Lamprecht Fall 2005 Legal Profession LEGAL PROFESSION OUTLINE Lawyer-Client Relationship I. Defining the Lawyer-Client Relationship A. Is there a Client here? 1. It is important to always focus on who the client is. This is the person or entity you owe duties to. a. Ex. 50 year old son with elderly mom who just nods to what son says. Mom is the client. 2. If a person reasonably believes that a lawyer is providing legal services and lawyer acts in way for person to reasonably believe, there is a lawyer-client relationship. a. This is true even if no fees and no discussion of forming a relationship. Togstad v. Vesley: p. 19, 612 Facts: Lawyer says I don’t think you have a case. Lawyer II investigates and finds that person has case, but SoL has expired. Togstad sues first lawyer for malpractice. Issue: Is there a C-L relationship upon which Togstad can sue for malpractice? Analysis: Togstad has reasonable belief she was given advice by lawyer. There is a duty to a potential client that is case law based. Lawyer I was negligent because he did not investigate the claim. 3. Rule 1.18 establishes certain duties to a prospective client. Case law says you owe duty of accuracy for information given to a prospective client and a duty of confidentiality. a. Ex: W goes to L and talks about case. Doesn’t hire L. H subsequently hires L. L can’t disclose any info that W gave if she was a prospective client. b. Comment 2: When L will not be a prospective client. Unilaterally communicates info to L. i.e. via email that was unsolicited by the L. B. Competence 1. Rule 1.1 sets forth the requirement that the lawyer must provide the client with competent representation. 2. The requirements of competent representation are: a. Legal knowledge b. Skill c. Thoroughness d. Preparation necessary for representation. Lamprecht Fall 2005 Legal Profession 3. Disciplinary action is only enforced in egregious cases. 4. Mistakes are made (ex. SoL is blown) and proceedings under Rule 1.1 often occur when there is a pattern of incompetence. 5. Expertise in a field may hold you to a higher standard. 6. In the instance of new lawyer or lawyer not familiar with field, the lawyer may take the case: a. Comment 2: Through necessary study a new lawyer may provide competent representation. b. Comment 4: The requisite level of competence can be achieved by reasonable preparation. c. You cannot charge for all time to get up to speed, because client assumes lawyer has level of competence. You have to eat educational costs. See Rule 1.5(a) which requires a reasonable fee must be charged. d. Sidebar: Rules 4.1(a) and 8.4(c) – lying and dishonesty. You can’t say you’re experienced if you’re not, and you can’t misrep your educational status C. Confidentiality 1. There are two important principles related to this: a. Ethical duty of confidentiality b. Evidence rule of attorney-client privilege. 2. Rule 1.6(a) sets forth general rule that confidential information relating to the representation of the client. Any information given to the L by the client in the course of the relationship is probably protected by 1.6. (breach can result in civil punishment & discipline under the rules) a. May not be disclosed unless: i. Informed consent 1. Defined in Rule 1.0 – agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about risks. ii. Disclosure is impliedly authorized in order to carry out representation 1. Ex. Lawyer talks to other people in the law firm in order to better serve the client. b. Misc: It doesn’t matter from whom you learn the information. It can apply to info learned after rep has concluded (comment 3). The rule applies after your rep is over (comment 18). It also survives death. You are entitled to belief that cell phone conversations are confidential and won’t be intercepted. Hypo: Lawyer represents GM and person e-mails lawyer about wanting to bring suit. Can the lawyer disclose to GM? Lawyer has not discussed, so no duty of confidentiality. Lamprecht Fall 2005 Legal Profession Q: What if lawyer website says he specializes in employment discrimination? A: L is encouraging and soliciting people to contact so there is duty of confidentiality here. 3. Rule 1.6(b) sets forth public policy exceptions where lawyer may reveal information relating to the representation: a. (b)(1) To prevent certain death Real Case: Client says he killed 2 and knows where the bodies are. Lawyer is negotiating for a plea. He says client will reveal location in exchange for a break on sentencing Can the lawyer disclose the location under 1.6(b)(1)? The death has already occurred so it would not be preventive. b. (b)(2) To prevent reasonably certain financial crime or fraud i. Preventative ii. In furtherance language – only permits the lawyer to prevent once the client has used the lawyer’s services. See Comment 7. iii. PA drops the in furtherance language. Q: Client comes to lawyer and says he wants lawyer to do something. Lawyer is not going to disclose and continue to work for the client. Is this permitted? A: Lawyer may not assist in conduct lawyer knows (knows – denotes actual knowledge. Knowledge can be deferred from the circumstances) to be criminal. See Rule 1.2(d). Lawyer may be able to withdraw under Rule 1.16. c. (b)(3) To prevent mitigate or rectify substantial injury to the financial interests. i. Mitigating ii. Also contains “in furtherance.” Hypo: A PA lawyer is representing PA Corp in dealings with NJ bank. PA Corp admits to lawyer false documents were submitted to bank. Under Model Rules, lawyer may disclose under 1.6(b)(3). NJ requires disclosure, but PA does notconflict of laws. - Under Rule 8.5(b) the rules of the jurisdiction in which the lawyer’s conduct occurred apply. d. (b)(4) Lawyer seeking advice about compliance with the Rules. e. (b)(5) Self-defense exception - lawyer is defending by testifying about facts relevant to the representation. i. Lawyer need not wait until commencement of action begins. Ex. Find out being investigated, may go clear name. ii. The greatest use of (b)(5) is when the lawyer is suing the client for payment of a fee. This will necessarily entail lawyer disclosing facts about representation. (b)(5) permits this “to establish a claim in controversy between lawyer and the client.” Lamprecht Fall 2005 Legal Profession f. (b)(6) To comply with other law or a court order i. Lawyer’s responsibility is to promote client interest, but court may order to disclose. It is then allowed to be disclosed under 1.6(b)(6). ii. A subpoena is not a court order. You object until there is a court order. 4. The exceptions are permissive and the lawyer does not violate the Rule if information is not disclosed. See Comment 15. a. NJ requires the lawyer to disclose. See Supp p. 75. 5. Comment 18 states that the duty of confidentiality continues after the client-lawyer relationship has terminated. Real Case: Client says he killed 2 and knows where the bodies are. Lawyer is negotiating for a plea. He says client will reveal location in exchange for a break on sentencing Can the lawyer disclose the location under 1.6(b)(1)? The death has already occurred so it would not be preventive. People were outraged for holding out. They brought public health threat. Court threw out suit. 6. It does not matter where the information came from—client or non-client—what matters is if it relates to the representation. Hypo: Ethics column in Newsletter – lawyer defends guy who cannot be in bar. Lawyer quits defense work and becomes DA. Goes to bar and sees old client. Can the lawyer go back and inform DA about violation? Argument for it does relate to representation: You knew he was violating probation because you were his lawyer. Becker favors a very broad “relating to the representation.” 7. Scope of the rule is broad. It is anything the lawyer learns by reason of client encountering lawyer. 8. There is no social disclosure exception – cannot tell wife when you come home. a. You could tell without using the names. 9. Violations of the confidentiality rule can lead to 2 kinds of suits: a. Malpractice – lawyer breached duty of care. Only economic out of pocket costs can be recovered. i. In sex with client case, may be no economic damages. b. Breach of fiduciary duty – lawyer did not act as a fiduciary should. Lawyer did not act in way consistent with a fiduciary relationship. i. Having sex with emotional client violates fiduciary duty. 10. The purpose of the Rule is to make the client feel comfortable to reveal everything to the lawyer. If you have a broad rule, it facilitates communication. Lamprecht Fall 2005 Legal Profession D. Attorney-Client Privilege 1. Information protected under this privilege should not be confused with information protected under the confidentiality model rule. 2. Privilege is a rule of evidence. Attorney-client privilege says that certain communications are exempt from rules that apply to normal evidence. a. It applies in discovery. It exempts case that is otherwise relevant to the case. “Although otherwise relevant and discoverable, the information is protected from discovery.” b. Purpose: There is a higher public policy of wanting people to be candid when speaking with their lawyer. 3. Virtually all privileged information will also be protected by confidentiality, but much of the information protected by the model rules will not be protected by privilege. Privilege Rule What is protected? 1. Any communication oral or written 2. by the client to the lawyer 3. made in confidence 4. for the purpose of obtaining legal advice or assistance 4. Communications are what are protected. The underlying facts of the communication can be asked about. Ex. What did you send to your attorney. a. Does it cover a communication back to the client? If the communication would reveal what the client said, it must also be privileged. 5. Client includes prospective client, also includes communications to agent of lawyer (ex. paralegal). 6. Statement must be made in confidence. a. Speaking with couple, anything one client tells you the other hears and the privilege is destroyed. 7. Must be for the purpose of obtaining legal advice or assistance. a. If it is mixed business/legal, the predominate determines. Ex. House counsel: We want to acquire this other corp, what is the most appropriate way to do it. Lamprecht Fall 2005 Legal Profession b. If you are talking about things in the past, is it covered. If it relates solely to the past, it is not protected. If the lawyer says send me a chronology, this could be for providing advice and therefore protected. 8. Lawyer’s duty under 1.6 applies to much more info. With A-C Privilege only talking about in judicial proceeding. 9. If something is not privileged, the lawyer cannot blab it, because of the restrictions under the Model Rules. Upjohn Co. v. U.S.: US 1981 p. 32 Facts: Lawyers for company think employees have been bribing. Upjohn lawyers conduct interviews. Gov’t investigates and subpoenas the interviews and documents. Lawyer represents the company and not the employees. Issue: Is the employee deemed to be the company for purposes of the privilege? Analysis: In Upjohn, the court discusses two tests for determining the scope of the privilege: - Control group test – “Only the senior mgmt” people who control the corporation. o This is the least protective test (protects the least amount of information). - Subject matter test – If the communication is given for purpose of giving advice, it is protected, regardless of the person. Holding: Court rejects the control test and goes for broader privilege of subject matter. 10. With the subject matter test, there is a zone of silence argument where information would be sent to lawyers just to get it privileged. a. Ex. Tobacco companies had copies of scientific results sent to their lawyers in order to hide behind the privilege and thus undiscoverable. b. SC rejected this zone of silence argument by saying all the privilege does is protect the communication. You can ask the employees about the underlying facts in a deposition. Samaritan Foundation v. Goodfarb: AZ SC 1993 p. 35 Facts: Lawyer for hospital investigates and interviews nurses. Lawsuit is brought and years later 4 employees say they forget what happened Issue: Pl lawyer know there are interviews and want the transcripts. It is the same issue as in Upjohn. Analysis: Look at the two tests: - Control group – would not be privileged because the nurses are not part of the control group. - Subject matter test – it would be privileged because the nurses communicated with lawyer for him to give counsel. Holding: Court comes up with a middle-view: If it is unsolicited and for advice, it is privileged. If someone else sets it up, for protective purposes, it will not be privileged. Lamprecht Fall 2005 Legal Profession 11. The Court in Samaritan could reject the SC view because the issue in Samaritan was an Arizona evidentiary issue. AZ legislature eventually overruled the decision E. Exceptions to the Privilege of Ethical Duty 1. Self-defense – both the the Model rules and privilege allow a lawyer to reveal information if necessary to defend him self against an accusation of wrongdoing. 2. Waiver – a client may waive the privilege. a. Limited waiver – tell the SEC something, only waived to SEC. Generally this does not work. If you make a waiver, you make a waiver. b. Hot issue: Gov’t when investigating case against Corp. Gov’t encourages Corp to waive privilege in order to be fully complying (good faith). DOJ says just trying to discover all the facts. Corp lawyers say it is Blackmail. ABA is trying to work out agreement with DOJ for when waiver can be requested. c. You cannot unwaive once you waive. d. New Issue: Lawyer discloses to a PR person. Has the lawyer waived the privileged by disclosing to a public relations expert? 3. Crime-fraud exception – communications are not privileged when the client has consulted the lawyer in order to further a crime or fraud, regardless of whether the crime or fraud is accomplished and even though the lawyer is unaware of the client objective and does nothing to advance it. Hypo: Client goes to lawyer with scheme to defraud a bank. Client prepared B/S that is false. Q: Can the lawyer act for the client? A: No because it would violate 1.2(d). Q: Is the lawyer permitted to disclose this to the banks? A: Yes under Rule 1.6(b)(2). We are not talking about privilege, we are talking about disclosure of information related to the representation. Q: In judicial proceeding, does privilege apply? A: Privilege does not apply if the purpose of the communication is intended to further a crime or fraud. Is in furtherance applicable to Crime-fraud exception? Q: Person murders and tells lawyer, can lawyer represent them? A: Yes you can represent because not assisting in crime or fraud. You can test system, but you cannot permit client to perjure himself 4. Identity and Fees Exception – assertions of privilege for information relating to a client’s identity, the source of legal fees, the amount of fees and other information about representation are unsuccessful. Lamprecht Fall 2005 Legal Profession Hypo: There is a hit and run where victim is injured. Lawyer goes to police and asks what kind of deal can be made. No deal results. DA subpoenas the lawyer what is your client’s name. DA argues identity is traditionally not privileged. Court holds that notwithstanding the exception, there is exception to the exception which states if the information would be the last link in a chain of evidence to prosecute a client, it is privileged. Exception is it is not privileged, exception to exception is “last link” doctrine. a. Purpose of exception to exception is there is a higher interest when life and liberty are at stake. 