Legal Ethics Outline
Amarkarian
Where do "Ethics" rules come from?
· U.S. Constitution - 1st amendment - advertising and solicitation - 6th amendment - criminal defense rep. - (in)effective assistance of counsel - DPC - Privileges and Immunity Clause - residency requirements to take the bar exam in the state · CA Constitution - It’s more basic application is that our SC is the primary body that regulates lawyers. - State bar organization is tied in with the courts. · Federal and State cases (Governed by CL principles (case law)) · Legislation (State Bar Act) · Ethics Rules - 1908 ABA canons -. - 1970 ABA Model Code -> - 1983 ABA Model Rules · promulgated by a national legal association · 40 states have adopted ABA Model Rules - (Ethics 2000 recommending some changes) - CA Rules of Professional Conduct · Ethics Opinions · Restatement (Less important here than in K or Tort law) · Ethics Advice Sources (Ethics Hotline)
Consequences
· Purpose is to discipline the attorney and protect the public from professionals who don’t follow the rules. · Consequences for a lawyer who violate ethics rules: (1) Discipline (2) Disqualification (Lawyer taken off the case and client needs to find a new lawyer) (3) Lawyer held civilly liable for malpractice (damages) (4) Criminal cases - client’s conviction may be reversed (client can be retried)
Defining the Client Lawyer Relationship
· Perform services · Receive a fee · Represent client in court · Gives legal advice · Listen to the client's story · Talk to client and tell him that he has no case
What is necessary to create an A-C relationship?
· Having all of the above is crystal clear that you have an A-C relationship. · Giving confidential info to an attorney is enough to create an A-C relationship. If client approaches attorney with reasonable expectation that the information given is for purposes of representation, that communication is part of a-c privilege. Nature of discussion has to be related in some way to legal advice
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Legal Ethics Outline
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Togstad v. Vesely, Otto, Miller and Keefe - Attorney spoke to the client in a professional capacity and telling him that he doesn’t have a case is enough to create an A-C relationship. This was a malpractice case - P came to D and said that the doctors might have made a mistake during her husband’s surgery. Lawyer did not look at medical records before telling P that she didn’t have a medical malpractice case.
Elements of the client-lawyer relationship (A) Competent representation - M.R. 1.1 - A lawyer hall provide competent rep to a client.
Competent rep requires the legal knowledge, skill, thoroughness and preparation reasonable necessary for the representation. - You either have the skill OR educate yourself OR associate with a co-counsel OR refer the case out. - You CAN NOT take the skill w/o the necessary skill and not do any of the options stated above. This could lead to malpractice liability. CA rule 3-110 - Failing to Act Competently - more broad definition of ―competence‖
(B) Duty of Confidentiality:
(a) ethical duty - precludes the attorney from voluntarily revealing client info - in any setting - voluntary or involuntary (b) attorney-client privilege - prevents compelled disclosure in court - Cal. Evid. § 950 - 962.5 (c) attorney-work product M.R. 1.6 - “A lawyer shall not reveal info relating to the rep of a client unless... the client gives informed consent OR disclosure is impliedly authorized in order to carry out the rep or the disclosure is permitted." - focuses on duty not to disclose. - DR 4-101 (not good law except in NY) - Exceptions: · client consent · impliedly authorize (for instance if the client gives the authority to sue or to set up a transaction) · Part (b) exceptions are all permissive - ―may reveal‖: (1) prevent reasonably certain death or substantial bodily harm (2) future crime exception (3) prevent financial crimes (Enron / Worldcom) (4) prevent, mitigate or rectify financial crimes (5) ethics compliance (secure legal advice about A’s compliance with Rules) (this will encourage As to seek advice w/o fear of violating a confidentiality agreement) (6) establish a defense to a criminal charge or civil claim against the lawyer when the client was involved. (7) to comply with the law or a court order
Privileged v. Ethically Protected Info
· Privileged and Ethically Protected Information
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Legal Ethics Outline
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- Ethical rules define a category of information about a client that the lawyer may not ordinarily use or reveal except to benefit the client. - ethically protected information or "secrets" - The law of evidence protects communication b/w a lawyer and client by denying courts power to force the client or lawyer to reveal the communications. - privileged information or "confidences" · Information protected by law of evidence = privileged - sometimes it refers to info protected under ethic rules · Much info that is ethically protected will not be privileged b/c the source of the info was not the client or its agents. · All info considered privileged under the rules of evidence will also be ethically protected. Information in the smaller circle is privileged info and the bigger circle is the ethically protected information. - Ethical duty is broader than the evidentiary privilege. The ethical prohibition against voluntary use or disclosure generally continues even if persons other than the lawyer know of the information. - the privilege may be lost for any info the client gives the lawyer in the presence of a 3rd person Perez v. Kirk & Carrigan - accident with school bus into pond. P - truck driver hits a school bus. D gets statement from P. D tells P that they will represent him and the statement would be kept confidential but D ends up finding other representation for P and D represents the other party. D turned over the statement to the DA. · D breached the fiduciary duty to Perez either by wrongfully disclosing a privileged statement or by wrongfully representing that an unprivileged statement would be kept confidential. - it didn't matter that there was a 3rd party present. · Court held ―an agreement to form an attorney-client relationship may be implied from the conduct of the parties" and money need not change hands. - by D telling P that D is his lawyer and P gives confidential statement to D is enough to establish an A-C relationship. D couldn’t have turned over confidential information to the DA, but the DA could have subpoenaed the statement, but they didn’t. · Regardless of whether the statement was ethically protected or privileged, it was a breach of the duty of confidentiality. · Need to show damages. Rico v. Mitsubishi Motors Corp. - SUV rollover case. D moved to disqualify Ps’ attorneys and experts, based on attorney’s clandestine use of confidential and privileged defense document during depositions of defense experts. (inadvertent disclosure). D moved to disqualify b/c P did not inform D of the receipt of the confidential document. · Document was not protected by the attorney client privilege but it was confidential and privileged as attorney work product. - Since the document did not memorialize any attorney-client communication and the document was not transmitted b/w an attorney and his client. · Analysis of weaknesses of opposing counsel case could be protected by... - A/C privilege - if not... - Confidential info / ethically protected - if not... - Attorney work product
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Legal Ethics Outline
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· A-C privilege does not attach to a communication that has no connection to the client. And the document was not the instrument through which the client or the attorney transmitted confidential information. · The attorney’s work product privilege does not apply to an expert’s pretrial statement once that expert is designated as a witness at trial. · We have no case law about what if the information was not privileged or work product but if it was only confidential information, but Ogden believes it might not be as strong but it would still be protected. · A-C doesn’t protect disclosure of the underlying facts upon which the communications are based and it does not extend to independent witnesses or their discovery. · Unlike with the A-C privilege, there are no crime-fraud exceptions to the attorney work product.
California Evidence Code Sections on attorney-client privilege
§ 952 - Confidential Communication b/w Client and Lawyer - confidential info b/w a client and a lawyer which info is transmitted in the course of that relationship and in confidence by a means which is private. E.g. client comes into the attorney’s office - doors are closed, windows are closed attorney takes notes and gives him advice. Info is protected. - privilege not lost when kids are in the same room with client, or if paralegals are in the room with the attorney as long as the paralegal is going to use the info for the client. § 954 - Lawyer-Client Privilege - A holder of the privilege is the only one who can prevent from disclosing confidential information. Exceptions to A-C privilege - § 956 - Crime or Fraud - Applies when the client hires the attorney to assist them to commit or plan to commit a crime or fraud. - § 956.5 - future crime likely to result in death or substantial bodily harm. Lawyer version of the Tarasoff case. - § 958 - Breach of duty arising out of lawyer- client relationship. When a lawyer disclosed info relevant to a breach. - § 962 - joint clients - Clients have no privilege in information communicated in front of all the clients. · CA Business and Professional Code § 6068(e) -> Ethical duty of confidentiality - This incorporates the exception to the A-C privilege - future crimes that result in death or substantial bodily harm. · Proposed Rule 3-100 - Confidential Info of a Client [Rules of Prof. Conduct of the State Bar of CA] - Makes § 6068(e) an ethical rule.
Who is client for corporate A-C privilege? - Client Entity situation
We need to protect information from corporation AND we need to protect advice from attorney - Both the info and advice are protected Within the corporation which officers and directors are protected by the A- C privilege? There’s a split. (1) Narrow - least protective test - control group test - Only refers to corporate management - High level (e.g. CEO) - Focus on authority of the holder of the information
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Legal Ethics Outline 6th Circuit - held that the privilege did not apply to communications... by officers and agents not responsible for directing Upjohn’s actions in response to legal advice... the communications were not the clients.
