment
8.3.1. Generally - lawyer is limitred in ways in which witnesses may be compensated and in instructing witnesses about whether to make themselves availble for testimony or interview from opposing side
8.3.2. Suppressing Witness availabilty [MR 3.4(f)] prohibited from requesting or adving to refrain from cooperation with another litigant
a. Procuring witness unavailaibilty No dissasion allowed [3.4(a)]
b. Instructing witness to coopoerate only if subpoenaed - genrally not alloerd
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c. Exception - allowed if witness is a relative, employee, or agent of client and the lawyer reasonably beliebes that the request will not harm the witness [MR 3.4(f)(2)]
8.3.3. Witness Payment Rules
a. Lay - statutory fee and expenses [MR 3.4 Comment 3]
b. Expert - pay professional fee for someone in that field and reasonable expenses but not a contiingent fee [MR 3.4 comment 3]
8.4. Limitations on Presentations to A Court
8.4.1. Frivolous Claims and litigation positions - Lawyers are prohibited from bringing frivoulos actions or taking frivolous litigation positions
a. Generally - Several forms of restreiction
b. Ethics Code Limits [MR 3.1] prohibits like FRCP 11
1) Frivolous Ckaims Rule
i. Whgat is Frivoulsous -0 lack legal or factual basis
ii. Distinction Civil and Criminal Cases - prosecutors have special obligations regarding meritorious charges
2) Discovery and other Pretrial Conduct if to delay is prohibited [MR 3.4(d)]
3) Expeditring Litigation - Obligation to expedite to extent this is consistent with client interests [MR 3.2]
c. FRCP 11 and other Sanctiuons - Sanction liabiliyt beyond disciplinary liability
8.4.2. Personal Opinion - no personal opinion to jhurors about justness of clinet cause, credibility of witness, culpability, guilt, or innocence [MR 3.4(e)]
8.4.3. Alluding to matters outside the record [3.4(e)] prohibited from undermining evidence
a. generally - must be relevant or supported by admissible evidence
b. Reasonable lawyer standard - do not allude if reasonable lawyer would recognize lack of support oif admissible evidence
c. Certainty not required - need not be certain it wont be admitted
d. Outside Lawyer's control - must notr allude if no control, until evidence is admitted
e. Matters already ruled inadmissible - prohibited if ruled inadmissible
8.4.4. Obey Court Orders - must obey and make reasonable efforts to preserve record for challenge on appeal
8.4.5. Intemperate remarks - 1AR protects lawyer expression, butr lawyers subject to discipkine for intemperate remarks that serve no useful purpose
8.5. Obligation to Improve the Legal System - [MR Preamble; MC Canon 8]
8.6. Limitations on Litigation Publicity
8.6.1. Generally [MR 3.6; 3.8(g)] limits what lawyers, especially prosecutors, can say to media regarding pendinging litigation and criminal investigations
8.6.2. Constitutional Challenge - orginal rule void for vagueness
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8.6.3. General Standard - prohibited against statemnts whose possible effects, a reasonable lawyer, would know to materially prejudice the matter [MR 3.6(a)]
a. Out of Court - this does not apply in court
b. Likely to be disseminated by publiuc communications - only stmts that reasonable stmt maker would expect to be dissementated by means ofpublic communication
c. Materially prejudice a matter - lawyer knew or reasonably should known
8.6.4. Permitted statements [MR 3.6(b) - some allowed
8.6.5. Exception for dtatements not necessary to protect the client - can make to counter effects of public statement by other side [3.6(c)]
8.6.6. Prosecutor's supervision - special duty for prosecutors under [MR 3.8(f)]
8.7. Ex Parte Contact with Judges & Jurors
8.7.1. Generally - strictly regulated can seriously undermiune the justice system and fairness
8.7.2. Judges - usually prohibited [MR 3.5(b)
a. Subject Matter
1) Unrelated Matters - if totally unrelated then not ex parte because no party
2) Housekeeping Matters - permissible
b. No Intent requirement - even innocent communciation is prohibited
c. Authorized by law - emerg TRO, etc.
d. Oral or written communications - applies to all forms of communicayion
e. Prohibited even if initiated by judge
8.7.3. Jurors [MR 3.5(c)]
a. Generally
b. Before and during proceedings - none
c. After proceedings end - limited contact for benign purposes of determinign presentation manner
d. Reporting juror misconduct - duty to report
8.8. Pro Bono Work - encourage
8.8.1. Organized legal Services - through bar and public agencies
8.8.2. Individual lawyer's duty MR 6.1 - comes closest to mandate but is still aspirational
9. Special Role-Related Duties
9.1. Prosecutors - [MR 3.8] must avoid conflicrs between private rep and duty to seek justice on behalf of public
9.2. Supervising and Subordinate Lawyers
9.2.1. Generally -
9.2.2. Lawyers subordinate to other lawyers
a. General - subordinates not relieved of prof conduct duty by order of supervisor [MR 5.2]
b. Exception - subordinate not liable when she acts in accordance with
9.2.3. Lawyers Supervising lawyers [5.1 responsible for providing reasonable supervision]
a. Providing supervision - discipline for failurte to provide adequate supervision
b. Responsibility for subordinate's misconducrt if ordered or ratified or learns and fails to take reasonable remedial action
9.2.4. Lawyers supervising nonlawyers - same as supervisiong lawyer subordinates
9.3. Lawyers as Intermediaries
9.3.1. Generally [former MR 2.2] achieve foals and interests of multiple paries
9.3.2. Requirements - clients must consent after consultation and lawyer must believe can represent imparitally
9.3.3. fConfidentialty - do not apply as between commonly represented parties [Evidentiary priv and duty of conf]
9.3.4. Withdrawal - must withdraw if any of the requirementrs ceases to be met
9.4. Ancillary Business
9.4.1. Generally subject to rules of PC if
9.4.2. General Rule
a. Not Distinct [MR 5.7(a)(1)] not distinct from lawyer's legal services
b. Failure to Communicate to client [MR 5.7(a)(2)] must inform clients that this is not legal services and not protected like normal lawyer-cleint relationship
9.4.3. What are ancillary services - law-related that are not prohibited by unautohoirzed practice if being performed by a non-lawyer [MR 5.7(b)] Side businesses are not ancillary
9.5. Multi disciplinary Practice
9.5.1. Definition - entity includes lawyers and nonlawers - like a consulting firm
9.5.2. Accountants
9.5.3. Professional Independence [MR 5.4] protect independent judgemnt
9.5.4. Other Concerns - enron -- defacto MDP are more difficult and less profitable
10. Advertising and Solicitation
10.1. Model Code provisions outdated anbd misleading'MR treat advertising [7.2] and solicitiation [7.3] differently
10.2. General restriction on both found in 7.1; 7.4 and 7.5
10.3. Truthfullnes
10.4. Record Keeping
10.5. Protected Commericial Speech
10.6. No duress or coercion for live solicitiation
10.7. no agents or runners for lawyers [MR 5.3((c)]
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II. Combined Final Outline [The Main Event]
A. Introduction, Regulation, Liability & Discipline