5. Public Policy Exception - prosecutor says there is an important public prosecution that should prevail over the privilege. Is there an overriding public policy? a. Ex. Ken Starr tried to get Clinton’s attorney’s records after suicide. b. It is rare to find a case where public policy requires disclosure of privileged information. 6. Privilege does not end when a client or attorney are dead. F. Agency 1. Lawyer is agent of the client and has authority to act on behalf of client in matters related to the proceedings. 2. In order to ensure, the lawyer does not exceed the retainer, it is important to define what the lawyer has been retained to do. This can also help to protect lawyer against malpractice. Taylor v. Illinois: US 1988 p. 57 Facts: Lawyer refused to reveal identity of a prospective witness to gain an advantage without client knowing. Witness could not testify and client appealed. Issue: Should unknowing client be damaged by actions of lawyer? Holding: Lawyer is agent of client and client must accept consequences of representation. Cotto v. U.S.: 1st Cir. 1993 p. 59 Facts: Client injured hand and filed suit. Lawyer made blunders. Holding: Client must accept consequences. 3. With violation of agency, the client’s remedy is suit for malpractice or disciplinary action against lawyer. 4. Issues often arise in settlements where the lawyer may have settled and the client wants to disavow it. a. Under Rule 1.2(a), a lawyer shall abide by a client’s decision whether to settle a matter. Lamprecht Fall 2005 Legal Profession b. Is client bound if lawyer settles without authority? Case law is that if never given express authority, cannot settle without client’s consent. c. If the client gave apparent authority by leading the side to believe, client will be bound. 5. The client may also be bound by vicarious admissions by the lawyer. a. Ex. Ford being sued in design defect case. Jury finds for PL and separate trial on punitive damages. Lawyer says once discovered it tried to mitigate damages. Other lawyers note that lawyer says Ford knew. Is this admissible in other cases? The admission binds the clients. 6. In criminal context, there is ineffective assistance of counsel argument. G. Fiduciary Duty 1. In the fiduciary relationship between attorney and client, the attorney must place the client’s interests above their own in the area of representation and must treat their clients fairly. 2. There is model rule stating this relationship, but it is black letter law. 3. There are civil lawsuits against lawyers for breach of fiduciary duty. This is different than malpractice. Do not need to show economic damages as with malpractice. a. Perez case: Lawyer goes to Coca-Cola. Lawyer gives info to DA and truck driver sues. No really representing him in civil case so no out-of-pocket damages. HE can sue under breach of fiduciary because they gave info to the DA. H. Loyalty and Diligence 1. There is no explicit rule of loyalty, but rules for conflict of interests (Rules 1.7 and 1.8) underlie loyalty. 2. Rule 1.3 sets forth the requirements for diligence – “lawyer shall act with reasonable diligence and promptness in representing a client.” a. The old Model Rule had language about zealous advocacy, but this has been relegated to Comment 1. The Comment also says the lawyer is not bound to press for every advantage. b. This represents an attitudinal change from laying waste to the adversary. I. Duty to Inform and Advise 1. Rule 1.4 sets forth the standards for communication with a client. Lamprecht Fall 2005 Legal Profession a. (a)(1) If informed consent is required for a decision, lawyer must inform client of that decision. b. (a)(2) Consult with client about means client objectives are to be accomplished. c. (a)(3) Keep client informed about the status of the matter d. (a)(4) Comply with requests for information e. (a)(5) Consult with client about any relevant limitation on the lawyer’s conduct when client requests such assistance. f. (b) Lawyer shall explain matter to extent reasonably necessary to permit the client to make informed decisions. i. Guiding principle of the rule is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of the representation. ii. Must explain so that client can make an informed decision. Hypo: (p. 69) Lawyer receives settlement offer. Lawyer refuses and does not disclose to client. Client loses at trial. Under 1.4(a) disclosure is required to the client so the client can make an informed decision. Nicolas v. Keller: p. 66 Facts: Employee is injured on job. Employee comes to lawyer and want to represent him. Lawyer does not tell him about 3rd party suit and SoL runs. Analysis: To succeed in malpractice, must show that the Pl would have won in the underlying case. Holding: Court found duty of care to tell client about alternative claim against 3rd party. Court says lawyer has duty to advise layperson of other alternatives if available. 2. Under Rule 1.2(a), the lawyer is bound by the client’s decision concerning the objectives of representation. 1.2 references 1.4’s duty to consult with client on decisions. Rule 1.2(a) provides examples of decisions which client has right to decide: a. Whether to settle a matter. b. In criminal case, i. Whether a plea shall be entered. ii. Whether to waive a jury trial. iii. Whether the client will testify. Olef v. Gordon: p. 80 Lawyer must go with what the client decides for how to sell her home. A-C relationship is one of agent to principal. As agent, the attorney must act in conformity with his authority. Hypo: (Ms. Niceperson p. 72) Do you have to tell adversary if he does not court order, case will be dismissed with prejudice? Must consult client because this impacts whether he wins or not. It would not be appropriate for lawyer to make decision because he likes the adversary. Only guidance is 1.2 and 1.4(a). Lamprecht Fall 2005 Legal Profession Hypo: (Accept the Offer p. 79) Lawyer represents W in divorce and she wants to take low offer. Lawyer has duty to inform and explain. Client has right to make decision. Lawyer does have right to withdraw under certain circumstances. Rule 1.16(b)(4) if lawyer finds client decision repugnant, may withdraw. 3. Key thing is to put all communications in writing. Put everything in writing so that the client cannot come back and say there was malpractice. Cover your ass. Proof that it was sent and received J. Client with Diminished Capacity 1. Rule 1.2(a) sets forth requirement that lawyer shall abide by client decisions and Rule 1.4 requires the lawyer to consult with the client. 2. Rule 1.14 gives a lawyer guidance when there is a client with diminished mental capacity. a. (a) When client has diminished capacity, lawyer shall maintain a normal client- lawyer relationship. i. Comment 2 – lawyer must still treat client with respect. b. (b) When the lawyer reasonably believes the client has diminished mental capacity and client cannot act in own interest, the lawyer may take protective action if the client is at risk of financial loss or physical injury, by i. consulting individuals with powers to protect the client or ii. by seeking appoint of a guardian iii. Note: Comment 7 says this is last resort because of expense and trauma. c. Information relating to representation of client is still subject to Rule 1.6 i. Exception: When taking protective action, lawyer may reveal information about the client to extent to protect. 3. Rule 1.14(b) is permissive, but it should almost be read as mandatory because of the implications of civil liability. 4. Under Comment 3 to Rule 1.14 if other people are present to assist the client, the applicability of the attorney-client privilege is not affected. 5. Comment 6 provides a factor test for determining mental capacity: a. Client ability to articulate reasoning b. Variability of state of mind c. Ability to appreciate consequences of a decision d. Substantive fairness of a decision, etc. e. Lawyer may seek guidance of a diagnostician. 6. Diminished capacity issues also arise when a lawyer is representing a child. This happens in 2 instances: Lamprecht Fall 2005 Legal Profession a. Abuse Proceeding – lawyers are appointed to protect child’s interests b. Contested Custody Cases – court may appoint child a lawyer. 7. Children under 12 are deemed to be of diminished capacity. Matter of M.R.: p. 83 Issue: Does lawyer act in accordance with client decision when child has diminished capacity or does the lawyer act in way he believes is in best interests of child? Holding: Court says lawyers are not trained to decide best-interest. If someone is incapacitated, lawyer cannot make all decision. Lawyer must protect client’s rights and can get guardian appointed if decision is against their best interests. K. Termination of Representation 1. The client can terminate for any reason. a. Sometimes a lawyer may not be fired in middle of trial because it impedes justice (consequent delay/prejudice to other side). 2. Mandatory withdrawal – under Rule 1.16, there are circumstances where the lawyer must withdraw: a. If the representation will result in violation of Model rules or other law; i. Remember Rule 1.2(d) prevents the lawyer from assisting in crime or fraud. b. Lawyer’s physical or mental condition impairs the lawyer’s ability to represent the client. c. Lawyer is discharged. 3. The lawyer must comply with applicable law and provide notice a. If in litigation, lawyer must obtain permission of the tribunal. b. Confidentiality issues may arise if Tribunal asks why lawyer is withdrawing. Lawyer statement that professional considerations require termination should be accepted as sufficient. 4. Permissive withdrawal – under Rule 1.16(b), a lawyer may withdraw if: a. Withdrawal can be accomplished without adverse effect on the interests of the client. i. Client will always have an arguable adverse effect because of need to find new lawyer, fees, etc. b. Client persists in course of action involving lawyer’s services that lawyer reasonably believes is criminal or fraudulent. Lamprecht Fall 2005 Legal Profession Q: Is there a duty to investigate? A: It is only if you know. If lawyer reasonably believes, they should withdraw to avoid civil liabilities. There is no duty to investgate in rules, but cannot shut eyes to truth. c. Client has used lawyer’s services to perpetrate a crime or fraud. i. Something in the past. d. Client takes action the lawyer finds repugnant. i. Moral values can come into play. ii. Under Rule 6.2(c), lawyer may avoid appointment if client or cause is so repugnant to the lawyer that it will impair representation. e. Client fails to substantially fulfill an obligation to lawyer related to services. i. Ex Not paying bill. f. Lawyer faces unreasonable financial burden or client is unreasonably difficult. 5. Under Rule 1.16(d), upon termination, the client must take steps to protect a client’s interests. a. Lawyer may retain papers as permitted by law. Client may request file, but there are some narrow exceptions. (p. 86 – firm keeps internal memos). 6. Indigent criminal defendants have no per se right to fire lawyer though they can ask the court for a new lawyer. 7. Termination sometimes raises issues with fees. a. If it is hourly-based, this is not a problem. b. If it is contingency based, majority rule is where lawyer is fired without cause, lawyer gets quantum meruit. i. Problem is this may be a deterrent to client to fire ineffective lawyer. ii. If for cause, lawyer not likely to get quantum meruit. 8. There is a common law way to protect fees – charging a lien to the fees. a. With a lien, the lawyer gets first right in any funds subsequently recovered in matter which lawyer rendered services and is entitled to fee. b. You effectuate lien, by writing to other lawyer. If second lawyer does not pay out of award, second lawyer will be liable for lien. c. Used to be retaining lien where lawyer had right to retain client’s files until lawyer was paid. L. Termination by Drift 1. In some cases, it is clear when the relationship is over, but in some instances, a person may think you are their lawyer even if you have not seen them in a while (similar to dentist). Hypo: Lawyer sets up client’s estate. Lawyer sends newsletter to client about tax changes. Lawyer never contacts client and heirs sue for malpractice. Lamprecht Fall 2005 Legal Profession Lawyer claims Z-C relationship was over, but heirs claim on going relationship as evidenced by newsletters. 2. Because of potential problems, it may be helpful to send an “end of relationship” letter. 3. Under Rule 1.3 Comment 4, lawyer must clarify relationship when doubt exists, preferably in writing, so that client is not mistakenly assuming lawyer is looking after the client’s affairs. 4. Lawyer will want to maintain good rapport so that client will contact lawyer if they need future services. Lamprecht Fall 2005 Legal Profession II. Protecting the Client-Lawyer Relationship Against Outside Interference A. Communicating with Another Lawyer’s Clients Hypo: Real estate developer is represented by L1 and tenant is represented by L2. L1 cannot get into contact with L2 so he calls tenant directly. 1. Under Rule 4.2, in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented in the matter, unless a. the lawyer has consent of the other lawyer b. Authorized by law or court order to do so 2. the ramifications from a possible violation of Rule 4.2 are: a. Evidence obtained in violation of the rule may be inadmissible. b. Lawyer may be disqualified from representation. c. There is also disciplinary implications. 3. Policy for Rule 4.2 is in Comment 1, to prevent possible overreaching and client revealing things. Preserve the relationship by limiting outside influence Q: What if the client initiates the call? A: It does not matter because “the lawyer shall not communicate . . . .” Q: What if lawyer calls client and asks for permission? A: Violates Rule, must call lawyer and ask for permission. 4. Comment 6 states a court order to permit communication may be obtained where, for instance, the communication is necessary to avoid reasonably certain injury. 