Amarkarian Upjohn Co. v. United States Samaritan Foundation v. - there was communication Goodfarb - A nurse between a corporation’s paralegal summarized the employees and the corp.’s interviews in a memo and counsel. Information that submitted it to corporate was not available from upper counsel. D claims A-C management was needed to privilege / work product secure legal advice. The doctrine. Were the scrub communications concerned technicians carrying out matters within the scope of corporate duties or merely the employee’s corp duties, witnesses to what happened? and the employees were - If the employee is aware that they were being not the one whose conduct questioned in order for the gives rise to potential (2) Subject-matter test - federal test (Upjohn case) corp to obtain legal advice. corporate liability, then it is - This could apply to all employees whom corporate counsel communicated with so long - The control group fair to characterize the as the attorney is talking about a subject that relates to representing the corporation. test restricts the availability employee as a ―witness‖ - Broadest articulation of what is considered an attorney-client relationship. of the privilege to those rather than as a client. officers who play a - Holding - privilege (3) Middle ground (AZ, CA) (Good Samaritan case) substantial role in deciding exists when employee - Employee duty and liabilities v. employee witnesses and directing a corp’s legal initiates communication OR - What is covered under the Samaritan test: response. when someone other than · Employees seeking legal advice - Privilege only the employee initiates the · Vicarious liab. (corp. held liable if employee's acting w/i scope of employment) protects disclosure of communication, a factual · Admission by corporation (by a corporate agent) communications b/w communication by a - Under the Samaritan test - being an employee is not enough. attorney and employee; it corporate employee to · e.g. a mere passenger is not enough in a truck that got into an accident. does not protect disclosure corporate counsel is within · Nurses in this case who were helping with the operation were mere witnesses. of the underlying facts by the corporation’s privilege - The Samaritan test does NOT cover fee witnesses those who communicated if.. with the attorney. (1) it · People seeking discovery -> want narrow - control group test - Rejected the concerns the employee’s · Corporations -> want broad - subject matter test control group test - adopted own conduct within the a broad version of the scope of his employment (C) Agency: subject matter test - The AND · The law of agency applies to the client-lawyer relationship. by privilege communications (2) is made · In a principle-client relationship. The employees whoclient and the agent assist the lawyer in all principle is the speak at to is the lawyer. - The client is bound by the the direction thetheir decisions of of lawyer. assessing or responding to corporate superiors to the the legal consequences of Rule 1.2 - Scope of representation and allocation of authority b/w clientthat conduct-for the and lawyer corporation’s lawyer "A lawyer shall abide by the client’sregarding matter within the decisions concerning the objectives of representation (The ―ends‖ corporate client. (objectives) are the client’s responsibility) of their corporate AND he shall consult with the client as to the means by which scope they are to be pursued" (The ―means‖ (tactics / procedural) are the lawyer’s responsibility). duties in order to facilitate the formulation of legal · Actual v. implied authority - in a litigation setting advice for the corporation. - filing the lawsuit is actual authority. - and doing everything else to be able to file the lawsuit is implied authority (e.g. disclosing client’s confidences to file the lawsuit) · Civil litigation cases - Lawyer shall abide by a client’s decision to settle. · Criminal cases - Lawyer shall abide by a client’s decision: (a) as to a plea to be entered (b) whether to waive jury trial (c) whether the client will testify
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Legal Ethics Outline
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· Resist the temptation to make decisions for your clients, when the client keeps on telling you ―I’ll do whatever you think is best." Taylor v. Illinois - D’s attorney did not put a witness on a witness list, but then the attorney tried to call that witness during trial to testify, and the ct did not allow him to do so. The D himself was not a part of this tactic and argued his rights under 6th amend. Should the client be held responsible for his attorney’s actions? Is he bound by his attorney’s conduct? - Acting as an agent, an attorney binds the client; if the attorney makes a strategic decision (as he did here), which was conducted within the course of furthering the client’s goals and during the a-c relationship, that binds the client and there nothing the client can do about it; client chooses lawyer at his own peril. · How do we deal with lawyer mistakes or misconducts? Who is held responsible? - client is held responsible when the lawyer is acting as an agent for the client. - E.g. lawyer fails to prosecute a case, or misses the SOL, fails to draft the will. · General Principle - the client benefits from good lawyering and he gets screwed over for bad lawyering. · The client could sue the lawyer for malpractice. · CA has a small exception to the ―client is held responsible for the lawyer’s actions‖: - a default is taken against the client in litigation b/c the lawyer screwed up. - Cal. Civ. Pro. § 473 - minority rule Cotto v. United States - client has been victimized by conduct/blunders engaged in by agent/attorney; lawyer failed to prosecute (may have missed some dates); regardless of the validity of the claims, the only reason this client is not getting relief is b/c attorney failed to file papers, and so trial ct dismissed the case - Generally, the action of the attorney will bind the client in both civil and criminal cases; this concept is attributed to the adversary system. - But the lawyer can be held liable for malpractice.
(D) Fiduciary - Lawyer as fiduciary:
· Lawyers must place their client's interests above their own in the area of the representation and must treat their clients fairly. - The client starts to build trust and reliance towards the attorney. · Lawyers are discouraged to get involved in business transactions with clients. · Justifications: (1) Client will depend on an attorney’s integrity, fairness, superior knowledge, and judgment (2) The attorney may have acquired information about the client that gives the attorney an unfair advantage in dealings between them (3) The client will generally not be in a position where he is free to change attorneys but will rather be financially or psychology dependent on the attorney’s continued representation [all of these rationales go back to a relative imbalance between the a and c—a has the power, knowledge, experience, but the client is the one that has to live with the outcome of the case]
(E) Loyalty and Diligence:
(1) Loyalty - requires the lawyer to pursue, and be free to pursue, the client’s objectives unfettered by conflicting responsibilities or interests. (2) Diligence - requires the lawyer to pursue, and be free to pursue, the client’s objectives unfettered by conflicting responsibilities or interests.
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Legal Ethics Outline
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Rule 1.3 - Diligence - A lawyer shall act with reasonable diligence and promptness in representing a client. Comment 1 - lawyer is not bound to press for every advantage that might be realized for a client
(F) Duty to Inform and Advise (Duty to communicate):
· This includes the notions of informed consent and informed decisions. · You need to: - state the alternatives - state the pros and cons - help your client make a decision Rule 1.4 - Communication (1) Informed consent communication - any decision that the client is required to make. (2) Lawyer needs to consult with the client about the means by which the client’s objectives are to be accomplished (3) Keep client reasonably informed about the status of the matter (4)Promptly comply with reasonable requests for info (5) Let client know about limitations on the lawyer’s conduct (6) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation Nicholas v. Keller - P was injured on the job and hired D to pursue a workmen’s comp claim against P’s employer. D did not advise P that he might also have civil claims against 3rd parties. What is the attorney’s duty of care as far as advising in related matters? · The court held that the lawyer breached the duty of care by not advising the client about 3rd party tort claims. · although the attorney does not have to advise and caution the client on every possible alternative, there has to be some sort of possibility of adverse consequences—if there is a legally apparent issue even if it is outside the scope of the purpose that the client hired the attorney, the attorney has a duty at least to inform the client - There’s a limit in the scope of the duty. - Worker’s comp lawyers can always sue 3rd party tort feasors · Something like this is so closely linked to the lawsuit that the client needs to know. · Not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client’s objectives.
Autonomy of Attorneys and Clients
Lawyer's Autonomy: - The lawyer is not the mirror image of the client. MR 1.2a: a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued Civil v. Criminal: · Civil: the ultimate decision in a settlement is decided by client · Criminal: as to what plea to be entered; to waive a jury trial; and the decision that the client will testify, and be present at trial [tactical decisions, but client’s choice b/c it is the criminal D’s rights]
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Legal Ethics Outline
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Jones v. Barnes - (non-frivolous issues) - criminal appeal; D hires a lawyer and he looks at objections that occurred at the trial; attorneys try to get the ―real‖ issues rather than raise all the issues; here client wants him to raise certain issues, but the attorney has experience and disagrees. · The attorney is not obligated to include the client’s issues if it will hurt his chances of winning—duty of the attorney is to try to win · Frivolous issues - can’t be brought up on appeal. · Anders Brief - This deals with criminal appellant representation - Typically arises where there’s an indigent appeal - If you believe that the appeal is merit less, you have a duty to file the brief as long as the issues are non-frivolous. (???) · In this case, Jones did not file the Anders brief. · Do you have to file all meritorious issues or some merit? - SC held that a lawyer has the autonomy to choose which of the non-frivolous issues he will bring up on appeal. - filing too many issues will make your case look non-frivolous and bad. - This is a limitation on the agency relationship based on the attorney’s skill and judgment; this works toward the benefit of the client Client's Autonomy: Olfe v. Gordon - Client hires attorney to handle the sale of his real property, where the client expressly only allowed for one mortgage; the attorney did not follow the client’s instructions (he had a second mortgage rather than a first), and thus, the client says that the attorney owes him damages on the malpractice claim · The client autonomy in this case is that it set specific limits on the attorney’s authority. And the attorney becomes liable if he violates those limits. · The attorney as an agent owes a duty to the client as a principal - Violation of agent duty - the agent must act in conformity with his authority and instructions and is responsible to his principal if he violates this duty. · An attorney’s honest belief that the instructions are not in the best interest of his client is no defense to a suit for malpractice. Once the client makes a decision contrary to the attorney’s advice, client must live with it -> with autonomy comes responsibility.