5. Comment 4 states that lawyer who is not representing someone in the matter can communicate with a represented client. a. Ex. C comes to lawyer’s office upset with current representation. Can you talk to the client? You can talk to the client. You are not representing a client and the Rule says, “In representing a client . . .” Hypo: Lawyer represents person in automobile accident. No complaint is filed yet. Lawyer calls the other driver directly asking about the facts. Insurance company later appoints lawyer for other driver. Lawyer for ins. company looks to strike evidence and to disqualify lawyer. Courts seem to say that you can talk to a person if they are not represented at that time, even if it is likely the person will be represented later. 6. Communication is what is prohibited so there is room for such things as videotaping an opposing company. Lamprecht Fall 2005 Legal Profession Q: Can the lawyer representing a client in a matter hire a private investogator to go talk to the opposing client? A: No, under Rule 8.4(a), it is professional misconduct for a lawyer to get someone else to violate rules for them. 7. Opposing clients are free to talk to each other. Ex. H and W both represented in a divorce proceeding. a. Lawyer cannot act through client as prohibited by Rule 8.4(a). b. Middle ground is this: client asks for background on law. How much advice and assistance can lawyer give when client is going to talk to the other side? i. Some court say cannot give any advice about forthcoming talk because this would violate 4.2 through 8.4. ii. Other courts say it is ok so long as clients as initiating the interaction with the lawyer before going to talk to the other side. Q: What if H is lawyer divorcing W and wants to talk to W? A: Lawyer is not representing so free to talk, but this undermines policy of Rule 4.2. Niesig v. Team I: p. 93 Facts: Pl is injured when falls from scaffolding. Pl is represented by counsel. Pl does not sue employer because worker comp. Lawyer wants to interview other employees of DeTrae on the job that day. Individuals are not represented by counsel. Arguments: Def says cannot interview these guys unless Def lawyer consents because of 4.2. Argument is that at least some corp employees are also deemed to be the corp so that communication with them is barred. Need not be a party to the case. Holding: A communication with any employee where the corp is represented is deemed to be communication with corp and violates 4.2. This rests on Upjohn which deals with privilege. This is a blanket rule. Upjohn Approach Control Group Approach Comment 7 Approach This is a blanket rule. High level management. Intermediate approach Communication with any employee For purposes of 4.2, the only Cannot communicate with where the corp is represented is employees deemed to be the constituent who supervises, directs deemed to be communication with corporation are those in the control or regularly consults lawyer about corp and violates 4.2 group. the matter. Also include constituent whose actions may be imputed to entity. No - Pl lawyer could not Yes - Pl lawyer could communicate Yes - Construction workers have no communicate with employees of with construction worokers because authority to sign off on corp’s behalf corp. they are not high-level management. and their actions of observing are not imputed on corp. Go over this, def on exam. 8. With the Comment 7 approach, be sure to evaluate if the constituents: a. Supervise, consult or regularly consult with entity’s lawyers, or b. Authority to obligate the organization with respect to the matter Lamprecht Fall 2005 Legal Profession c. Act or omission may be imputed to the entity for purposes of civil or criminal liability. 9. It is important to remember, you cannot ask about a privileged communication during a permissible private meeting with the corp employee. a. Ex. What did you tell the corporate lawyers? b. If it is Upjohn jurisdiction, this would be privileged. 10. Under Rule 4.4(a), if you know information is privileged, you cannot ask about it. a. Also may violate Rule 8.4(d), violation that infers with administration of justice. 11. If person is former employee, Rule 4.2 is not an issue. See Comment 7. 12. If the represented entity is the government, still follow Comment 7, but there is constitutional right to communicate with government so it may be more broad. Hypo: Work for public interest agency and lie who you are. 8.4(c) says lawyer cannot be guilty of dishonesty or misrepresentation whether you are representing a client or not. 13. In criminal law context, proceeding pending against and Def counsel wants to interview chief complaining witness – does 4.2 bar this communication? Does Def have to get prosecutor consent? a. General answer is no because DA does not represent complaining witness. Q: Can prosecutor contact Def without getting consent of the Def’s counsel? A: Look at 4.2 literally and it seems to say DA cannot contact Def without consent of Def’s counsel. If the prosecutor cannot do it, then the DA cannot do it through agents. This violates 8.4. b. Under Comment 5 of Rule 4.2, it says if there is no indictment yet, the prosecutor can contact because 4.2 has not kicked in yet. B. Communicating with an Unrepresented Person 1. Rule 4.3 sets forth the requirements for dealing with an unrepresented person. a. Lawyer shall not state or imply he is disinterested. b. Lawyer should clear up any misunderstanding of the unrepresented person of the lawyer’s role. c. Lawyer shall not give legal advice other than to secure counsel if there is possibility of conflicts of interest between client and unrepresented person. Hypo: Matrimonial case: W is represented. H is not represented. On behalf of wife you are negotiating with H, but can you? Lamprecht Fall 2005 Legal Profession Q: If you represent W in divorce and H is not represented, can you negotiate with H? A: Yes, but must follow requirements in Rule 4.3. If asked what a legal document is, can probably explain the document. C. Protecting Privileged Information from the Other Side 1. What Rules are implicated if the lawyer steals information? a. Rule 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. i. This applies to a lawyer’s private life as well as his professional life. ii. Fraud is only term defined in Rule 1.0 – fraudulent under jurisdiction definition AND intent to deceive (makes it beyond negligence, need purpose). iii. Rule is a big catch-all. b. Rule 8.4(d) prohibits a lawyer from engaging in conduct prejudicial to the administration of justice. i. This is a very broad rule. ii. Stealing information prevents the system from functioning in a fair way. 2. What if opposing side erroneously turns over privileged information? Has the privilege been waived or not? a. Privilege is the client’s privileged. Can the lawyer waive it for them? Yes, lawyers are agents of the clients. There are 3 other views: i. Can never be waived. To be waived, it must be intended and this was not intentional. This is highly protective. ii. Strict accountability view – If you produce it, it has been waived once turned over. b. Factor test – There is a middle view that assesses: i. reasonableness of precautions taken to prevent disclosure, ii. time it took to discover disclosure, iii. scope of the production, iv. extent of the disclosure v. overriding interest of fairness and justice 3. An ethical issue is if you discover privileged information, do you need to tell the other side. a. Rule 4.4(b) requires the lawyer receiving the document who knows or should know it was inadvertent shall promptly notify the sender. i. Actual knowledge is not required. 4. Determining whether a lawyer can use it is a matter of professional judgment. Lamprecht Fall 2005 Legal Profession a. Rule 1.2(a) You must consent with client on the big decisions. To send it back without consulting the client, would probably conflict with Rule 1.2(a). b. Rule 1.4(b) requires you explain matters to the client. Client and lawyer may conflict. Hypo: (Misdirected fax p. 114) With fax, there is a disclaimer on it. Under factor approach, there is strong argument the privilege is not waived. It is arguably not a finished communication. Privilege never attaches because it is not a finished communication. Lamprecht Fall 2005 Legal Profession Financing Legal Services I. Fees A. Unethical Fees 1. Rule 1.5(a) sets the basic rule that a lawyer shall not make an agreement for or collect an unreasonable fee. Factors in determining reasonableness are: a. Time, labor required, difficulty of question, skill requisite to perform; b. Lose of other employment by taking case c. Fee customarily charged in the locality for similar work d. Amount involved, results obtained e. Time limitations imposed by client f. Nature and length of professional relationship g. Experience, reputation and ability of the lawyer h. Whether fee is fixed or contingent 2. The burden of proving a fee is unreasonable is on the client attacking the fee. 3. In PA, the rule is the lawyer may not charge a fee that is illegal or clearly excessive. This language is much more favorable to lawyers. 4. Litigation often arises where the client has no paid, the lawyer sues for the amount due and the client says the agreement is unenforceable because it is unreasonable (ABA) or clearly excessive (PA). 5. Rule 1.5(b) requires the lawyer to communicate, preferably in writing, the scope of the representation or rate of the fee. a. Some states have writing requirement – PA. b. ABA did not want to make writing mandatory to avoid defenses by clients to oral agreement that it should have been written and is not binding. c. Rule 1.5(b) also requires any change in basis or rate to be communicated to the client. Hypo: Lawyer takes case and gets $1500 retainer and knows this will no be sufficient. Lawyer must communicate to client that this will not cover all the expenses. 6. Under Rule 1.4(b), lawyer must explain to client billing arrangements so they can make an informed decision. B. Hourly Fees 1. Issues often arise with hourly fees. Lamprecht Fall 2005 Legal Profession 2. An alternative though up is “value billing.” Matter of Laurence S. Fordham: p. 129 Facts: Client hires lawyer for son’s DUI. Lawyer says he will accept but it will have to learn area. Fees end up being $50k (norm for case is $10K) and lawyer gets client off. Holding: Court finds the fee is clearly excessive. Lawyer was hurt that he charged $50k and fees in these types of cases usually max out at $10k. 3. In Laurence, the lawyer took two positions: a. Fees were charged in goof faith and the fee cannot be attacked unless it involves bad faith. Court rejected this argument. b. Client agreed to the fee arrangement and was aware lawyer had to learn. Court rejected this saying issue was whether it was excessive, not whether the client knew. This is not an per se defense. Q: Can a client take case they know nothing about? A: Yes, under Comment 2 to Rule 1.1, lawyer may take case. Can he charge fees for learning? 4. In Laurence, with the lawyer disciplined, what will the lawyer be paid? A fee arrangement that violates a rule is void. a. Quantum meruit – lawyer will ask for this, but if paid then what is the punishment. Q: What if in Laurence the father was a billionaire and hired the best? A: Court would probably uphold fee. 5. These is concern that the rules are too paternalistic and aimed at consumer protection. *Likely on test: know factors, no good faith defense or per se defense. Q: What if at courthouse for 3 clients and wait for 4 hours, bill 4 hours to each client? A: ABA Opinion says you must split up the hours among the clients. Q: What if you put in 30 hours on difficult issue for client A and client B walks in with the same problem. How do you bill? A: if you bill B hourly, it must be by hour spent—cannot bill 30 hours. Bill flat fee, but must be reasonable according to factors in Rule 1.5(a). 6. You often see flat fees in comparatively simple matters and they are rarely found to be unreasonable. a. Utah case charging flat fee of 1% of assets was found to be unreasonable because no correlation to amount of legal work done. Lamprecht Fall 2005 Legal Profession C. Contingent Fees 1. Rule 1.5(c) sets forth the requirements for a contingent fee arrangement: a. Agreement must be writing and signed by the client b. State whether expenses are deducted before or after the contingent fee is calculated. Hypo: Client settles for 300k and expenses are 60. If expenses are deducted first. 240 in pot and lawyer gets 80 and client gets 160. If deducted after, 300 in pot, lawyer gets 100 and client gets 200 less 60 = 140. Lawyer gets 20k more if deducted after c. Upon conclusion of the matter, lawyer must provide the client with a statement with outcome and fee and remittance to the client. 2. You mostly see contingent fees in personal injury context – 1/3 of damages recovered. a. There are reverse contingent fees: if I save you 10k on tax bill, I get X fee. Hypo: Lawyer retained and agrees to contingent fee for police brutality case. Police settle 2 weeks later and lawyer takes 1/3. Court found unreasonable fee. 3. Fee reasonable at time you entered into it may be deemed to be unreasonable later. 4. Generally, courts do not throw out contingent fees as unreasonable. Some states have laws that cap contingent fees. 5. Come academics argue that in clear cut cases, contingent fees may be inappropriate. 6. Rule 1.5(d) prohibits contingent fees in certain circumstances: a. Domestic relations matters – divorce, alimony, property settlement, etc. b. Defending criminal case. i. Lawyer may reject plea bargain in order to get acquittal ii. Might cause the lawyer to do something unethical. But isn’t this same in tort case? Yes, but there is notion that unethical behavior in criminal case is worse for society. 7. Contingency fees used to be prohibited because there was idea that it created litigation, caused conflict of interests with client and it lead lawyers to do something unethical. We have contingency fees because people with meritorious claims could not litigate without them. 8. Bonus arrangements also exist where, for example, if recover in excess of 50k, lawyer can take bonus on the excess. Lamprecht Fall 2005 Legal Profession D. Referral Fee 1. Rule 1.5(e) provides the only circumstances in which a lawyer of one firm may pay another lawyer a referral fee: a. Division is proportional to the services performed by each lawyer OR each lawyer jointly assumes responsibility for the representation b. Client agrees to the arrangement c. Total fee is reasonable. 2. Not just permitted to refer and get a %. You must be involved in the case somewhat. 3. PA Rule cannot refer unless the client does not object and fee is not illegal. So PA says can refer and get a % without any work, so this is different from (e)(1). F. Safekeeping Property 1. Rule 1.15 creates a wall between a lawyer’s funds and the client’s funds, and the rule also applies to other types of property. a. Ex. If the client pays in advance, those funds are not the lawyers so they must be put in escrow and withdrawn as earned. 