Protecting the Client-Lawyer Relationship Against Outside Interference
Communicating With Another Lawyer’s Clients · A lawyer can always do this if the other lawyer consents. Rule 4.2 - Communication with Person Represented by Counsel (1) Client representation… (2) No communication about the subject of the rep… (3) With a person… (4) The lawyer knows… (5) To be represented by another lawyer in the matter… (6) UNLESS (exceptions): (a) Consent of the lawyer OR (b) Is authorized by law to do so OR (c) Court ordered
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Legal Ethics Outline
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What interests do these rules protect? The rule prevents a lawyer from: (1) Getting a damaging admission from the opposing client (2) Learning a fact that she would not learn if counsel were present to protect the opposing client. Civil Matters: Niesig v Team I - P is an employee of construction company who fell off scaffolding and injured himself while on the job. P brings suit against the company, and his attorney wants to question all of the company employees who witnessed the accident. Are the employees of the corporate party also considered ―parties‖ under the disciplinary rule, which prohibits a lawyer from communicating with a ―party‖ known to have counsel in the party? · Forbids contact with a party; “party” includes corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel; can talk to former employee - Broader than the control group test and narrower than the Upjohn test. - CA rule similar to the Good Samaritan test CA Rule 2-100 - Communication with a Represented Party - A ―party includes‖: · An officer, director, or managing agent of a corporation as association, and a partner or managing agent of a partnership OR · An association member, or an employee of an association, corp or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. This rule does not prohibit communications… with a public officer, board, body or committee initiated by a party seeking advice or representation from an independent lawyer of the party’s choice otherwise authorized by law. CA case dealing w/ Rule 2-100: Snider v. Superior Court - business tort case - whether the lawyer representing defendant’s corp. needs to be disqualified b/c the attorney had communications with P’s corp. · TC - disqualified the attorney / C of A - reversed · The lawyer didn’t know that these employees were represented by counsel. · The employees were not represented parties within the scope of the rule, b/c their acts could not bind the corporation. Criminal Matters: United States v Hammad - Fed prosecutor arranged to have informant contact the D and they issued a sham subpoena, which created a pretense to provoke the D to confess. D already had an attorney at that time. · Fed prosecutors are allowed to use agents, but they can't to do it directly. · Prosecutors are not allowed to lie such as if you tell us now, we will not get you in trouble; prosecutor herself cannot engage in dishonest activity, only cops can. · Is there an exception for law enforcement in settings where there are career criminal that have retained counsel at all times?
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Legal Ethics Outline
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· The court recognized an exception to rule 4.2 (you know they have counsel you can’t talk to them) and it’s the ―authorized by law‖ exception: (a) ―Authorized by law‖ includes legitimate governmental investigations by police, FBI, government agencies UNLESS there is misconduct by the prosecutor. - In this case, the prosecutor used a fake subpoena and the prosecution violated the disciplinary rule and the exception no longer applies. (b) This only applies in circumstances where the guy is a career criminal and has a retained counsel on hand. Generally, when you violate an ethical rule, exclusion is not a remedy; If there is a const violation, there is a suppression of evidence
Improper Acquisition of Confidential Information
· If a lawyer learns confidential information from an expert previously interviewed by the opposing side, the lawyer and his or her firm may be disqualified. · ABA - lawyer who mistakenly receives an opponent’s confidential info should not examine it but should instead request the opponent’s instructions.
Financing Legal Services (and Dividing the Money)
· Legal fees (paying for lawyer services) · Salary (Most public lawyers) · Flat fee · Approved fees (Flat fee OR a certain % of award) · Contingency fees (Common in tort litigation) (CA - need a written fee agreement) · Hourly fees (Creates billable hours) - CA - if compensation exceeds $1000, you need a written fee agreement. If you don’t have a WFA then you can only recover in restitution · Value billing (Bonuses) - (attorney saves client liability or makes a lot of money for the client
Attorney's Fees - 3 different rules
The rules set a minimum standard or a floor as to how to practice rather than a standard for practice. (1) ABA - M.R. 1.5(a) - Standard - “Reasonable fee” Factors for determining fees: (a) Time and labor required the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (b) Likelihood that the acceptance of the employment will preclude other employment by the A. (c) Fee customarily charged in the locality for similar legal services (market base factor). (d) Amount involved and the results obtained (e) Time limitation imposed by the client (f) Nature and length of the professional relationship with the client (g) Experience, reputation, and ability of the lawyer (h) Whether the fee is fixed or contingent (i) We will tolerate a much larger fee if it’s contingent b/c of the risk of non-payment. (2) CA - RPC 4-200 - Standard - “Unconscionable (illegal) fee” CA specific factors that are NOT in the ABA Model rules: (a) The amount of the fee in proportion to the value of the services performed (b) The relative sophistication of the member and the client E.g. Bill Gates represented by John Doe law offices E.g. Kirkland Ellis representing John Doe
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Legal Ethics Outline (c) The informed consent of the client to the fee (3) ABA - D.R. 2-106(a) - Standard - “Clearly excessive fee"
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Fee Contract requirements in CA - Bus. & Prof. Code § 6148
Part (a) - If the attorney fees exceed $1000 the K needs to be in writing and it needs to contain: (i) Any basis of compensation, including, but not limited to, hourly rates, statutory fees or flat fees, and other standard rates, fees and charges applicable to the case. (ii) The general nature of the legal services to be provided to the client (iii) The respective responsibilities of the attorney to the client as to the performance of the K. Part (b) - all bills to client shall state the basis thereof. Part (c) - what happens when an attorney fails to comply with any provision of this section.
Fees in writing
M.R. 1.5(b) - the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee shall also be communicated to the client. A fee agreement is non enforceable if it doesn’t meet the requirements of the law. But the attorney can recover in quantum meruit. - Most CA courts look to the Lodestar test to see what a reasonable quantum meruit fee is. - This includes Bus. & Prof. Code § 6147.
Rules Governing Legal Ethics Can Be Seen in…
(1) Discipline: Matter of Laurencce S. Fordham - D arrested for drinking and driving; father is a repairman for alarms and during a house call he found an attorney for his son. Fordham said from beginning that he never tried a DUI case and that he was a civil lawyer; he was hired anyway, and he got the son off on a novel theory (having to do with breathalyzer). - Clearly excessive fee - Discipline of the attorney was a public reprimand - $50,000 fee to represent a client that another lawyer would have charged $15,000 for the same result -> disproportional fee compared to its result - Here we have an unsophisticated client and the lawyer should have said that it’s going to cost you a lot of money for me to learn this branch of law. - A different result would occur if the client knows what he's getting himself into and he knows that this attorney has some skill that others don't have. - Client should not be expected to pay for the education of a lawyer when he spends excessive amounts of time on tasks, which, with reasonable experience, become matters of routine. - Court held attorney has to pay money back. Matter of Cooperman - Issue of payment of a non-refundable fee for specific services irrespective of whether any professional services are actually rendered. Bar got concerned with non-refundable fee agreements. NY Bar thought these agreements were unethical b/c the clients had a right to fire the lawyer. - Holding - agreements were per se violative of public policy
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Legal Ethics Outline
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- Basic Idea client can fire the lawyer for any reason or no reason. - This is not as true if the client is represented by a public attorney or a legal aid attorney. - Many courts will allow the lawyer to recover in quantum meruit. - In this jurisdiction, non-refundable fee agreements are unethical BUT this doesn’t mean that non-refundable agreements in all settings are unethical. Attorneys who charge non-refundable retainer agreements and its ok: Criminal defense lawyers - charged $35,000 non-refundable retainer fee and in exchange the lawyer provides all the services required. Corporate outside counsel - client paid $100,000 and the lawyer made that client his priority In all other settings if you charge a retainer it’s ethically appropriate to charge against it. (2) Fee Disputes: Brobeck, Phleger & Harrison v. Telex Corp. - Telex sues IBM; Telex is concerned so they do not go bankrupt, so they hire Lasky (the top in his field) to help them appeal to SC; Telex wanted it on contingency basis; Lasky writes a great petition for cert., and it looks like there is a good chance that the SC will take the case. IBM starts to get nervous, just before the decision of whether SC will take the case, they settle rather then to get a decision from SC; Telex says that they do not want to pay the $1 million contingency fee. - $1 million fee was upheld b/c it was not unconscionable there were sophisticated parties (not in hindsight, but as it existed at the time). - Telex’s is not a naive individual, this is a corporation and it understands legal business; they cannot avoid the fee just b/c in hindsight they think the attorney does not deserve it. Court not willing to save Telex from its own business judgment—Telex received substantial value from Brobeck’s services - The court upheld the min. $1 million contingency fee agreement. - The claim was for $256 million claim and there was a $18.5 million counterclaim. Brobeck saved Telex the $18.5 million CC. - No risk of an adverse judgment from the SC - Brobeck saved Telex from this. (3) Fee Awards: City of Burlington v. Dague
Contingent Fees
·Fee is dependent/contingent on the outcome of the case (whether the client wins or loses and to what extent the client wins or loses) MR 1.5(c): contingent fee shall be in writing and shall state the method by which the fee is to be determined CA generally contingent fees must be in writing. Exception is §6147.5: contingency recovery of claims between merchants does not have to be in writing; however, there are limitations on how much the attorney can get. Model Rules do not allow contingency fees in criminal and domestic relations cases. Fee Ceilings: · Fee ceilings are limitations on how high an attorney can charge · Model Rules do not have fee ceiling requirement: this suggests that there may be an advantage to attorneys unless the fee is independently unreasonable and unconscionable. · CA §6146: there is a fee ceiling requirement for representing any person seeking damages in connection with an action for injury or damage against a health care provider based on alleged professional negligence.
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Legal Ethics Outline
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Minimum Fee Schedules: · Minimum fee schedules say that attorney cannot charge below a certain rate Goldfarb v Virginia State Bar - P wanted to buy a house, and the financing agency said that they needed member of VA bar to perform title search for title insurance. They contacted 37 lawyers who would not charge less than the rate fixed by the minimum fee schedule; legal argument was that this fee scheduling was a violation of the antitrust act. - State bars can set regulatory standards, but here it was about pure price fixing. - Lawyers are free to charge a market based fee. - Court held: · There was price fixing · Attorneys are not exempt as a learned profession. · There is no exemption even if they're acts are considered state action (it is not enough that
anticompetitive conduct is prompted by state action, it must be compelled by direction of state acting as sovereign)
- There was price-fixing here and the client was vulnerable (Court had disgust for the bar).