2. This rule is a major area of disciplinary action because lawyers often fail to separate property. Hypo: Lawyer has real estate practice. He puts advance payment into trust account. He takes money out that is unearned to pay for personal expenses. No one loses any money because he puts back money that is unearned and keeps money earned. Nevertheless, this is a clear violation of Rule 1.15. Q: What if the lawyer deposited his own money into the trust account? A: This would be a violation because funds are commingled. Q: Client gives lawyer 5k as retainer. Lawyer performs services on monthly basis and can take monthly earnings. Lawyer does not withdrawal till a month later. Has lawyer violated ethical rules? A: Yes violate Rule 1.15 because funds are intermingled because as he earned fees they became his. Must the violation be intentional? 3. Often client funds in a trust account will earn interest. Can the lawyer keep the interest? a. IOLTA (Interest on Lawyer Trust Account) – where interest that is indiscernible to clients, it goes to fund used to do public representation services. b. There have been challenges to this because eminent domain (private for public). Lamprecht Fall 2005 Legal Profession c. SC upheld a Washington IOLTA statute because it only applied when funds were too small to generate net earnings. 4. If the lawyer receives funds as part of a settlement and client has debts that lawyer has received notice of, what must lawyer do with funds? 3 options: a. Turn money over to bank (third party). i. Bank does not have a specific claim to the funds. ii. Bank is not in class protected under 1.15(d) or (e). b. Pay it into court and let the parties fight about it. i. If lien, pay it to court. c. Turn it over to the client. i. Comment 4 to Rule 1.15 – If lien, lawyer should not arbitrate and have court resolve. 5. If the third party has no established right to the proceeds (no lien), the lawyer may turn it over to the client. 6. Comment 3 – sometimes lawyer gets funds and there is dispute over lawyer’s fee. “Lawyer may not hold funds to coerce a client.” Put disputed funds in trust account. May then go to arbitration over disputed funds. G. Non-Refundable Fees 1. Normal (special) retainer – you receive money upfront and you bill as services are performed. a. If you do this and get $10k, you must put in client trust account and then as you bill, you must draw down from that account. You cannot commingle your money and the client’s money Q: What if $10k retainer and client discharges after $2k of work? A: You refund the unearned amount. 2. General retainer – payment for being available and not taking other work. a. Ex. Sara Bennett p. 137 – if antitrust matter comes up, Sara agrees to represent. They pay $10k just to be available. This is not gouging because she is promising to be available and not work for someone else in litigation with company. b. You do not see this much, but if you do, it is by large corporations. c. This type of retainer is always regarded as enforceable. This is enforceable when paid. Must put in personal account when paid because it is earned. 3. Non-refundable fee – Cooperman provides an example of such an arrangement. Lamprecht Fall 2005 Legal Profession Matter of Copperman: p. 138 Facts: Lawyer paid $5k fee and will be paid on an hourly basis. If discharged, he will not refund. 2 days after agreement, client discharges Cooperman and asks for refund. Holding: NY Court of Appeals found such an arrangement to be against public policy. It may force clients to keep inadequate counsel. a. The 3rd Circuit upheld a nonrefundable arrangement. PA says such an arrangement is not per se bad. Cohen & Brennan, p. 142. Reasonableness will depend on sophistication of the client. Q: What is ethic violation for Cooperman? A: Rule 1.5(a) cannot charge unreasonable fee. If fee violates public policy, then 1.5(a) is clearest way to find violation. b. NY has the majority view (per se against public policy) and PA is minority view (non-refundable may be appropriate in some circumstances). c. The NY rules has implications for flat fee arrangements. i. Ex. DUI case where fee is $15k regardless of outcome. Lawyer is discharged and client was rebate on fee. Unearned portion should be recovered. ii. NY would find this invalid because it indicates non-refundability. H. Court Awarded Fees 1. Attorneys’ fees are not normally recoverable by the party that wins. There are two possible exceptions: a. Some kinds of statutes permit winner to get attorneys fees. i. RICO permits for treble damages AND attorneys’ fees. b. Common fund cases – you get attorney fee out of the fund. I. Pro Bono Work 1. Should lawyers be required to do pro bono work? a. Rule 6.1 suggests that the lawyer should provide at least 50 hours of pro bono service a year. b. It is a “should rule” and is not mandatory. 2. Rule 6.1(a) provides that the 50 hours should be provided without fee primarily to: a. Persons of limited means b. Charitable organizations. 3. PA rule is far from mandatory making it meaningless. Lamprecht Fall 2005 Legal Profession 4. Why might it be beneficial to make it mandatory? a. It might influence some people to do more pro bono work. b. Engages the conscience. 5. Colorado rejected mandatory reporting of hours because it was step before mandatory reporting. J. Who Gets the Money? 1. Rule 5.6(a) addresses restrictions on right to practice and generally prohibits agreements that restrict the lawyer’s right to practice. a. Under Comment 1 such non-compete arrangements violate a lawyer’s autonomy. 2. A partnership agreement should deal with whether a departing lawyer has any right to income once departed. 3. Rule 1.17 deals with a lawyer’s sale of a law practice. a. The conditions permitting a sale are: i. Seller must cease to practice in the jurisdiction. ii. Must be sold to lawyers. iii. Clients are given written notice b. Such sales used to be completely restricted but this has been changed. c. It seems to not make sense from a business stand point because law is very personal relationship. 4. Lawyer’s selling a law practice want to be able to take clients with them. In order to do this, you must: a. Tell clients you are leaving. b. Tell them where you are going. c. There are solicitation rules, but they do not bar you from someone you have had relationship with d. Bottom line – fiduciary obligation to firm leaving behind, but content of obligation is unclear. i. You see trade secrecy litigation when lawyers leave and take people with them. Reeves v. Hamilton: p. 181 Lawyer breached fiduciary duty to ex-firm when he departed and secretly solicited firm employees. Lamprecht Fall 2005 Legal Profession Concurrent Conflicts of Interests I. Client-Lawyer Conflicts A. Introduction 1. More clients you represent or have represented, the more problems you may have. 2. The basic structure for ABA approach to conflicts is: a. Rule 1.7 is the default rule for conflicts – prohibits lawyer from representing client when there is a concurrent conflict of interests. b. Rule 1.8 lists specific situations. 3. The analysis is: a. Start with Rule 1.8 to see if specific provision on point b. Turn to 1.7 if 1.8 does not address issue. 4. Under Rule 1.7(a), a concurrent conflict of interests exist if: a. Representation of one client will be directly adverse to another client i. Ex. Cannot represent Pl and Def in matter. b. Significant risk that the representation of one or more clients will be materially limited by i. the lawyer’s responsibilities to another client, ii. a former client or a third person or iii. by a person interests of the lawyer. c. Note the significant risk is an objective judgment 0 how does it appear to a general viewer. i. Lawyer may claim there is not risk, but objectively there is. 5. Under Rule 1.7(b), notwithstanding the existence of a concurrent conflict, the lawyer represent a client if: (must meet all) a. Lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client i. This is an objective measurement. Even if lawyer says he reasonably believes, it is measured objectively. b. Representation is not prohibited by law c. Representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and d. Each affected client give informed consent, in writing. i. Comment 20 requires the informed consent to be confirmed in writing. Lamprecht Fall 2005 Legal Profession ii. Rule 1.0(e) defines informed consent – agreement to a course of conduct after the lawyer has communicated adequate information and explanation of material risks and alternatives. Hypo I: Lawyer is member of team of lawyers representing a celebrity defendant. Lawyer goes to Vegas and sees odds on whether client will be guilty or innocent. Lawyer puts $10k on client being guilty. There is no provision in Rule 1.8 on point, so turn to Rule 1.7. - There is a significant risk under 1.7(a): lawyer has incentive to throw case. - (b)(1) prevents lawyer from representing because lawyer cannot reasonably believe will be able to provide competent and diligent representation. Hypo II: Lawyer bets that client will be found not-guilty. - Will representation be limited? Possibly may push for plea bargain. May turn up that lawyer has 100k bet on acquittal. - Key language to evaluate – “is there a significant risk the representation will be materially limited” you could say no significant risk. If no significant risk, then no conflict. - Lawyer could probably say that he can provide competent representation at least until plea bargain is offered and then deal with it once plea bargain is offered. 6. For a conflict, informed consent must be in writing. As a practical note, ensure everything is correct, because if it is in writing, it is permanently documented. a. CYA letters – cover your ass. b. The informed consent may be oral, but the confirmation by the client must be in writing. Probably want to include explanation in writing so you have documentation of what was explained. B. Specific Rules on Conflicts Hypo: Lawyer is representing client in antitrust litigation and L needs new place of business. Client offers to sell building and they negotiate sale. 1. Rule 1.8(a) prohibits a lawyer from entering into a business transaction with a client or to knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: a. The transaction and terms are: i. Fair and reasonable ii. Fully disclosed; and iii. Transmitted in writing in a manner understood by the client (no legalese). b. client is i. advised in writing ii. of the desirability of seeking and iii. is given a reasonable opportunity to seek the advice of independent counsel Lamprecht Fall 2005 Legal Profession c. client gives informed consent. Q: What happens if the lawyer screws up on the writing requirement? A: Possibility of disciplinary action. Q: What if it is fair, but no writing and client wants out? A: There is no per se civil liability for a violation of the rules. Client would make public policy argument that there are these rules and one of them was not followed. 2. Purpose of the rule is to prevent a conflict where the lawyer is trying to get a favorable deal. 3. Transactions are permitted, but must follow requirements. Rule 1.8 does state absolute prohibitions. a. Rule 1.8(j) absolutely prohibits lawyer from having sexual relations with a client unless a consensual relationship existed beforehand. i. Client can sue on breach of fiduciary duty. ii. Purpose is lawyer is in position to exploit position of trust. iii. Lawyer may have interest in keeping sex going. iv. Old way was for Rule 1.7 to address but ABA added absolute ban. v. If pre-existing relationship,. There may still be conflict under Rule 1.7. vi. Another issue is what is a sexual relationship. vii. A final issue is lawyer who has relations with executive of corporate client. Is that person a client? viii. There is no imputation for 1.8(j). Matter of Neville: p. 191 Issue: If the lawyer is representing the client in a completely unrelated matter, does Rule 1.8A9) prohibit conventional arm’s length transactions between the client and lawyer? Holding: Lawyer owes the client a duty and client will rely on you to observe a fiduciary standard. It does not matter if business transaction is unrelated to the representation. Q: What if as in Neville, the representation is over, does 1.8(a) still apply? A: Relationship continues until abandonment—when lawyer’s influence over client is dissipated—so it applies even though no formal A-C relationship. 4. Rule 1.8(a) will apply to a client formerly represented unless something happens so that relationship is expressed to be over (ex. letter). 5. Lawyer’s obligation under Rule 1.8(a) is to treat client as if the lawyer were advising the client in deal with someone else. a. Even if the client sets the terms, this is not enough to get out of Rule 1.8(a)— lawyer must go over pros and cons of deal. Lamprecht Fall 2005 Legal Profession 6. Comment 1 to Rule 1.8 says the rule does not apply to standard commercial transactions between the lawyer and client for products or services. a. Ex. Client has electronic store and lawyer buys TV. Lawyer has no advantage over client in dealings. 7. Rule 1.8(a) does apply to post-retainer fee agreements. Ex. Raising retainer from 5k to 10k. It is a business transaction under Rule 1.8(a). a. Normal fee agreements are not subject to Rule 1.8(a), but when property is going to be paid (stock in company) it becomes subject to Rule 1.8(a). b. If stock, must tell client about possible conflicts of interests down the road. c. Must be reasonable at time it is made. 8. Rule 1.8(c) sets forth a prohibition against solicitation of gifts from client or prepare an instrument giving the lawyer substantial gifts. a. There is narrow exception for related persons (spouse, family member). b. Otherwise it is an absolute prohibition. c. Client cannot consent to. d. Even in non-solicitation scenario, do not want to prepare instrument or accept gift. Q: Can the gift be given to the girlfriend of the lawyer? A: Rule 1.8(c) says cannot go to “person related to the lawyer.” Girlfriend does not fall under the related person definition in Rule 1.8(c). e. Lawyer can get another lawyer to prepare instrument that gives L1 a gift. i. The other lawyer would have the duty to advise the client. 9. Under Rule 1.8(k), if prohibitions apply to one partner in a firm, they apply to all the partners. a. This is the principle of imputation whereby conflict of one lawyer is imputed to other lawyers. Rule 1.10 deals with imputation. b. Purpose is Model Rules want the clien to have independent advice regarding the gift to a lawyer. Q: What if lawyer makes change to instrument giving him gift? A: So long as change doesn’t affect the gift, should be ok. 10. Rule 1.8(c) says “substantial gift” and this ambiguous language is open to interpretation. 11. Rule 1.8(d) prohibits the lawyer, prior to the conclusion of representation, from giving himself literary or media rights based on information from the representation. a. Concerns criminal representation where client tell lawyer he can control the book and media agreements. Lamprecht Fall 2005 Legal Profession b. May cause lawyer to turn case around in way to make it attractive. c. If after the representation, lawyer must get consent regarding the confidential information as controlled by Rule 1.6. 