Antitrust and Legal Ethics
· Now, not only may lawyers undersell the competition, they can announce their lower fees to the entire community as long as they do not mislead. · Bates v. State Bar of Arizona - SC rejected the claim that Arizona's prohibition on legal advertising violated the Sherman Act. "The challenged restraint is the affirmative command of the AZ SC… That court is the ultimate body wielding the State's power over the practice of law and, thus, the restraint is 'compelled by direction of the State acting as a sovereign.'"
Court-Awarded Fees
(1) Determination of Amount: City of Riverside v. Rivera - D charged police of acting unconstitutionally in breaking up a party. Court sharply divided over an award of nearly $750,000 in attorney's fees to 2 lawyers who had recovered just $33,000 for their clients, only $13,300 of which was for the federal civil rights claim that justified fee shifting. - $245,000 attorney fee award and only $33,000 damages - SC had to decide to what extent the proportionality principle applies in out cases. - Proportionality principle - Rule 4-200(b)(1) "amount of the fee in proportion to the value of the services performed" - PP is tied to our contingency fee system b/c that's where the attorney's fee is paid from. - Smaller damage award = smaller attorney's fee and vice versa · Does the proportionality principle have any relation to Section 1988? - $33,000 damages - at most the contingency fee could have been 1/3 of that - The lower court awarded the attorney $245,000. SC had to see if the award should be rejected? YES b/c it has no application here since civil rights fee awards are designed to encourage the filing of civil right lawsuits. · Another issue - Is the lodestar merely the minimum fee you get or the maximum? - If it's the minimum, then some said we could increase the fee in certain circumstances. This is called the contingency enhancement and the Hague case said no contingency enhancement. City of Burlington v. Dague - Were the attorneys entitled to the Lodestar amount approx. $200,000 or were they entitled to a bonus (contingency enhancement - a bonus for good result)? Suggestion that in addition to lodestar their should be an enhancement of the award based on risk of loss; so long shot cases would get the typical fee plus an additional amount b/c he took case with a huge risk of loss - When you do really good work - the court said it can be recognized in 1 of 2 ways: (1) The attorney will be compensated for working longer hours (Lodestar). (2) Attorney can charge a higher hourly rate if they do really good work.
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- Court rejects this risk of loss factor and supports straightforward lodestar test b/c: (i) It would require too much ct inquiry into every case; risk is too arbitrary (lodestar is too much of a burden and already too arbitrary). (ii) The risk of loss is sometimes assumed in the time spent on the case factor in the lodestar test.
Lodestar Test
Reasonable Hours * Reasonable Rate
Reasonable Hours · Time and labor required · Novelty and difficulty · Skill required · Amount involved and results obtained · Time limitations Reasonable Rate · Novelty and difficulty · Skill required · Preclusion of other employment · Customary fee · Amount involved and results obtained · Lawyer-Client Relationship · Lawyer's experience, reputation, and ability · Fixed or contingent
California Unique Factors · Amount of Fee in proportion to value of services performed · Relative sophistication of lawyer and client · Informed consent of client to fee
· No contingency enhancements or increased to the lodestar amount. · Proportionality principle rejected · Expert testimony can tell the Court what is considered "reasonable hours" for that result or case. - Reasonable rate is the hourly billing rate, but possible difference in rate if charging public entities or private clients. (Ogden charges more if private client than a public entity)
Attorneys Fees - Statutory Exception
· Federal statutes - Civil Rights laws (§ 1983 and § 1988), antitrust and securities laws authorize awards of attorneys fees to prevailing parties in private civil litigation. · CA statutes - Both are designed to encourage private civil litigation to enforce the statutory provisions. - Awarding A fees designed to make it easier for litigants to find As to represent them. - ∏ recovers A fees if they "substantially" prevail; ∆ doesn't recover unless ∏'s lawsuit was frivolous, or lacking in merit. (difference based on a preference for filing lawsuits not defending those lawsuits)
Attorneys Fees - Measurement Issues
· Under Civil Rights laws, § 1983 and § 1988: - The standard fee approach recognized in these cases is the lodestar method - objective standard - § 1988 allowed attorneys to collect fee award claims. · Lodestar allows consideration of all of the ethical factors recognized in M.R. 1.5 and CA Rule 4-200. · City of Riverside v. Rivera - the requested attorney has to submit affidavits supporting the requested fees, and the opposing party has the opportunity to challenge the request and the submissions.
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Settlement Conditioned on Fee Waiver
Evans v Jeff D. - Whether in a class action civil suit D’s attorney could present P’s side with all the injunctive relief that they wanted in a settlement, but only if P waives the right to fee shifting (all injunctive relief for attorneys fees). - § 1983 case - Whether settlement conditioned on a fee waiver is valid. - Legal aid A - most legal aid lawyers couldn't do normal contingency fee cases prior to § 1988. - The problem with the Evans case is that this was an injunction case. The settlement of the case was going to require the State to pay a lot of money in the future for future budget appropriations. - The issue for D was… if we settle the lawsuit than the legislature will increase the taxes but D has to offer some amount for fees and D didn't want to do that. - E.g. civil rights action case with $100,000 damages. D wants to settle the case and makes an offer that covers P's damages and the fee award. P & P's lawyer will decide how much goes to whom. - The settlement offered by the State of Idaho was as good as P would have gotten if P had won the case at trial. The fee waiver was part of the settlement agreement. - SC holding: · That there is no ethical conflict of accepting a fee waiver when the client gets everything they asked for if they had gone to trial. · SC said fee waivers are consistent with § 1988 and they are consistent with the rules of legal ethics. The Bar reacted to that negatively.
- Big picture is that if you do not permit waiver of fees, D will be less willing to settle b/c he will not have leverage of having incentive to give injunctive relief
Conflict of Interest
· Conflict of Interest focuses on the duty of loyalty to the client, which has to do with the IPJ. · Lawyer has to provide INDEPENDENT, PROFESSIONAL JUDGMENT [IPJ] on behalf of the client. · Conflict can occur when: (1) Lawyer's own interest or lawyer's financial interest (2) Other clients of the lawyer are involved · Lawyers who violate conflict rules could lead to the 3 D's: (civil or criminal cases) - Discipline - Disqualification - Damages - civil liability · Some conflicts are clear cut: Lawyer can't sue a client. · Lawyer has to put client's interest first. Focus has to be as to what is best for the client. This is part of: - The Rule of Ethics - Agency law - Fiduciary duty What is the type of interests that might be the bases for conflicts? Rest. § 121 lays out 4 types of interests: (1) Lawyer's own interests - Financial interest that is adverse to the client (2) Duty to another current client (3) Duty to a former client - Confidentiality laws continue - AC privilege doesn't end when the relationship ends. (4) Interests of 3rd person - Relative or family member of the lawyer - Fee payor interests
SUBSTANTIAL RISK / MATERIAL ADVERSE AFFECT TRIGGERS CONFLICT OF INTEREST DUTIES OF AN ATTORNEY:
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(A) Concurrent Conflicts (current clients) - most common - Conflicts that a lawyer has related to the representation of current clients. - Concurrent conflicts need not be b/w or among current clients. - Lawyers can represent more than one P or D as long as the rules of conflict are satisfied. (B) Successive Client Conflicts (former clients) - first client v. current client - These are duties owed to former clients - these duties may limit the lawyer's ability to accept work for a new client. (C) Imputed Conflicts (affiliated lawyers) - Most conflict of interest purposes, a lawyer and law firm are treated as the same person when it comes to conflict rules. (D) Gov't Lawyer Conflicts (E) Advocate Witness - Lawyer are required to be a witness sometimes and the rule says that you can't represent the client you're going to be a witness for. (F) Lawyer for Entities
(A) CONCURRENT CONFLICT OF INTEREST - (CURRENT CLIENTS)
M.R.1.7 - Conflict of Interest: Current Clients - Lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: - The rep of one client will be directly adverse to another client (direct adversity) - There is a significant risk that the rep of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (significant risk - material limitation) - Exceptions (all 4 need to be satisfied): (a) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent rep to each affected client (b) Rep is not prohibited by law (c) Rep does not involve the assertion of a claim by one client another client represented by the lawyer in the same litigation or other proceeding before a tribunal (d) Informed written consent
Client's in the "same matter" · Same transaction (incorporating a business with 3 business partners/ restructuring a business) · Same lawsuit (attorney representing 3 co-Ps or Ds) "Potential" v. "Actual" Conflicts · Potential conflicts are inherent when you represent more than one person in the matter (lower threshold)
- E.g. when lawyer represents more than one client in a transaction · Actual conflicts are those that involve disputes that have already occurred. - Clients may waive these conflicts in some situations. - E.g. lawyer representing manager, investor and owner - lawyer has to tell the people above that if there's ever a conflict b/w any of you the A-C privilege will not preclude the attorney from saying anything.
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· CA law - If the conflict is directly adverse it's not waivable (A representing P and D), but if it's not then
it is waivable (A representing P1 and P2). E.g. Litigation setting - A representing D1 and D2 only a potential conflict, but when D1 points the figure at D2 than there is an actual conflict.
Client-Lawyer Conflicts
M.R. 1.8 - Conflict of Interest: Current Clients: Specific Rules:
(a) (business. transactions)- WAIVABLE - A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) Fair and reasonable terms communicated to the client (2) Conveyed in writing (3) Right to have independent counsel - attorney has to advise the client of this in writing (4) Opportunity to seek independent counsel (5) Client gives informed consent, in a writing signed by the client, to the essential terms and the lawyer's role in the transaction. · Once you have the lawyer client relationship, the client may be blind-sighted in a business transaction with a client b/c the client still thinks that the lawyer has his best interest. Matter of Neville - A and C had a former a-c relationship; they became involved in a business transaction and the attorney drafts a K that also involves a 3rd party. - Whether or not the transaction is part of the representation the client is expecting A to represent him. - There's a fiduciary duty that the attorney owes to the client and this duty continues to exist as long as the influence from the A-C relationship continues to exist. - There was no intention from A that he would hurt client, but that's not a defense here. - Attorney was disciplined for entering into business relationship with client in violation of ethics rule governing business relationships with clients. - A didn't fully disclose to his client the list of MR 1.8 M.R. 1.8 - The rule's prerequisites apply whenever a lawyer's "knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client. · The scope of fiduciary duties owed by the attorney to the client includes but is not limited to the transactions in which the lawyer is acting as counsel, and has adverse interest, and includes any setting in which the client can reasonably expect the lawyer to act as a fiduciary and provide IPJ on behalf of the client. · Not only that lawyer make proper disclosure of non-representation, but that he must also disclose every circumstance and fact which the client should know to make an intelligent decision concerning the wisdom of entering the agreement. The rule is strict. CA Rule 3-300: A lawyer shall not enter into a business transaction with a client unless: - Fair and reasonably…and - The client is advised in writing that the client MAY seek the advise of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice - Consent in writing
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Pass ante v. McWilliams - lawyer accepted 3% of a client's company's stocks in exchange for helping the company raise funds at a difficult time. And 3% became $33 million. Court held lawyer had violated his ethical duties b/c he didn't comply with CA's equivalent Rule 1.8. Day v. Rosenthal - CA case that is most extreme - breach of fiduciary duty claim against attorney entered into numerous business transactions with clients, and defrauded clients out of substantial sums of money. (b) (adverse use / client confidential info)- WAIVABLE - A lawyer shall not use info relating to rep of a client to the disadvantage of the client unless the client gives informed consent. (c) (estate planning attorneys/ gifts from client)- NOT WAIVABLE - A lawyer shall not solicit any substantial gift from a client or prepare an instrument giving the lawyer any substantial gift. (d) (media/literary rights) - NOT WAIVABLE - A lawyer shall not make or negotiate an agmt giving the lawyer literary or media rights to a portrayal or account based in substantial part on info relating to rep. Maxwell v. Superior Court - (1.8(d) used in CA) - A criminal D has a DP right to promise counsel the media rights to his story if the D knowingly waives the consequent potential conflict. The "mere possibility of a conflict does not warrant pretrial removal of competent counsel in a criminal case over D's informed objection." (e) (financial assistance to client)- A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) (3rd person fee payments) - WAIVABLE - A lawyer shall not accept compensation from someone other than a client, unless: (1) The client gives informed consent (2) There is no interference with the lawyer's independence of professional judgment or with the A-C relationship; AND (3) Info relating to rep of a client is protected (under Rule 1.6) (g) (aggregate settlement)- A lawyer who represents 2 or more clients shall not participate in making an aggregate settlement of the claims in a civil or criminal case unless: (1) Client gives written informed consent The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) (limit lawyer's liability to court) - lawyer shall not: (1) make an agmt prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agmt OR (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. (i) (financial interest in lawsuit) - A lawyer shall not acquire a proprietary interest in the cause of action or subject mater of litigation the lawyer is conducting for a client, except that the lawyer may:
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(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; AND (2) K with a client for a reasonable contingent fee in a civil case Gellman v. Hilal - 2 lawyers married - both are medical malpractice lawyers. H represented P and W had represented D in another malpractice action whose subject was the same medical procedure challenged in the current action. - Whether we can recognize imputed disqualification: H and W did not get consent for this type of rep. If W had represented D in this case, then H and W would have to get consent from both clients b/c H and W relationship created conflict. Here, H did not get client's consent and D came to disqualify H. Courts have to weigh the interests and see whether or not to disqualify. There is no per se rule that disqualifies husband and wife. - Whether absent consent should the attorney be disqualified and the court said no. If there is disqualification of A b/c of related lawyers and significant others, it is NOT imputed to the firm If D's theory had gone forward the wife should have gotten consent "A lawyer related to another from her client. Even though her relationship had terminated, the lawyer shall not represent in ethical duties still continue. In this case, the doctors were imputing the any matter a client whose wife's duty to consent to the husband. interests differ from those of another party to the matter 2 levels of analysis: who the lawyer knows is - W's duty to the doctors (defendants) represented by the other - W's duty imputed to H to get consent. lawyer unless: - The client consents CA Rule §3-320: Relationship with other party’s lawyer - A member to the rep after full shall not represent a client in a matter in which another party’s lawyer disclosure AND is a spouse, parent, child, or sibling of the member, lives with the - The lawyer member, is a client of the member, or has an intimate personal relationship with the member, unless the concludes that the lawyer member informs the client thewriting of the relationship. can adequately represent in - of the client. interestsDoes NOT apply when the lawyer is merely a partner or associate in the same law firm as the adverse party’s counsel, and who has no direct involvement in the matter People v. Jackson - defense lawyer and prosecutor were dating for 8 months before the start of the trial and continued dating during the trial. Neither D nor the judge was informed. The court held that D had been denied EAC under the state constitution. - CA Opinion stated that public defender and a prosecutor who were married to each other could appear on opposite sides of the same case if they made full disclosure, including disclosure of the danger of the representation. (j) (sex w/ clients) - A lawyer shall not have sexual relation with a client unless a consensual sexual relationship existed b/w them when the A-C relationship commenced. (k) (imputed disqualification of law firms) - While lawyers are associated in a firm, a prohibition in the foregoing paragraphs that applies to any one of them shall apply to all of them.
Client-Client Conflicts
Criminal Cases (Defense Lawyers) Criminal defense - 6th amendment cases - the right to effective counsel. There are 2 conflicting principles here:
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The courts get involved b/c it has to do with the 6th. And the judge has to decide either prospectively or retrospectively how to balance these 2 conflicting principles and when do we know that this has caused a conflict of interest. Cuyler v. Sullivan - 3 D's charged with murder. 2 high class criminal attorneys were representing them. D was convicted and his co-Ds were not and he raised the 6th. The court resolved a couple of issues: (1) What types of conflicts violate the 6th? Court set forth a 2 part test: (a) Need to show an actual conflict of interest (potential conflict is not enough) AND (b) The actual conflict of interest had an adverse effect on the lawyer's performance (2) Whether the judge had a duty to inquire in the absence of an objection? - There is no duty to inquire, at least under the 6th, where there is multiple rep unless the client or lawyer objects to the multiple rep. - FRCPro 44(c) - federal DCs "shall promptly inquire with respect to… joint representation and shall personally advise each D of his right to the effective assistance of counsel, including separate representation." Strickland v. Washington - gives us the general test for determining ineffective assistance of counsel - Test : Whether counsel's performance "was reasonable considering all the circumstances." If not, D must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Holloway v. Arkansas - Holloway Error - Holloway case dealt with a public defender that was representing 3 Ds in the same trial. The lawyer repeatedly requested separate counsel, citing conflicts of interest, but the trial judge refused to consider the request. SC held that the TC's failure to investigate the alleged conflicts required reversal w/o any need to demonstrate prejudice. - Cuyler said that in cases where there is no objection to multiple rep conviction it won't be overturned under 6th grounds unless the 2 things are met, BUT Holloway extended this to impose a duty of inquiry on the trial judge when he "reasonably should know that a particular conflict exists, even if none is called to his attention." Mickens v. Taylor - successive conflict - D was represented by a lawyer who until a week before his appointment as D's counsel had been representing the alleged victim of D's homicide on an unrelated criminal matter. - No automatic reversal b/c this was unlike Holloway where counsel protested his inability simultaneously to represent multiple Ds
Forced disqualification of defense counsel:
Wheat v. United States - Gov't makes a motion to disqualify P's attorney. But Wheat asserts his 6th amend right, saying he has a choice of counsel, and that he waived his conflict and that he will get the co-Ds to also waive the conflict. - Issue - the extent to which a criminal D's right under the 6th to his chosen attorney is qualified by the fact that the attorney has represented other Ds charged in the same criminal conspiracy. DC's refusal to permit the substitution of counsel in this case was within its discretion and did not violate P's 6th rights. DC must recognize a presumption in favor of P's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.
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- The right to counsel of choice can't trump the right to conflict free rep in all cases. - Ct. said judge doesn't have to accept a waiver. Judge can deny counsel of choice if it comes in conflict with the right to conflict free rep. - The TC may in the exercise of its discretion disallow the counsel of choice to defendant if there is a possibility of a conflict of interest; there does not have to be an actual conflict · The substitution of counsel had to be agreed upon by the client but you also had to get court approval. · The objection of the substitution was based on conflict of interest grounds. · Pre-trial orders disqualifying criminal defense counsel are not subject to immediate appeal. If defense counsel is disqualified and review is not available, D will have to proceed with another lawyer. Criminal Cases (Prosecutors) · Prosecutors are public officials. Need to put the public interest first - duty to make sure justice is done. · Prosecutors have a duty to disclose exculpatory evidence to defense counsel. · Private attorneys appointed to prosecute a criminal contempt action represent the US, not the party that is the beneficiary of the court order allegedly violated… The prosecutor is appointed solely to pursue the public interest in vindication of the court's authority.