12. Rule 1.8(e) prohibits lawyer from providing financial assistance in connection with pending or contemplated litigation, except: a. As part of contingent fee arrangement b. For an indigent client. Q: What if lawyer maintains apartment complex and client cannot pay rent, can lawyer offer lodging? A: Technically, this is providing financial assistance. c. Criticism of Rule is that poor clients are the ones hurt. d. Purpose is to prevent profiteering and lawyers form buying clients. e. Some states have humanitarian exception rule – lawyer can make small loans for medical expenses, certain living expenses, so client can bring suit. 13. Rule 1.8(f) prohibits the lawyer from accepting compensation from a third-party unless a. Client gives informed consent b. There is no interference with the lawyer’s independence of professional judgment of A-C relationship c. Information related to the representation is protected—no confidential information to 3rd party unless client agrees. 14. Rule 1.8(h) prohibits the lawyer from: a. (h)(1) limit malpractice liability through agreement unless client has independent counsel. i. Independent counsel is required because the client is not likely to be fully appraised of the situation. b. (h)(2) settling claim or potential claim with client who is unrepresented unless lawyer tells client to get counsel and gives time to do so. i. No independent counsel requirement under (h)(2). c. Comment 14 provides that lawyer may enter into arbitration agreement without the prohibition of Rule 1.8(h). Client must be fully informed of the scope and effect of the arbitration agreement. Q: If you blow the SoL, do you need to tell client or just say sorry you lost? A: Rule 1.4(d) requires lawyer to discuss with client so they can make informed decisions. There is obligation to let client know of remedy available for malpractice. Lamprecht Fall 2005 Legal Profession C. Other Issues Gellman v. Hilal: p. 201 Facts: H with one firm will represents Pl, and W with another firm previously represented Def. There used to be a specific rule on this in 1.8, but it has been replaced by Comment 11. 1. Comment 11 is concerned about client confidentiality when lawyers are closely related. a. ABA eliminated absolute requirement of client consent and put comment. b. Language of Comment 11 seems to say that the client must be made aware and informed consent obtained. “Ordinarily” client has to know. Probably want to tell anyway. 2. Model Rules are weak on discrimination. Rule 8.4(d) “conduct prejudicial to the administration of justice” is catch-all. Hypo: (Jewish lawyer p. 206) Jury not likely to look favorably on Jewish lawyer. Do you keep her on legal team? Go through applicable rules: - Rule 1.2(a) – lawyer is bound by client’s decisions. - Rule 1.4(b) – lawyer shall explain matter to the client so they can make an informed decision. - Rule 1.7 – possible conflict of interests: want to fight prejudice but want to win for client. Becker: Client must be told. Lamprecht Fall 2005 Legal Profession II. Client-Client Conflicts A. Criminal Cases Hypo: Crime and 2 people are indicted and both ask L to represent them. Each person is saying not guilty. 1. Under Rule 1.7, must ask if there is conflict of interests or what is the potential conflict. a. Defenses of both clients may conflict. b. Comment 8 – states the general test for significant risk: critical interest is likelihood of a conflict. c. Comment 23 – states that the potential for a conflict is so great in representing co- defendants in a criminal case that the lawyer should decline. d. There is no absolute prohibition, but Comment 23 is pretty strong. e. May be able to represent both if you meet Rule 1.7(b) requirements. 2. If problems arise, the lawyer can be sued for malpractice. a. In order to recover, the client must prove they were innocent. 3. Violations of conflict of interests rules can lead to 6th Amendment claims. a. 6th Amendment provides for effective assistance or counsel. One way counsel can be alleged to screw up is through conflict of interests. Q: Can a prosecutor claim disqualification for a lawyer representing co-defendants? A: No, prosecutor has no standing to request disqualification because they do not represent someone. Only client or former client may claims disqualification. B. Civil Cases 1. Under Rule 1.7(a), cannot represent a client if the representation will be directly adverse to that of another client. a. Can Lawyer’s partner do it? No, because Rule 1.10(a)(1). Because lawyer cannot represent under 1.7, partner cannot because of imputation in 1.10 2. The clients cannot consent because Rule 1.7(b)(3) expressly prohibits such representation. Hypo I: Lawyer is hired by client to sue GM. It is a design defect case. Recovery is going to be substantial. If you lose design defect, it applies to all cases across the board. Lawyer has a substantial holding of GM stock. Lawyer has a lot to lose if GM loses the case. Conflict? There is no specific rule. Under 1.8, there is argument there is a significant risk. Also, probably not consentable under (b)(4). Lamprecht Fall 2005 Legal Profession Hypo II: Lawyer only represents Corp X in environmental matters. Client comes to L and wants to retain L to sue Corp X in unrelated personal injury action. Client injured when truck driven hit client. 3. Under Comment 6, you cannot act as counsel against a client even if it is an unrelated matter. a. Aspect of loyalty is undermined. 1.7(a)(1) says this is example of directly adverse representation b. (b)(3) does not bar because it is not the same litigation. Is this correct? 4. These rules are especially important to big firms. Ex. Environmental representation in San Fran and antitrust litigation in DC. a. Big law firm must have a good database. b. Large company could tactfully exploit this— Partial out business to big firms which would conflict them out of suing you on behalf of a client. 5. Firms may try to use consent to conflict agreements. a. Argument against these are does the client understand. b. If the client is sophisticated and the waiver is limited, this has best shot at being upheld 6. Under Comment 34, a lawyer representing a corporation does not represent any constituent or affiliate of the corporation. Therefore, lawyer may accept adverse representation. Hypo III: Client is going to be a witness and lawyer wants to cross-examine client while representing another client. 7. Cross-examination is by nature adversarial. This is a concurrent conflict of interests and lawyer would have to get informed consent. a. LB: thinks it is consentable under Rule 1.7(b), but you would need consent of both clients. Hypo: Passengers injured in collision and both sides are unaware of what happened. Is there a conflict so that you need their consent? Possibly no significant risk. 8. When you represent both sides in civil litigation, there may be times when you don’t need to obtain consent because there many not be a concurrent conflict. Go over this! Lamprecht Fall 2005 Legal Profession 9. Under Comment 24, lawyer can take inconsistent legal positions with respect to different clients. As lawyer you are acting as an advocate. C. Imputation 1. Rule 1.10 applies to Rule 1.7. Lawyers of firm shall not represent a client when lawyer practicing alone would be prohibited from doing so by Rule 1.7 unless a. Prohibition is based on a personal interest. Ex. Strong political interest. Q: Is a lawyer’s stock holding in GM a personal interest? A: Under Comment 3 of Rule 1.10, other lawyers in firm may have loyalty to lawyer and their financial interest. D. Conflicts in Non-Litigation Context 1. Comment 7 of Rule 1.7 notes directly adverse conflicts can arise in transactional matters. Representing buyer and seller in same transaction cannot be consented to. a. Comment 7 also says that if you represent the seller in negotiations and have represented the buyer in past unrelated matters, you need to get informed consent of each client. 2. Conflicts also arise when a lawyer is retained to form an entity for multiple parites. a. Ex. People come in and form corp. Want lawyer to draw up the documents. You are representing all three owners. Conflicts arise: stock options, what corp form. b. It is allowed, but you must obtain consent. 3. There are two major points related to representing multiple parties on same side in a transaction: a. Comment 30 of Rule 1.7 Effect on A-C Privilege – i. When you represent multiple parties, you often discuss things with parties. In this instance, the privilege does not attach. ii. If A and B sue each other, neither can assert the privilege against the other. When lawyer represent multiple parties, attorney client privilege does not protect them individually. b. Confidentiality – Hypo: NJ lawyer is doing estate planning. H says there is illegitimate child that W does not know of. Lawyer also represents W. You can have a duty of confidentiality to one client and a duty to disclose to the other. i. Arguable whether duty to disclose is greater than duty of confidentiality. Lamprecht Fall 2005 Legal Profession ii. If you can disclose, then you are home free. One way of handing this is: we only represent you if you waive confidentiality to the other. iii. Restatement – clients should expect lawyer to share all information. 4. Common Interest Rule – If A represents X and B represent Y, and interests are in common. This Rule states that – statement of one client to the other lawyer if it is part of a common interest, the statement will be regarded as privileged. Normally, statement to another lawyer does not have privilege attach to the statement. Hypo: Lawyer is representing insured and is hired by All State. Lawyer is then hired by someone to sue All State on a different matter. A-S says cannot sue on an unrelated matter without A-S’s consent. Lawyer says insured is the client. Court would say A-S is also clinet and cannot sue them. 5. Main point is that if lawyer is paid by insurance company and is representing the lawyer, the duties are owed to the client. E. Lawyer as Witness 1. Under Rule 3.7, if the lawyer is likely to be a witness they cannot act as counsel. There are 3 exceptions to this: a. Testimony is uncontested. b. Testimony relates to the nature and value of legal services rendered in the case; or c. Disqualification of the lawyer would work substantial hardship on the client. 2. There is an anti-imputation provision in Rule 3.7(b) so that a partner in a firm may act as advocate and another partner may act as a witness. Unless, a. Violation of Rule 1.7. Conflict issue – where partner B is going to be adverse, Partner A may hold back in cross-examination. Hypo: Lawyer represents H in divorce litigation. Lawyer who is going to be witness does pre- trial work and then partner will try case. This is consistent with Rule 3.7. Lamprecht Fall 2005 Legal Profession II. Successive Conflicts of Interests A. Private Practice 1. Main issue is whether a lawyer is barred from taking a current client because he represented someone who is now a former client. 2. Rule 1.9 governs the duties owed to former clients. Under 1.9(a), lawyer who has 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 a. Former client gives informed consent. b. Note: Definition of substantial relationship is: could the lawyer in the first representation obtain information relevant to the second representation. Hypo: Lawyer represents Doctor X in drafting a Pship agreement with Doctor Y. Agreement is done, but then there is latter a dispute. Y asks L to represent him in suing X. If X was a current client, clearly L could not represent Y, but what about the fact that X is a former client. It is same or substantially related so L would have to get informed consent from X. 3. The Rule is intended to protect the former client because of confidentiality issues. Rule 1.6 covers confidentiality, but the rules do not trust lawyers. Analytica v. NPD Research: p. 276 Facts: Corp wants to give Malec 2 shares of NPD stock. Must establish value of the 2 shares. Malec goes to lawyer named Fine. Analytica, represented by Fine’s firm, is suing NPD. NPD moves to disqualify law firm under Rule 1.9. Analysis: Are the representation of Malec in stock valuation and Analytic in antitrust substantially related? Holding; Court found representations were substantially related. Court says Fine in evaluating stock would ask about market strength and this is at heart of antitrust action. Hypo: Lawyer represents Doc X in Pship agreement. Doc X is getting divorce and W asks L to represent him in divorce action where economic issues will come up. Argument for substantially related: Information about value of practice is substantially related to the Pship agreement. 4. The focus for determining substantial relation is not the legal theory, but the type of information involved. a. Posner says: Test is whether the lawyer could have obtained information. Question is not whether lawyer did obtain confidential information. Question is whether the lawyer could have obtained. b. Asking lawyer what they did obtain would to violate confidentiality. Lamprecht Fall 2005 Legal Profession 5. Under Comment 3 to Rule 1.9, information acquired in prior representation may have been rendered obsolete by the passage of time, then it is not a disqualifying factor. Hypo: Lawyer represents corp in employment discrimination matters. Representation stops and employee comes to lawyer and wants to sue corp in employment discrimination case. Argument for company is Playbook information: Lawyer knows how corp handles employment discrimination matters. 6. Courts are generally reluctant to grant disqualification because it results in delay. a. Some courts have said they will not disqualify, but will refer to the disciplinary board when information could have been learned but was not. 7. Under the Common Interest Rule, someone who is not technically a client may be protected as a former client. Is this right? a. Ex. Member of trade association gives lawyer information so that can help lawyer achieve an end. Member is treated as former client because the interest was the same. b. Someone who was not a client – protected by Rule 1.9 if deemed a former client. 8. There are some instances where a preliminary interview (p. 286 n. 6) may lead to a A-C relationship. a. Can keep preliminary interview vanilla to avoid problems. 