· Conflict of interest could arise when there is: (1) Private party interest (2) Government interest Young v. United States ex rel. Vuitton et Fils S.A. - D violated settlement, so the district ct appointed P’s counsel as special prosecutor to prosecute a contempt charge. - Federal prosecutors are not permitted to represent the US in matters in which they, their family, or associates haves interests - They can't put private interests ahead of their public interests. People v. Clancy (CA case) - City trying to get rid of adult book stores using nuisance law. City retained D, a private lawyer, to bring civil abatement proceedings. His fee was $60 if he was successful and $30 if he was not in closing the book store. - SC disqualified D b/c "heightened ethical requirements" are followed that bind gov’t lawyers despite a claim that D was wan independent contractor. The arrangement was anti-ethical to the standard of neutrality. Civil Cases · Civil client conflicts - conflicts can arise in the same case e.g. 3 P's and P1 wants to go against P2. · Civil conflicts involve issues that A can't make arguments about b/c they have loyalty issues to other Ps. Fiandaca v. Cunningham - NHLA was representing 2 classes with directly adverse interests - one group wanting a correction facility for female inmates on the grounds of LSS and another group not wanting it. - Direct adversity wasn't there until settlement offer was made. - Attorney's loyalty to class #2 meant that A couldn't support the class #1 with the settlement offer - Court disqualified A so that NHLA can't represent the female inmate class. - B/c of direct adversity A's IPJ is highly compromised. · This type of conflict is NOT waivable. Imputed Conflicts:
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- Lawyers are affiliated for imputation purposes if they work in the same office, regardless of their title. (So if the lawyer is disqualified -> the whole firm is disqualified) People v. Speedee Oil Change Systems - CA Rule - broad - includes not only partners and associates, but also those with titles like "senior" or "special" counsel are all deemed part of the same firm for conflicts purpose. Malpractice Liability: 3 theories of lawyer malpractice: (1) Breach of fiduciary duty (duty of loyalty) - Case law theory (2) Professional negligence (3) Breach of contract Simpson v. James - transactional case - Malpractice suit was brought by the sellers of corporate assets against the partners of a law firm that represented both buyers and sellers in the transaction. Before the client's, A was representing, goes into bankruptcy there is only a potential conflict. But there's actual conflict when D is restructuring the note and tells the seller "we would have to support you." - What A did here could protect the seller's interest and is not detrimental to the buyers on the outset: got personal guarantees, provided a lien on the stock -> these were securities for the sellers. - CA law - James couldn't represent either the buyer or the seller when he finds out that there's direct adversity b/c James could use the confidences from one client to the benefit of his current client Was there an A-C relationship? YES - through the parties' conduct b/w D and P. D assured P that he would stand by her and D gave assurances re: the restructuring of the note. Was D negligent? Evidence in support of D is a lot stronger than Oliver (A, who was representing the clients before). · This conflict can NOT be waived. · Anything you say to a client (or potential client) in writing. · Some argue that you should never multiple clients, but so long as A has disclosed the risks the benefits usually outweigh the risks. Consent and Waiver: · CA Rule - allows clients to consent to any conflict (except direct adversity), and it must be in writing. · Not only must the client consent to the conflict after consultation, but the lawyer must make an independent judgment that the conflict will not adversely affect the client. The Insurance Triangle - Price of insurance has to do with coverage and indemnity limit. - Coverage - Does it cover certain risks? The risks are associated with what the insurance will cover. - Indemnity - insurer will pay for claims made to a certain amount - The insured gets separate counsel just in case of conflict of interest. Public Service Mutual Insurance Co. v. Goldfarb - Does a policy of professional liability insurance issued by a P afford coverage to a dentist in a civil suit who is being sued for sexual abuse? P is seeking a declaratory judgment. The court held that there was coverage. Most of the claims asserted by P would be outside of the coverage there would be conflict of interest, so D needed separate counsel. Once D has to defend, P is only entitled to the maximum coverage amount for the covered claims. P would also pay for D's separate counsel. - In the declaratory relief action, P doesn't have to pay for D's separate counsel.
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- Separate counsel is only necessary where the defense attorney's duty to the insured would require that he defeat liability on any ground and his duty to the insurer would require that he defeat liability only upon grounds which would render the insurer liable. - When such a conflict is apparent, the insured must be free to choose his own counsel whose reasonable fee is to be paid by the insurer. - Underlying P, the former patient, has to shape her claim keeping the insurance issue in mind. Cal. Civ. Code § 2860: (a) If there is a duty to provide independent counsel to the insured, the insurer shall provide independent counsel to represent the insured unless, at the time the insured is informed that a possible conflict may arise or does exist, the insured expressly waives, in writing, the right to independent counsel. - Insurance K may contain a provision which sets forth the method of selecting that counsel (b) Defines conflict of interest: no conflict of interest if there are allegations or facts in the litigation for which the insurer denies coverage; when an insurer reserves it rights on a given issue and the outcome of that coverage can be controlled by counsel first retained by the insurer for the defense of the claim, a conflict of interest may exist. - No conflict of interest shall be deemed to exist as to allegations of punitive damages or be deemed to exist solely b/c an insured is sued for an amount in excess of the insurance policy limits. (This sentence discusses potential conflict) (c) Lays out the requirements that independent counsel must have to represent insured. (d) Deals with confidentiality and A-C privilege. (e) Allows the insured to waive his right to independent counsel. (f) Cooperation duty b/w the independent counsel and counsel provided by the insurer.
The Advocate-Witness Rule
M.R. 3.7 - Lawyer as witness: (This conflict is NOT waivable) (a) Lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; OR (3) Disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or 1.9. (No imputed disqualification rule) Policies Behind the Advocate Witness Rule: (1) Jury may accord A's testimony too much weight b/c of his "special knowledge of [the] case." (2) Professional courtesy may handicap the opposing lawyer on cross-examination. (3) The bar is ill-served when A's veracity becomes an issue in a case; lay observers especially might speculate whether A has compromised his integrity on the stand in order to prevail in the litigation. (4) The jury might not distinguish b/w A's role as witness and A's role as advocate.
(B) SUCCESSIVE CLIENT CONFLICTS (FORMER CLIENTS)
· 2 duties continue after the representation has ended: (1) Duty of confidentiality (2) Duty of loyalty - lawyer can't undercut work done for the client
Private Practice
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M.R. 1.9(a) - Duties to Former Clients: (1) A lawyer who has formerly represented a client in a matter (C1 - former client) (2) Shall not thereafter represent another person (C2 - current client) (3) In the same or a substantially related matter (4) In which that person's (C2's) interests are materially adverse to the interests of C1's - adverse use of client confidences (5) UNLESS the former client gives informed consent, confirmed in writing. Analytica, Inc. v. NPD Research, Inc. - (C1 - Malec & NPD / C2 - Analytica & Malec) Malec worked for the closely held corp, NPD, and was offered NPD stocks, so he hired attorney Fine from Schwartz and Frreman to appraise the stock value. NPD paid Fine’s fees. NPD gave Fine financial info on profitability, sales trends, management, and marketing in order to conduct an appraisal, and NPD paid Fine’s fees. Thereafter Malec left NPD and incorporated a competing business called Analytica. Analytica hired Schwartz and Fine to persuade the FTC to bring an anti-trust suit against NPD. After that failed, Analytica authorized Schwartz and Freeman to hire Pressman and Hartunian as trial counsel during the anti-trust suit against NPD. NPD moved to disqualify Scwartz and Freeman as counsel. - In this case whether or not NPD paid the fee or provided confidential information is enough. - Substantially related matter? YES - Material adversity? YES - Consent by C1 (NPD)? NO - Once case was transactional and the other was a lawsuit - shows broad approach of the test Westinghouse v. Kerr-McGee - WA office represented the American Petroleum Institute, of which D was a member, on competition in the energy industries. K&E's client had been the Institute rather than KerrMcGee but the court held that this did not matter. - What mattered was that D had furnished confidential info to K&E in connection with the law firm's work for the Institute. - The former client only needs to show that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. - The Court will assume that during the course of the former rep confidences were disclosed to the attorney bearing on the subject matter of the rep. Ask yourself… - Are the laws the same? - Are the issues the same? - Will discovery of one issue help you in another? - Are the facts the same? Successive Duty of Loyalty: - Rule 1.9 - the embodiment of the substantial relationship test does not depend on the existence of confidential info.
(C) IMPUTED CONFLICTS (AFFILIATED LAWYERS) Imputed Disqualification and Migratory Lawyers
M.R. 1.9(b) - Duties to Former Clients: (1) A lawyer shall not knowingly represent a person
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(2) In the same or substantially related matter (3) In which a firm with which the lawyer formerly was associated (4) Had previously represented a client: (a) Whose interests are materially adverse to that person and (b) About whom the lawyer had acquired info protected (confidences) by rules 1.6 and 1.9(c) that is material to the matter; (5) UNLESS the former client gives informed consent confirmed in writing. M.R. 1.9(c) - Duties to Former Clients: (duty of confidentiality) (1) A lawyer who has formerly represented a client (2) In a matter or whose present or former firm has formerly rep a client in a matter (3) Shall not thereafter: (a) Use info relating to the rep to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the info has become generally known; OR (b) Reveal info relating to the rep except as these rules would permit or require with respect to a client. M.R. 1.10 - Imputation of Conflicts of Interest: General Rule (a) While lawyers are associated in a firm, none of them shall knowingly rep a client when anyone of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9… - UNLESS the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the rep of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited form thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm UNLESS: (1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; AND (2) Any lawyer remaining in the firm has info protected by rules 1.6 (confidentiality) and 1.9(c) (successive) that is material to the matter. (c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 1.7 (concurrent conflicts) (which requires informed consent). (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by rule 1.11 (gov’t officers). SCREENING · Look to see if specific institutional mechanisms had been implanted to effectively insulate against any flow of confidential info from the infected attorney to the other members of the new firm; timely employed. · Courts might allow screening so that they won't be disqualified in representing C2 b/c of the lawyer's adverse relationship in the past. Most courts will deny disqualifying the firm. The firm has to have a screening plan in place before the disqualifying motion is made. · Screening keeps the lawyer's disqualification from applying to the law firm. Screening of lawyers (to keep info from one lawyer to be transferred to another lawyer in the same firm) lawyer will be disqualified in some cases by his former client. Double imputation rule - by association of the lawyer's firm the lawyer is disqualified. Courts generally reject double imputation, but they allow single imputation - rule 10(a). · If the lawyer doesn't bring in any confidential information, then there is no need for the firm to show that they have screened the attorneys.