9. Who is a former client? a. Payment is not controlling. b. If lawyer performed legal services then W is a former client. Q: H is wage earner. W interviews top divorce lawyers and goes to #6. Can H hire 1-5? A: W will move to disqualify, H can show she was acting in bad faith to conflict out. 10. Under Rule 1.18, a person who discusses representation with a lawyer is deemed a prospective client. Under (b), lawyer may not reveal information obtained. a. Under Rule 1.18(c), a lawyer subject to (b) shall represent a client with interests materially adverse to those of the client if the information received could be “significantly harmful to the prospective client.” b. Under 1.18(d) – even if the lawyer has received disqualifying information, the lawyer can go ahead i. Lf the clients consent in writing or ii. Lawyer took reasonable measures to avoid too much information. iii. Disqualified lawyer is screened – lawyer’s firm may continue. iv. Written notice is promptly give to the prospective client. Lamprecht Fall 2005 Legal Profession c. “Screen” is defined in Rule 1.0 – isolation of lawyer from any participation in a matter through timely imposition of procedures within a firm. 11. Comment 5 to Rule 1.18 states waiver may be used to condition preliminary interview on notion that any information obtained will not prohibit the lawyer from representing a different client in the matter. a. Limited waivers have best chance of being upheld. Hypo: (Hot potato issue p. 287) Lawyer represents client X in small matter. Y comes in to sue X in a large matter. Can lawyer represent Y against X? No there is conflict and Rule 1.7 prohibits the representation. Hot potato issue: Can Lawyer withdraw from X and take Y’s case? If L withdraws, X is former client and Rule 1.9 applies. Is it same or substantially similar? 12. Under Jelco, Case law says you cannot withdraw from one representation to permit you to sue the former client. You cannot drop a client like a hot potato. a. The doctrinal basis for saying this is lawyer cannot exercise legitimate right of withdraw when you are dropping client to turn 1.7 case into 1.9 case. Q: What if you represent Pl and Def is taken over by existing client? A: Under Comment 5 of Rule 1.7, lawyer has option to withdraw from one representation to avoid conflict. Lawyer must seek court approval. Q: L represents X episodically and then year goes by with nothing. Y wants to retain L to sue X. A: L must determine if X is current client (Rule 1.7) or former client (Rule 1.9). B. Migratory Lawyer 1. First issue is whether the firm the migratory left is tainted by former client of the lawyer? Hypo: L works at Able law firm. L represents Dr. Pill in negotiations with Dr. Pusher. At end of negotiations, relationship ends. Psuher comes to Able to sue Pill in matter related to negotiations. Q: Can lawyer represent Pusher? A: L could not represent Pusher because of Rule 1.9(a), unless Pill consents. Q: Can other lawyer in Able represent Pusher? A: No, under imputation of Rule 1.10, because L is barred all lawyers still in Able are also imputed out. 2. Under Rule 1.10(b), when a lawyer has left a firm, the firm may represent person who used to be an adversary of the ex-lawyer unless a. Matter is same or substantially the same to that the ex-lawyer was part of, AND Lamprecht Fall 2005 Legal Profession b. Any lawyer in firm has informed protected by Rule 1.6 (confidentiality) and 1.9(c). Q: L leaves Able, the Pusher comes to Able. A: L is no longer at Able so there is no longer imputation of Rule 1.10(a). Key question for application of Rule 1.10(b) is whether anyone in the firm has confidential information. 3. Second issue is whether the migratory lawyer carries a “taint”? Hypo: L leaves Able and joins Zeb Firm. Psuher comes to L and wants to sue grow. Can L represent? a. Lawyer is barred regardless of firm by Rule 1.9(a), unless L obtains consent. Q: Can another lawyer in Zeb Firm represent Pusher? A: Under ABA Rules, other lawyers in Zeb would be imputed out. 4. Many decisions and ethics rules permit a firm’s lawyers from representing the old adversary of a migratory lawyer if the migratory lawyer is screened. a. PA Rule 1.10(b) adopts principle of screening. Firm may represent if: i. The disqualified lawyer is screened. ii. Written notice is give to the client. b. Also, lawyer must not get portion of the fee. 5. The third issue is if a lawyer at a firm who represented a client may move to another firm and represent the adversary. a. Lawyer is not barred by Rule 1.9 because while at firm, never directly represented the client. Rule 1.9(b) is not a problem so long as the lawyer did not acquire confidential information. Q: What if L acquires confidential information on Pill while at Able and then goes to Zeb. Can Zeb represent Pusher? A: L is barred under Rule 1.9(b) and that conflict is imputed to Zeb through Rule 1.10(a). However, PA rRule permits Zeb to represent Pusher so long as L is screened. 6. ABA Model Rules do reject screening because they do not trust lawyers. Presumption is lawyers will share confidential information. a. It has effect on mobility of lawyers. No because of imputation. This makes it a lot harder for lawyers to switch firms. Conflict carried by migratory lawyer can cause firm to be imputed out. Lamprecht Fall 2005 Legal Profession Cromley v. Board of Education: p. 294 Facts: Lawyer goes from representing the Pl to the firm representing the Def, but the law firm screens him out Analysis: Under Model Rules, this violates the ethics rules regardless of whether there is a screen. The firm should be imputed out. Holding: Court not bound to follow the Model Rules. In some instances, the court will find conduct violated rules, but court will not disqualify and just make lawyer face the disciplinary board. Q: A different lawyer in the firm goes elsewhere. Can the different lawyer who went elsewhere sue Dr. Pill? A: Rule 1.9: once lawyer leaves infected firm, lawyer is free to sue the former client of the infected firm as long as the lawyer does not have confidential information. 7. Rule 1.9 refers to “lawyer” so the rule would seem not to apply to a paralegal or summer associate. a. Under 5.3(a), if you hire a non-lawyer, you have to make sure their ethical conduct is equivalent to that of a lawyer. You cannot have a non-lawyer who can tell you confidential information. C. Government Service 1. Rule 1.11 deals with conflicts of interest for former and current government offices and employees. 2. Rule 1.11(a) disqualifies lawyer who served in gov’t practice, and are subject to Rule 1.9(c) 3. If a lawyer is disqualified under (a), (a), then the whole firm is disqualified unless the lawyer is screened. a. Note: ABA permits screening here, but not in Rule 1.10. 4. Rule 1.11(d) deals with current gov’t employees. a. The concern is lawyers who were in private practice and now serve gov’t. b. Law clerk can negotiate for private employment so long as they get consent. Lamprecht Fall 2005 Legal Profession Ethics in Advocacy I. Impact on Lawyers A. Introduction 1. There are two views of the trial system: a. Trial in law and a search for truth b. Trials are adversarial system and not a search for truth. 2. Each view would produce different ethics rules. 3. Under Rule 6.2, a lawyer does not need to accept an appointment for a client or cause that is repugnant to them. 4. Rule 3.3 requires candor to a tribunal. Tribunal includes judge, arbitrator, others who can make final decisions. Hypo: If judge asks if all documents were turned over and lawyer lies and says “yes,” this violates Rule 3.3 Hypo: Judge asks DA if there are prior convictions and DA says no, but L knows there was one. Does L have to tell judge? Conventional answer: as long as lawyer has not made a false statement to court or anyone, no obligation to tell judge. 5. NJ requires that a material fact may not be withheld if it will mislead the tribunal (NJ p. Supp-222). Q: If a lawyer’s client has died and L does not tell judge what is violated? A: Rule 8.4(c) engaging in dishonesty fraud or misrepresentation. Rule 3.3(a)(1) making false statement to tribunal—by showing up in court, you are making implied assertion to court. 6. Under Rule 3.3(a)(2), lawyer may not knowingly fail to disclose adverse binding authority in the jurisdiction if opposing counsel has not disclosed it. a. It would be a violation of Rule 1.4(b) (must disclose to client). b. Know is actual knowledge inferred from the circumstances. Recklessness – lawyer cannot shut his/her eyes to it. You knew it if you have to shut your eyes to it. B. Client Lies 1. Under Rule 3.3(a)(3), a lawyer may not offer evidence that the lawyer knows to be false. Lamprecht Fall 2005 Legal Profession a. If false testimony has been offered, the lawyer must take reasonable remedial measures including disclosure. 2. If the client is planning to lie there are a number of concerns: a. Rule 3.3(a)(3), you cannot offer false testimony into evidence. b. Rule 1.4(b) you cannot assist client in crime or fraud, perjury. c. May want to withdraw so Rule 1.16 is at issue. If in litigation you need authority from court, you can say professional reasons compel you to withdraw. No further obligations once withdrawn. d. Rule 3.3(b) states if lawyer knows client is about to engage in criminal act (perjury) lawyer shall take reasonable remedial measures. Q: Can you disclose to a tribunal? A: There are confidentiality issues at play here. Nix v. Whiteside: SC p. 340 Facts: W charged with murder and claims stabs in self-defense. W never saw gun, but believed he saw a gun and has to say he saw one. When it comes to trial, W tells lawyer he saw gun. Lawyer says cannot permit to do it because lawyer knows it is a lie. W then appeals on ineffective assistance of counsel. Holding: Court says there is no error because the lawyer acted correctly and in accordance with model rules. 3. There are two views on preventing clients from perjuring themselves: a. Minority – Criminal defendants have right to testify. Lawyer may not ask questions where the answers will be perjurious, but lawyer can ask question and client may perjure. In closing arguments, lawyer may not base argument on what he understands to be perjurious b. Majority Rule – Comment 7 – Present accused as witness or give narrative statement even if client plans to perjure. How are theses different? 4. What if the lawyer reasonably believes something to be false but does not know? a. You may be wrong though so you are only mandated if you know. b. You may not ask about the situation, but then you run risk of not doing job by gathering all the information. 5. Lawyer is no under any affirmative duty to determine if the client is lying. 6. Witness preparation is an important part of a client’s job, but must not spill over to the lawyer telling the client what to say. Lamprecht Fall 2005 Legal Profession a. Often happens that lawyer suggests to a witness what to say under the circumstances. There are problems with this but you do not see disciplinary action. Hypo: L prepare witnesses by giving paper which says remember you saw names on the bags. If lawyer is telling witness to lie clearly wrong If telling witness what to say problematic b. There are ethical issues but very little enforcements if suggesting what client should say Q: What if the lawyer gives the client the law then has client adapt testimony? A: Some people defend and say you are entitled to tell the client what the law is. You would almost never see a disciplinary action with this. 7. Bottom line: As long as do not tell client to lie, everything else seems to be fair game in preparing the witness. 8. Literal truth is not perjurious Bronston p. 364. If you should have understood questioner misspoke, you may be held for perjury. C. Other Lawyer Practices 1. Under Rule 3.4(e), lawyer may not allude to an irrelevant mater not supported by evidence. a. Ex. “In closing, this is not about Pearl Harbor . . . .” b. Rule prevents appeals to bias. 2. False inferences bring up ethical issues, but Becker does not know of any disciplinary cases for a lawyer arguing a false inference. 3. It is not a violation fro a witness to testify truthfully, but erroneously. Ex. Dates wrong. D. Frivolous Positions and Abusive Tactics 1. Under Rule 3.1, a lawyer may not assert a frivolous position. 2. Rule 3.2 requires a lawyer to make efforts to expedite litigation consistent with the interests of the client. a. It is not a justification that everyone does it. Ethical thing is whether a competent lawyer acting in good faith has a substantial reason other than delay. Lamprecht Fall 2005 Legal Profession 3. Rule 3.4(b) prevents a lawyer from offering an inducement to a witness that is prohibited by law. a. You can pay an expert witness. b. You cannot pay a fact witness for coming in and testifying. PA rules you can pay fact witness to compensate them for their loss of time, ex. 2 days’ wages. c. ABA rules go with the local rules. 4. Rule 3.5(b) lawyer cannot communicate ex-parte with a judge juror or backup juror unless expressly authorized. a. You can contact jurors after the trial under 3.5(c) unless the juror says leave me alone or the communication is harassing 5. Restrictions on right to practice cannot be imposed under Rule 5.6. Lamprecht Fall 2005 Legal Profession Real Evidence I. Lawyer’s Obligations with Respect to Real Evidence A. Criminal Cases 1. There is not a lot of ethics authority related to real evidence. 2. Rule 8.4(d) can act as a catch to prohibit conduct that is prejudicial to the administration of justice. Hypo: Client comes into office saying he shot someone and gives the lawyer the victim’s wallet. No one knows the client is involved. Can the lawyer keep the wallet? 3. Under Rule 3.4(a), a lawyer may not unlawfully block obstruct another party’s access to evidence. a. Another body of law is incorporated into the rule because of “unlawfully.” b. In the hypo, criminal law obstruction of justice statutes would be at issue. i. PA law: unlawful obstruction of justice in acriminal statute applies to destroying or concealing evidence even if there is no arrest or no investigation. ii. The Federal statute is very broad and a criminal proceeding need not be initiated. c. In the hypo, it is unlawfully concealing evidence because it would also make lawyer guilty of obstruction of justice People v. Meredith: p. 412 Facts: Def accused of conspiracy to murder. Def tells lawyer he has wallet. Lawyer’s PI gets wallet. He cannot keep it, but what does he do with it. Issue: Was the location of the wallet a product of a privileged conversation? Holding: Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question. 4. May be privileged, but there is an overriding duty to turn over fruits of crime to the police a. In turning over evidence, prosecution must avoid content of attorney-client communications. b. Prosecution cannot let finder of fact know that the source of the information was the defense attorney 5. Bottom line is there are 2 rules when dealing with evidence: a. Lawyer may not take evidence and keep it; Lamprecht Fall 2005 Legal Profession b. location of evidence must also be revealed so authorities can do the proper investigation. Q: Client offers L wallet and L says “lose it in a river.” Is this valid? A; No, because you are telling obstruct justice. You cannot tell someone else to do it under Rule 3.4. Q: DO you have to tell client to turn it over to police? A: AZ decision said no obligation to tell someone to turn it over. If it is not obstruction of justice, it does not require to be turned over. 6. In Meredith, the mistake was for the lawyer to take the wallet out of the trash bin; this created an obligation to turn it over. If wallet was just observed, there is no obligation to disclose. B. Civil Cases 1. In civil context, there are no obstruction of justice statutes. 2. Corporation often have policies for document retention. Justifications are storage issues. 3. Issues arise when documents are destroyed and litigation is looming. a. If it is subpoenaed, there is obligation to comply. b. If suit filed and you destroy everything, Rule 3.4(a) uses word unlawfully. c. A Rule not saying unlawfully did not make it into the Rules. d. If unlawfully means something in context of civil litigation, there is no consensus. e. May be an 8.4(d) issues. Lamprecht Fall 2005 Legal Profession Corporate Issues I. Negotiations and Transaction Matters A. Negotiations 1. As far as model rules, you do not have a specific section in model rules that deals with negotiation 2. Drawing up agreement that is premised on crime or fraud is assisting the client in crime or fraud and violated Rule 1.2(d). 3. There are two major issues to think about: a. How far can the lawyer go in assisting the client? i. Under Rule 1.2(d), you may not assist in crime or fraud. ii. It is crime or fraud where conduct involves an intent or purpose to deceive. b. What are the lawyer’s ethical duties in negotiations? i. Must explain to your client under Rule 1.4(b) in order for client to make informed decisions. 4. If crime or fraud is at issue, lawyer may withdraw under Rule 1.16. a. Confidentiality issues, but crime or fraud is an exception under Rule 1.6. b. Remember is permissive (MAY) not mandatory (SHALL). c. Some states require disclose confidential information to prevent client from carrying out fraudulent act resulting in financial loss to another person. FL and Wisc. 5. Comment 10 of Rule 1.2 states that in some situations, withdraw may be insufficient and the lawyer may be required to disaffirm any opinion, document, affirmation or the like. a. It is good practice to disaffirm in order to avoid civil liability 6. Academics argue Rule 4.1(b) requires more than just withdraw; must disclose to avoid assisting in crime or fraud by client. 7. Lawyers want to push envelop in negotiations, but cannot engage in lies under Rule 8.4(c). But is puffery permitted? a. Comment 2 to Rule 4.1(a) leaves some room for puffery in estimates of price or value of item in transaction. Very slight room. b. Lawyer may not misrepresent his authority, “ My client has not authorized me.” Lamprecht Fall 2005 Legal Profession 8. Under Rule 4.3, lawyer may not state he is disinterested when dealing with an unrepresented person. a. In addition, Rule 4.3 prohibits the lawyer from giving legal advice to an unrepresented person other than the advice to secure counsel if there are interests in conflict. Florida Bar v. Belleville: p. 436 Facts: Lawyer was being disciplined for agreement drawn up. Holding: Court said two important things: (1) Lawyer must explain if the person does not understand the lawyer’s role; and (2) attorney must explain in clear terms. LB thinks this is dead wrong. If other side totally screws up, you have no duty to say correct law. If you make it clear to other side that you do not represent them, there is no obligation to go further to explain deal to the other side. It is arguable giving advice to the other side. 9. Lawyers hate dealing with unrepresented parties because courts will bend over backwards to support unrepresented party. Q: Can a prosecutor in negotiating with a fugitive claim he is a Public Defender? A: Not this violates Rule 8.4(c) – engaging in dishonesty. 10. In negotiating a settlement, a lawyer may not lie about policy limits. Q: If a hospital only knows about 1 insurance policy and cuts break, must lawyer reveal 2nd policy? A: LB: If the client did not lie and did not conceal, there is no obligation to tell adversary everything unfavorable to you. 11. The Model Rules do not have a Rule on lawyer threatening criminal prosecution if person does not meet demands. Hypo I: W threatens H that she will go to DA and report abuse if H does not agree to property settlement. a. Despite no Model Rule, there is the crime of extortion. i. PA: Someone is guilty of theft if threaten anyone of a criminal defense. ii. It is a defense that property obtained was honestly claimed that property was restitution for accusation. This is in hypo extortion pure and simple because the two acts are unrelated. Abuse is unrelated to property settlement. Hypo II: A’s car is vandalized by B. A’s lawyer says to B, here is the bill, if you do not pay, they will tell police. This is not extortion because it is classic example of defense. Restitution is in good faith and the money sought is related to harm done under the circumstances. Lamprecht Fall 2005 Legal Profession Hypo III: Lawyer represents hotel clerk who was hit by celebrity. Lawyer for clerk says client has trauma and wants $ for suffering. Threatens reporting it to the DA. This is kind of in the middle. Where the claim (amount of $) is not easily quantifiable (in car accident, it is easily quantifiable), it may not be extortion if it is reasonable amount for harm caused. 12. If extortion is committed, Rule 8.4(b) states it is misconduct for lawyer to commit a criminal act that reflects adversely on lawyer’s honesty, trustworthiness. a. Note: getting speeding ticket is not in violation of Model Rules, only certain crimes are covered under Rule 8.4(b). B. Lawyers for Entities 1. When you are representing a corporation, you are actually dealing with individuals, but you represent he corporation, not the individuals. 2. Under Rule 1.13(b) the lawyer must report any action by constituent at odds with their duties owed to the higher authority in the organization. a. There are two main elements: i. Lawyer must know someone is violating duty ii. Violation is likely to result in substantial injury to the corporation. b. Lawyer has no duty of confidentiality to the corp officer who disclosed the information. You do not owe a duty because they are not your client. c. It is also required by Rule 1.4(b) must explain matters to the client to permit client to make informed decisions d. Lawyer must only refer up, then obligation is fulfilled. Q: Can L call media to reveal fraud by constituent? A: Lawyer has duty of confidentiality to the corp and this is information that is relevant to the representation. 3. Under Rule 1.13(f), when dealing with the entity’s constituents, the lawyer must explain identity of the client when lawyer knows or should reasonably know the entity’s interests are at odds with the constituents. 4. Under Rule 1.13(g), the lawyer may represent a constituent of the entity, but the lawyer is subject to conflict of interests rules – Rule 1.7. Consent must be given by corp. Hypo: Officer asks to represent in PI case. You need conflict of interests to trigger Rule 1.7. In case where representing in PI case, no conflict. Hypo: Officer comes in and says being sued by SH X. X is alleging officer committed fraud in IPO. Can lawyer represent corp and officer? You can under 1.13 under conflict analysis. There is a concurrent conflict (that there maybe a conflict) under 1.7. There is a risk—possibility that it Lamprecht Fall 2005 Legal Profession will turn out that what the plaintiff said is true and you cannot do justice to both clients. No absolute prohibition to representing both. 5. The majority view for a lawyer representing a partnership is the lawyer does not represent the general partner. 6. In close corp where lawyer works with the individual owners, there is more of a risk that court will hold lawyer implicitly represents SHs. 7. Sarbanes-Oxley caused the ABA to amend 2 rules in 2003: a. Rule 1.6 – this now provides greater discretion for attorneys to disclose confidential information where financial crime or fraud. b. Rule 1.13 – made more responsive to corporate wrongdoing when lawyer learns about it. Lawyer shall refer matter to higher authority in company when constituent breaches duties. Lawyer only has to refer up – no other obligations. i. Some say this does not go far enough because must know. 8. There may be situations where Rule 1.13 permits disclosure and Rule 1.6 does not: Rule 1.6 Rule 1.13 1.6(b) depends on lawyer’s services – you cannot always Lawyer’s services do not need to be used to allow for disclose if client has not used lawyer’s services disclosure Aimed to prevent crime or fraud that will injure Disclosure is permitted to prevent injury to the someone else organization. 9. SOX required the SEC to adopt rules regulating professional conduct of lawyers. a. Rules affect lawyer who work for large public companies. b. Mandatory reporting up obligation. c. Require disclosure to SEC of material violation of securities laws or breach of fiduciary duty. d. Requirements follow reasonably believes standard not know standard. e. Lawyer may have further duties after reporting up unlike ABA. f. Also, SEC provides for permissive disclosure of confidential information. 10. Under 1.13(e), if lawyer believes they are terminated for reporting up violation, lawyer must still report up to the entity’s highest authority. “Retaliatory discharge.” a. If contract employee, can only be fired for terms of contract. b. Often employee will be protected for whistle-blowing. c. For non-lawyers, there is tort of retaliatory discharge. d. Associates in firm should insist on tort. Crews v. Buckman Labs: p. 478 Issue: Can lawyer bring action for retaliatory discharge when she is terminated for whistle blowing? Holding: Lawyer is given the at-will employee tort of retaliatory discharge. Lamprecht Fall 2005 Legal Profession 11. In retaliatory discharge action, can the lawyer reveal confidential information? a. Courts have relied on Rule 1.6(b)(5) which provides for self-defense for lawyer where controversy between lawyer and client. 12. Under Rule 5.2, a lawyer is bound by the Model Rules even when the lawyer acted at the direction of another person. a. Lawyer is not bound under Rule 5.2(b) if acts in accordance with supervisory lawyer’s reasonable resolution of an arguable question of professional duty. Lamprecht Fall 2005 Legal Profession Control of Quality I. Mechanisms A. Admission to the Bar 1. In order to practice, there are certain quality control mechanisms that must be passed: a. Bar exam - applicants for admission have to exhibit competence b. Character – can focus on character before law school and after law school. B. Practicing in Jurisdiction without a License 1. If you are not licensed in a jurisdiction, then there are issues. Hypo: Jackman: Person licensed in Mass and then goes to NJ and practices for 7 years then it comes to light. 2. States have statutes that prohibit unauthorized practice of law. These statutes make it a crime for person to practice law in state where not licensed to do so. Apply to lawyers not licensed lawyers and non-lawyers. 3. Second form of sanction is Rule 5.5(a) “violates ethical code of the state where person is licensed a. Lawyer shall not practice in jurisdiction in violation of the regulation of the legal profession in that jurisdiction. 4. Third sanction – fee forfeiture. a. Ex. J gets 1M fee, client can refuse to pay fee and claim it is forfeited. J has earned his fee, but he did it in violation of public policy of NJ. 5. Under Rule 5.5(b), lawyer not admitted to practice in this jurisdiction shall not: a. Establish a presence b. Hold out to public authorized to practice in that jurisdiction. 6. Under Rule 8.5(a), the jurisdiction in which the lawyer is no licensed may discipline, but it is not clear how this would work. a. It is clear the jurisdiction where the lawyer is licensed can discipline. 7. Under Rule 5.5(a)(1) – lawyer cannot assist another to practice law in violation of laws of jurisdiction. Lamprecht Fall 2005 Legal Profession a. Comment 2 permits the lawyer to delegate work to a paralegal so long as there is supervision and the lawyer maintains responsibility. b. Comment 3 permits lawyer to give non-lawyer advice on what the law is. 8. Court can admit a lawyer pro hoc vice for certain cases which permits the lawyer to try cases in certain jurisdictions. a. There is no transactional equivalent of pro hoc vice. Birbrower P.C. v. Superior Court: p. 574 Facts: Lawyers from BMCF travel US doing transactional work. Client claims fee forfeiture because not licensed to practice law in PA. Holding: BMCF ended up forfeiting a portion of fee related to conduct in state not licensed in. Illustrates that practice of law is no clear in transactional work. 9. Courts have found a de minimis exception for practicing law. Q: What if work is done electronically, is this the practice of law? A: Under Birbrower, the definition of practice of law did not depend on presence in the state. 10. As a result Birbrower, the model rules were relaxed to permit some limited practice of law in non-licensed states. 11. Under Rule 5.5(c) lawyer not licensed in a jurisdiction may provide legal services on a temporary basis in a jurisdiction that: a. Undertaken with lawyer who is admitted to practice in the jurisdiction and actively participants in the matter b. Authorized by law or order to appear in such proceeding c. Related to pending or potential arbitration, mediation or other alternative dispute resolution. d. * are not within the previous and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction which the lawyer is admitted to practice. i. This is an important BROAD exception. 12. Under Rule 5.5(d), a non-licensed jurisdiction may provide legal services in jurisdiction that: a. Are provided to the lawyer’s employer or it organizational affiliates (house counsel) b. Services the lawyer is authorized by federal or other law to provide. i. Ex. May represent for federal income tax practitioner. Do not need to be admitted somewhere. Q: Can a lawyer offer a client in a jurisdiction advice about law in another jurisdiction? Ex. PA lawyer saying Cali will is not enforceable. Lamprecht Fall 2005 Legal Profession A: Does not matter the subject is law of another jurisdiction does not mean practicing law in that jurisdiction. C. Non-Lawyer Practicing Law 1. The definition of practicing law is drawn very broadly to protect lawyers. a. It often involves broader areas that involve legal skill or knowledge. Ex. Salesperson explaining warranty. b. Certain activities by non-lawyers that involve appearance in court or representation of parties usually involve the practice of law. c. Other aspects with giving advice or assisting can be viewed as practice of law under broad definition, but courts create exceptions because public interest may permit the activity the salesman explaining the warranty. Ex. Real estate broker. 2. State organized bars challenges any actions by non-lawyers that conduct actions that may possibly be the practice of law. 3. There are First Amendment Issues at play. a. Ex. online Will preparation tools helping people do things on their own. b. Sellers of software have first amendment right to sell their stuff. D. Supervisory Responsibilities 1. Under Rule 5.1(a), managing authorities in a firm, must make reasonable efforts to ensure all lawyers conform to the Model Rules. a. Big firms often have experts to ensure Rule compliance. 