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Legal Ethics Outline
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· We assume that screening will occur when a lawyer joins a new firm and this new firm represented an adversary of the lawyer OR the lawyer brings confidential information about an adversary to a new firm. · CA doesn't recognize screening. What happens to the new firm? Can the new firm represent the adversary? M.R. 1.10(a) - if lawyer is disqualified so is the firm - but this rule has an adverse affect on lawyer mobility. Cromley v. Board of Education (minority) - P, a HS teacher, brought an action under § 1983 b/c she claims she had been denied various admin positions b/c she exercised her right to free speech (complained to a state agency about sexual misconduct) at the workplace. 2 years after pretrial litigation, P's attorney, Weiner, accepted a partnership in the Scariano law firm, which was representing D. Weiner withdrew as P's lawyer. - No per se rule of disqualification. - This is the leading case for the standing of the screening rule. - The presumption of shared confidences is only irrebuttable when entire firm changes sides, NOT when one A changes sides.
3 step analysis to determine whether an attorney should be disqualified: (1) Is there a substantial relationship between the subject matter of the prior and present representations (2) If there is a substantial relationshiphas the presumption of shared confidences of the prior representation been rebutted? - If rebutted, then no disqualification (3) If it has not been rebuttedhas the presumption of shared confidences been rebutted with respect to the present representation? - If not rebutteddisqualification When do we look to disqualify? 1) Substantial relationship? (threshold question) 2) Did A gain confidence info at his prior firm about the client now seeking disqual of his present firm? - It is clear that A had confidential info b/c he was C’s A for 2 yrsthus must look to screening process to block disclosure to the new firm 3) Has A shared the info with the new firm? Look to screening · Rebuttal can be established by: (1) Proof that A in question had no knowledge of the info, confidences and/or secrets related by the client in the prior rep OR (2) Proof that screening procedures were timely employed in the new law firm to prevent the disclosure of info and secrets. (3) Was there screening? · Rebuttal can be presumed of shared confidences by describing the timely establishment of a screening process. · Institutional mechanisms that have been determined to protect successfully the confidentiality of the AC privilege include: · Instructions about the attorney's recusal and of the ban on exchange of info; · Prohibited access to the files; · Locked case files with key distributed to select few;
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Legal Ethics Outline · Secret codes to access info on computer; · Prohibited sharing fees.
Amarkarian
· CA screening cases: - Adams case - case rejected double imputation (lawyer has no personal rep or acquisition of confidential info and he changes firm neither the lawyer nor his firm are disqualified.) - M.R. 1.9(b) - Western Digital case - dealt with experts. This case did allow screening and used the concept of rebutting shared confidences. (like Crowley but involves experts instead of lawyers). - Higdon case - screening okay when a former judge joined a firm. The judge could not represent the client where he was presiding over that case. But the firm could still represent the client. M.R. 1.12(a) - Cho case - judge had received confidential info during settlement conferences. No screening. Entire firm disqualified. - People v. Speedyoil case - applies 1.10(a) to the entire law firm. CA we have imputed disqualification. - Klein case - Ct. rejected screening - lawyer left law firm and took the client with him. The entire firm was disqualified. - Rosenfield - Ct. rejected screening.
(D) GOV'T LAWYER CONFLICTS Government Service
· Concern: private or public gain? We don't want lawyers representing the government and then turning around and representing the law firm in the same matter (i.e. litigation, investigation, adjudication, case, transaction) M.R. 1.11 - Special Conflicts of Interest for Former and Current Government Officers and Employees (a) A lawyer who has formerly served as a public officer or employee of the government: (1) Is subject to Rule 1.9(c); AND (2) Shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, UNLESS the appropriate gov't agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter UNLESS: (1) The lawyer is timely screened and is apportioned no part of the fee from it; (2) Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. (c) Precludes the former gov't official lawyer who has confidential info about a person to represent a private client in a matter which the info could be used to the material disadvantage of that person. A firm with which the lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee. (d) Former private lawyers who are now gov't officials: (1) Is subject to Rules 1.7 and 1.9; AND (2) Shall not participate in a matter OR negotiate in a matter with a person in which the lawyer participated personally and substantially while in a private practice or non-governmental employment, unless the appropriate gov't agency gives its informed consent, confirmed in writing.
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Armstrong v. McAlpin - Altman, A at SEC, supervised and litigated against certain of Ds, including D. The SEC litigation alleged that D and others had looted millions of dollars from the Capital Growth companies. Ds defaulted and P was appointed as receiver of the Capital Growth companies. P was charged with recovering all misappropriated property and retained the law firm of Barrett Smith, which he was a partner. When there's a conflict of interest, Gordon Hurwitz is substituted as counsel. Prior to the substitution, Altman became associated with Gordon as a private attorney. Altman was aware of the facts of the case and the status of the litigation. Altman was screened from participation. - Disqualification of the Gordon firm will have serious consequences for this litigation.
Revolving Door problem:
GM v. City of New York - NYC brought an antitrust action against GM charging monopolization in the manufacture and sale of city buses. The city was represented by private counsel, Reycraft, who had previously worked for the Antitrust Division of the Dept. of Justice. R had substantial involvement in an action brought by the US against GM for monopolizing the manufacture and sale of city and intercity buses. - Court held that former government lawyers not be allowed to profit from information learned about GM in their gov't employment. - Test is not whether the 2 actions rely on the same section of the law, but whether the underlying facts "are sufficiently similar." - Rule 1.11(a) would permit the lawyer to turn around and represent the other "side" on the very issue on which he had worked while in public office. M.R. defines "matter" very narrowly - so that people will want to go into gov't service. - GM case stands apart from other cases b/c it takes a broad approach. What is the meaning of "Matter"? · Contemplates a discrete and isolatable transaction or set of transactions b/w identifiable parties. · Same issue of fact involving the same parties and the same situation or conduct. · Matter requires discrete, identifiable transactions or conduct involving a particular situation and specific parties. M.R. 1.12 - Former Judge, Arbitrator, Mediator or Other Third-Party Neutral (a) A lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other 3rd party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (b) A lawyer shall not negotiate for employment with any person who is involved as a part or as a lawyer for a part in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other 3rd party neutral. (c) If a lawyer is disqualified in (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: (1) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (2) Written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule. (3) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
(E) LAWYERS AS ADVOCATES
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Legal Ethics Outline
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Ethics in Advocacy: - Lawyers are to be zealous advocated for their client's interests within the bounds of the law. M.R. 3.3 - Candor toward the Tribunal (a) A lawyer shall not knowingly (not SL - requires knowledge): (1) Make a false statement of fact or law to a tribunal or fail to correct the false statement of material fact or law previously made to the tribunal by the lawyer; (2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel (this is inconsistent with the adversary system); OR (3) Offer evidence that the lawyer knows to be false (forged/fraudulent docs / witness committing perjury). If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a D in a criminal matter that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person [does not have to be the client] intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal -> (look to see if facts are being changed). (c) [The reasonable remedial measure] Duties continues to the conclusion of the proceeding and applies even if compliance requires disclosure of info otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. · There's an inherent conflict b/w being a zealous advocate and being a lawyer to your client. ABA Opinion 353 (1987) - Most problems involved criminal attorneys. Bar tried to distinguish b/c civil and criminal. The Bar concluded that remedial measures can sometimes Disclosure duty included circumstances where information came from client confidences, even if it were protected by Rule 1.6 Once the judgment is entered, then disclosure duty ends. M.R. 1.6 takes over and precludes disclosure. We have 3 scenarios prior to the sentencing of the lawyer's client: (1) The judge is told by the custodian of criminal records that the defendant has no criminal record and the lawyer knows this info is incorrect based on his own investigation or from his client's disclosure to him: Lawyer NOT permitted to disclose to the court the info he has concerning the client's actual criminal record. (2) The judge asks D whether he has a criminal record and he falsely answers that he has none: Opinion 287 lawyer prohibited from disclosing the client's false statement to the court is contrary to M.R. 3.3. (3) The judge asks D's lawyer whether his client has a criminal record: Lawyer NOT permitted to disclose to the court the info he has concerning the client's actual criminal record. BUT lawyer not allowed to lie or mislead either. Duty to Withdraw: · Direct adversity -> duty to withdraw · Lawyer has a duty to withdraw b/c lawyer can't be an advocate of the court AND a lawyer. · Withdrawal doesn't solve the disclosure duty. · Rule 3.3 will often require revelation of the fraud, an event that will usually make it impossible for the lawyer to continue to represent the client. · Withdrawal requires court permission - need to tell judge why you want to withdraw. - CA - you can't disclose client confidences.
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Legal Ethics Outline · If it's before trial, it may be easier to withdrawal. · If it's post-trial, the lawyer can file an affidavit.