2. Under Rule 5.1(b), a direct supervising attorney must make sure subordinates comply with the model rules. 3. Under Rule 5.1(c), lawyer will be responsible for another lawyer’s conduct if: a. The lawyer orders or ratifies the conduct b. Partner has responsibility, supervising lawyer has responsibility, and supervising lawyer can be vicariously liable. 4. Rule 5.3 is the same as Rule 5.1, but it deals with supervision of nonlawyer assistants. 5. Under Rule 5.2, if you are subordinate and told to violate Rule and do so, you are in violation. Lamprecht Fall 2005 Legal Profession E. Specialization of Lawyer 1. Under Rule 7.4, a lawyer may communicate whether they practice in particular fields of law. a. Lawyer shall not imply a lawyer is certified in a field of law unless: i. Lawyer is certified ii. Name of certifying organization is identified. Hypo: Firm says “specialty in ___.” This is OK under ABA rules because not saying certified. b. PA Rule –shall not state as specialist. Not limited to saying to certified. Could be interpreted that cannot use word specialist. II. Remedies for Professional Failure A. Malpractice 1. The essential elements in a malpractice suit are: a. Attorney-client relationship existed– there are 2 parts to this: i. Reliance by client reasonably believes that lawyer is supplying legal services or will supply legal services. ii. Lawyer knows of the client’s belief or reasonably should know. b. Lawyer must be negligent or in breach of contract – held to standard of reasonable lawyer. c. Proximate cause – lawyers acts were proximate cause of Pl’s damages d. But for the lawyer’s conduct the Pl would have been successful – must show you would have won. i. But for is more difficult to show in transactional context. e. Damages 2. Many states have malpractice which permits the Pl to recover emotional distress damages, but not on breach of fiduciary duty action. a. Remember Breach of fiduciary duty is an alternative theory to malpractice. Togstad v. Vesely, Otto, Miller & Keefe: p. 612 Facts: 14 months after a hospital accident wife goes to lawyer about possible suit. Lawyer says let me look into it. He never calls back. She goes to another lawyer who thinks there is case. SoL against hospital has run so she sues first lawyer. Holding: Pl met all malpractice elements and L was liable. 3. There are some instances where the 3rd party is the equivalent of a client. a. Ex. Beneficiary under will. If lawyer acted properly, heirs would have enjoyed benefit. Lamprecht Fall 2005 Legal Profession b. Point is sometimes people who are not clients may have standing to sue for malpractice. 4. As part of showing the standard of care, does the Pl need to introduce expert testimony? a. In many cases, an expert is needed at all phases, but especially for standard of care. b. Ex. Togstad – expert lawyer said you must consult hospital record and talk to doctor. Jury would not know that this is the standard of care. Q: Is violation of an ethics rule dispositive proof of malpractice? A: Violation is not per se breach of duty of care, it is evidence, however. Majority rule – it is evidence of a duty of care if the rule was intended to protect someone in position of Pl Viner v. Sweet: p. 633 Facts: Pls sue lawyer for provisions of transaction that are disadvantageous. Analysis: But for is more difficult in transactional context. If requiring “but for” must show Pl would have better deal and other side would have agreed or Pl would not have agreed without negligence PA Hypo: Woman enters into co-habitation with another man. H sues lawyer for not included cut off of alimony if co-habitation. PA court said it is malpractice to not explain basic legal principles. B. Malpractice in Criminal Context 1. General rule for malpractice in criminal cases – there is no causation unless the Def proves that the Def was innocent of the charge. a. If Def is in jail for life, it is because of the crime, lawyer malpractice is not the proximate cause. b. Some jurisdictions must show the conviction was reversed or overturned before the malpractice can proceed. 2. Majority rule – Def must prove actual innocence to maintain a malpractice action. Hypo: Woman charged with tax fraud. AUSA makes offer for her to testify against others involved for immunity. W’s attorney does not relay the information. W pleads guilty in plea bargain gets light sentence, but could have had no sentence. a. W sues lawyer and court says must prove innocence and she could not because she pled guilty. 3. The burden of proof for showing innocence in civil case is preponderance of the evidence. Lamprecht Fall 2005 Legal Profession C. Disciplinary Systems 1. There must first be an act justifying discipline. In re Austern: p. 678 Facts: Lawyer represents client. There is an escrow account where client will put $10k to fund any additional work. Clients at closing write check. Lawyer manages escrow account. Client tells Austern there is no money to cover the account. Lawyer does not tell anyone. It comes out that check was worthless and Austern as lawyer was disciplined. Holding: Disciplinary proceeding – lawyer is found liable and given light sentence. - Rule 1.2(d) violation for assisting client in fraudulent act. - Rule 8.4(c) conduct that is dishonest. 2. Rule 8.4(c) dishonest act applies in a lawyers personal life as well as professional life. Hypo: L tapes between P and Q. Under federal law, it is legal, but under state law, it is unlawful. Because L violated criminal statute, he can be prosecuted. Are there Rule implications? - Rule 8.4(c) is not applicable because it is not deceitful, fraudulent. It could be argued that it is dishonest. o Dishonest is not defined by ethics rules. It is a common legal concept, however. - Rule 8.4(b) not violation to commit ANY criminal act. It is criminal act that reflects adversely on lawyer’s honesty, trustworthiness of fitness. Q: What if a prosecutor files false charges? A: Rule 8.4(c) is obvious, but also remember there is a Rule 3.3 violation for lack of candor to a tribunal. 3. Rule 4.1 prohibits: a. false statement to third person or b. failing to disclose material fact to third person when it is necessary to avoid assisting a criminal or fraudulent act by a client. D. Lawyer’s Private Life 1. Certain rules apply in a lawyer’s private life a. Rule 8.4(c) – prohibiting dishonesty, fraud deceit or misrepresentation; i. If the lawyer files a misleading driver’s license application. Rule 8.4(c) applies b. Rule 8.4(b) – commit a crime that reflects adversely on the lawyer’s honesty, trustworthiness or fitness—apply to a lawyer’s personal life. 2. Massachusetts takes Rule 8.4(c) further and says a lawyer cannot engage in conduct that “adversely reflects on his or her fitness to practice law.” Lamprecht Fall 2005 Legal Profession E. Racist and Sexist Conduct 1. You see incidents of this type of conduct from one lawyer to another. It often happens in depositions because adversarial situation and no court monitoring. 2. This conduct is dealt with by court’s power to sanction conduct. However, there must be sufficient gravity to sanction. 3. ABA Model Rules do not really deal with this type of conduct: a. Comment 3 to Rule 8.4 says racist and sexist words or conduct violates Rule 8.4(d)—prejudicial to the admin of justice. b. If you interpret narrowly, must show actual prejudicial effect. However, if you interpret broadly (courts tend to use), is this conduct in conflict with system of administering justice. Is this kind of conduct good? c. Rule 8.4(d) does not apply to lawyer’s personal life however. d. Rule 3.5(d) sometimes apply the disruption to tribunal prohibition to disruptive conduct by a lawyer. F. Reporting Misconduct 1. Rule 8.3 requires a lawyer to report misconduct of another lawyer or judge. a. 8.3(a) If lawyer knows of misconduct that raises a question as to the lawyer’s honesty, trustworthiness or fitness, lawyer shall inform the appropriate authority. b. 8.3(b) If lawyer knows judge has committed violation, shall inform the appropriate authority. 2. Rule 8.3 requires actual knowledge. a. If the lawyer reasonably believes, there is no obligation to report, must KNOW. b. “Knows” requirement seems to protect lawyers to the nth degree. 3. Some states have “should” language and not the mandatory “shall” of the Model Rules. 4. Lawyers are often willing to report adversaries, but not friends. Some this this rule is least enforced. Hypo: Lawyer goes to party and sees lawyer sell drugs. Is there a violation of professional ethics for selling drugs? Rule 8.4(b) lawyer has committed a criminal act that reflects adversely on lawyer’s fitness. Q: What if lawyer blows SoL, does another lawyer have to report? A: This is probably Rule 1.1 competence issue and not likely necessary to be reported. Lamprecht Fall 2005 Legal Profession 5. Rule 8.3(c) makes an exception for information that is protected by confidentiality of Rule 1.6. a. If you come by information that is protected by Rule 1.6, you are off the hook and do not have to report it. Lamprecht Fall 2005 Legal Profession Marketing Legal Services I. Scope A. Defining the Borders 1. There is a distinction between advertising and solicitation despite neither being defined by the Rules. a. Advertising – communication you direct to the population at large, offering legal services or letting know where available. i. Governed by Rule 7.1 and 7.2. b. Solicitation – addressed to specific person offering to represent them in a specific matter. i. Governed by Rule 7.3. B. Advertising 1. Advertising used to be in violation of the Model Rules, but Bates changed that. Bates v. Bar of Arizona: p. 801 Holding: Court held that advertising by lawyers was commercial speech entitled to First Amendment protection. 2. Bates was not limited to advertising and lawyers were freed to talk to the media. 3. Following Bates, the Bars moved into regulation of advertising. 4. The general rule is that if it is not deceptive the ad receives commercial protection. a. Bates said deceptive commercial speech is not entitled to protection, but non- deceptive is limited to some con protection. 5. Under Rule 7.1, lawyer shall not make false or misleading communications about the lawyer or lawyer’s services. a. Misleading – material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. b. Comment 3 states a lawyer if lawyer reports achievements, it may be misleading if presented to give reasonable person to form an unjustified expectation. i. Ex. I have 10 cases where $5M verdicts have been won. ii. May be able to disclaim and say “results may differ.” c. Unsubstantiated comparison may be misleading if lead reasonable person to conclude that the comparison can be substantiated Lamprecht Fall 2005 Legal Profession d. Ex. Best trial lawyer in Phila. Statement of fact (with subjective element). No way for consumer to verify the statement. It is example of misleading statement. 6. Under Rule 7.2(b), lawyer may not give anything of value to a person for recommending the lawyer’s services except a lawyer may: a. Pay costs of advertising b. Can refer clients to another professional under reciprocal agreement. Internet plans like a find a lawyer and like yellow pages, you can pay for cost of advertising. 7. Commercial speech can be regulated if: a. Regulation must serve Gov’t objective. b. Regulation must advance that objective c. Regulation cannot be more extensive than necessary to protect the gov’t purpose. Zauderer v. Office of Disciplinary Counsel: p. 811 Facts: Lawyer advertises willingness to represent women injured from use of Dalkon contraceptive. Ohio bar Rules forbid advertisement of a truthful commercial advertisement which deals with legal advice. Goes to US SC and Ohio says want to protect public from false legal advice. Holding: SC says because it is in writing, it can be monitored and there is no need for prophylactic rule. Q: How does Zauderer relate to electronic advertisements? A: LB thinks electronic information comes and goes so it should be easier to make argument it is should just be cut off. C. Solicitations 1. Solicitations refer to contact with a prospective client saying “employ me.” Ohralik v. Ohio Bar: p. 805 Facts: Ohio Bar says no solicitation. Ohralik says Ohio ban is unconstitutional. Holding: Court says the ban is not overreaching. A situation where lawyer has powers of persuasion is a legitimate concern. State can ban any in-person solicitation. Shapero v. Kentucky Bar Ass’n: p. 818 Facts: L wanted to send out letters to potential clients who had foreclosure action against them. Holding: SC says written communication (solicitation by letter) cannot be prohibitively banned. US SC says you may ban in person, but may not ban targeted mail. 2. Rule 7.3 followed the Ohralik and Shapero opinions. Lamprecht Fall 2005 Legal Profession 3. Rule 7.3(a) prohibits in-person, live telephone or chat room solicitation from a prospective client when lawyer’s motive is pecuniary gain unless: a. Person is a lawyer b. Person is a family member, close personal contact or prior professional contact. c. Note: No pecuniary gain if it is pro bono. d. Note: Rule 7.3(b) – is an exception to 7.3(a). Even if in exception for in-person, have to leave along if person requests so 4. The Rule 7.3 ban has assumed that pressures that exist in face-to-face also exist in electronic. 5. SC said state may ban in-person solicitation. State does not have to ban. One or two states permit in-person solicitation. 6. Rule 7.3(b) prohibits written, recorded or electronic communication solicitation if: a. Prospective client has made it known a desire not to be solicited. b. Solicitation involves coercion. 7. Under Rule 7.3(c), solicitations must include words “Advertising Materials.” Lamprecht Fall 2005 Legal Profession Other Issues I. Misc A. Defamation 1. Under tort law, there is a privilege in legal proceeding against defamation suit. 2. Problem is the scope must be relevant to the proceedings. What is clearly covered is lawyer making statement in court or in documents that would otherwise be defamatory. 3. Gray area: If you step outside court and documents, is lawyer covered a. Ex. Statements made with client or witnesses. Press communications are not protected – even it is complaint that is mailed to reporter. B. Free Speech Rights of Lawyer 1. Under Rule 3.6(a), “lawyer shall not make a statement outside of proceedings (do not talk to press) that lawyer knows or should know will be disseminated by public communication and will have likelihood of prejudicing adjudicatory proceeding. 2. Under Rule 3.6(c) can make statement to protect a client from the substantial undue influence. This is a huge loophole. C. Judicial Ethics 1. ABA has adopted rules of judicial ethics – they are in supplement 2. Code says judge should avoid issues that cause judge to appear lacking impartiality. 3. The test for judicial disqualification is in which judicial impartiality “might reasonably be questioned.