Amarkarian
Nix v. Whiteside - Whether the 6th right of a criminal D to assistance of counsel is violated when an attorney refuses to cooperate with the D in presenting perjury testimony at his trial. Prior to testifying, W told his atty that he intended to state that he saw a gun (or at least something metallic), even though he had stated before that he did not see a gun taken out from the pillow, but thought the gun was there. There is no evidence that a gun was present. The atty informed the clt that he could win the case without him actually seeing the gun & that if the clt lied he would be committing perjury. Atty would have to expose the perjury. The Defendant gets on the stand and says that he knew the victim had a gun, even though there was no testimony that the defendant saw a gun. The defendant appealed, claiming ineffective assistance of counsel: he was denied the right to counsel by not being able to commit perjury. The 8th circuit accepted the defendant’s argument. - Strickland case - 6th inquiry is whether the attorney's conduct was "reasonably effective" - 2 part standard for 6th amendment: (1) Serious attorney error (2) Prejudice - Was EAC compromised b/c attorney told the client not to lie? NO - M.R. permits withdrawal from representation as an appropriate response of an attorney when the client threatens to commit perjury. - For defense counsel to take steps to persuade a criminal D to testify truthfully, or to withdraw, deprives the D of neither of his right to counsel nor the right to testify truthfully. - Holding - Criminal D is not entitled to the assistance of counsel in giving false testimony and that a lawyer who refuses such assistance, and who even threatens the client with disclosure of the perjury to the court if the client does testify falsely, has not deprived the client of ineffective assistance of counsel. · In cases where it's unclear, give client the benefit of the doubt. In Nix it was very clear. Client Perjury: (1) Anticipated (pre-testimony) (2) Surprise (during testimony) (3) Completed (after testimony) People v. Johnson - CA case - list of possible solutions as to client perjury: (1) Full cooperation with presenting D's testimony even when D intends to commit perjury. - Few advocates of this, but CA courts rejected this view. (2) Persuading the client not to commit perjury. - This works best for anticipated perjury and it could work for surprise testimony. (3) Withdrawal from representation. - Does not solve the problem. - Works best for surprise testimony. (4) Disclosure to the Court. - Works best for surprise testimony. (5) Refusing to permit D to testify. - Results in a complete denial of D's right to testify. - Works best for anticipated perjury. (6) Narrative approach represents the best accommodation of the competing interests. - At this point, if the client doesn't rectify than the lawyer has to tell the court. - CA approach - b/c you can't disclose client perjury in CA. No equivalent M.R. 3.3(a)(4)
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- If your client threatens to lie you can still use persuasion, but if you get to trial and the C is insisting on testifying. Lawyer can't examine his client so the court allows the C to give a narrative (tell his story). The disadvantage is that the lawyer is flagging to the jury /judge that he doesn't believe his C.
Zealous Advocacy within Bounds of Law
(1) NO FALSE EVIDENCE · M.R. 3.3 (2) NO CRIME/ FRAUD
MR 1.2(d): Scope of Representation and Allocation of Authority Between Client and Lawyer A lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Lincoln S&L Assn. v. Wall - (1) Appraisals backdated and fraudulent; (2) Caught a second time - Lawyers had assisted clients in committing fraud. - Once the lawyers had discovered that the appraisals were backdated, the lawyers should have stopped representing them. (3) NO MERITLESS CLAIMS OR DEFENSES
M.R. 3.1: Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless: (1) There is a basis in law and fact for doing so that is not frivolous, which includes… (i) A good faith argument for an extension, modification or reversal of existing law. A lawyer for the d in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. [Criminal D attorneys are not restricted to nonfrivolous tactics] FRCP 11 - 4 requirements in pleadings: (1) Info not being presented for any improper purpose (2) Claims, defenses are warranted by existing law or by a nonfrivolous argument (3) Allegations have evidentiary support (4) Denials of factual contentions are warranted on evidence or reasonably based on a lack of info or belief. (4) OTHER IMPROPER CONDUCT
MR 3.4: Fairness to Opposing Party and Counsel A lawyer shall not: (a) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do such an act; (obstruct evidence / obstruct access) (b) Falsify evidence, counsel or assist a w to testify falsely, or offer an inducement to a w that is prohibited by law; (Witnesses false testimony) (c) Knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (Refusing court order)
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(d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (Frivolous discovery) (e) In trial, (i) allude to any matter that the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence, (ii) assert personal knowledge of facts in issue except when testifying as a witness, (iii) or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. (Trial behavior) (f) Request a person other than C to refrain from voluntarily giving relevant info to another party unless: (1) The person is a relative or an employee or other agent of a client; AND (2) The lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such info. (Request that witness not give relevant info)
Exploiting Error
Michigan Opinion CI-1164 - Case deals with false argument and misleading information. Factually, the D did do what he was accused of, but police thought crime occurred at one time (7) when it actually occurred at another time (8). D tells A, I have alibi that at 7pm (I was with my friends and they will testify truthfully to that); - It's truthful testimony but the victim is wrong. So long as the victim is mistaken about the time, then the witness's testimony is ok. - D's attorney did not create the misconception; this is the prosecution's problem. - It is not the obligation of defense counsel to correct inaccurate evidence introduced by the prosecution or to ignore truthful evidence that could exculpate his client. (1)There is no duty to volunteer factual info that is harmful to your client. (2) In the middle we cross advocacy rules with the lawyer's duty as the officer of the court. - MI Opinion goes with the advocacy side and allows the exploitation of the error (?) (3) Putting on false evidence is prohibited. · Contrasting scenario where would be improper for D’s A to offer evidence: D altered tire treads on his car to make it look like he did not do the crime—here D alters the evidence, A knows about this, and a sends expert w to check out the treads which will show that d did not do the crime; expert is offering truthful testimony as to what is on the ground; here a MUST NOT offer testimony of expert b/c it would be a fraud.
Silence
Southern Trenching, Inc. v. Diago - P sues for injuries from an accident in Nov. He does not volunteer information about an accident that occurred a few months later that has no connection with D. Physicians assumed that all injuries were b/c of D. P and his attorney deliberately concealed this fact. - For most part, an attorney is allowed to remain silent, but there are some circumstances in which silence is equal to an affirmative misrepresentation/representation. - A lawyer shall not knowingly… fail to disclose a material fact… when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. - Civil case - the opposing party has to pay damages and that party will be disadvantaged by false statements. - Here, P was in a litigation setting and that strengthens the argument of misrepresentation. Criminal cases we will tolerate a lower level of error b/c of the consequences to D.
Hardball and Incivility
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Legal Ethics Outline
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Mullaney v. Aude - D, brought a tort action against P alleging that he infected her with genital herpes. D's attorney (male) started making remarks to P's attorney (female). This court decides the issue of exhibition of gender bias by lawyers in the litigation process. - "A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socio-economic status, against parties, witnesses, counsel or others.
Misstating Facts, Precedent, or the Record
In a setting where you're dealing with controlling authority that is adverse to your client it's a good idea to state it. If you don't disclose the preceding case law, it may be damaging to your case.
The Obligation to Reveal Adverse Legal Authority
Matter of Thonert - D failed to tell his client about the holding in Fletcher and it was D who represented the client in Fletcher. D even failed to mention this case in his brief and neither did the prosecution. - Rule 3.3(a)(3) - a lawyer shall not knowingly fail to disclose to a tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. Anders v. California - Ct. held that a court-appointed lawyer, who moved to withdraw after concluding that an indigent D had no grounds for appeal, should accompany his motion with a "brief referring to anything in the record that might arguable support the appeal." - This is called an "Anders Brief". The court SC then held that the Anders Brief was not a constitutionally obligatory procedure, but states can mandate the briefing requirements.
Real (Criminal) Evidence
(1) Fruits and Instrumentalities: (bloody shoes, burned wallets, cash taken from bank robberies, guns) · Is there a duty to turnover evidence? · Is there a duty to disclose (dealing with information relating to this evidence)? (2) Other Evidence: facts that go along with the crime (e-mails, phone records, documents, checks) · Is there a duty to turnover evidence? (3) Observations: lawyer may have observed evidence (4) Statements: Statements could be protected by the A-C privilege In Re Ryder - Attorney’s client robbed a bank with a sawed-off shotgun. Client had the rest of the money and the gun in a safe deposit box. Ryder called another A and asked for advice on what to do. Ryder, to protect his client, transferred the money and gun into a safe deposit box under his name. A did not tell C that he would take the money back to the bank b/c he wanted to keep the client’s confidence. - Lawyer can not keep fruits and instrumentalities of a crime when it comes into his possession. Turnover Duty If lawyer takes possession of evidence… (a) From client: lawyer is privileged as to source (b) From 3rd person: lawyer is NOT privileged as to source Disclosure Duty If lawyer observes, but does NOT take possession…
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(a) From client: No turnover duty & No disclosure duty AND observation privileged by A-C. If lawyer observes AND takes possession… (a) From client: There is a turnover duty AND there MAY or MAY NOT be a disclosure duty. 3 scenarios: (1) Client shows up at his lawyer's office. "I shot a guy," he says, then takes a gun and the victim's wallet from his pocket and puts them on the lawyer's desk. - Here A observes but doesn't take possession, so no turnover duty and no disclosure duty. - If the info doesn't come directly from the client you could have a limited privilege. (2) In preparing for anticipated (but not yet filed) civil action against her client, a lawyer discovers harmful e-mail messages on her client's computers. - If you have a filed civil case, then discovery rules prohibit destruction of evidence, related to the case. If you do, it's obstruction of justice. When the case is anticipated, the issue turns on whether the destruction of the evidence is illegal in the state that you're in. In CA, our obstruction of evidence statute states that it would not be unethical to tell the client to destroy the documents when they have a lawsuit coming. But if the destruction issue comes up, the other side may be able to presume the info that was destroyed. (3) A man charged with murder tells his appointed lawyer that he has committed 3 other murders as well. None has been detected. He directs the lawyer to the bodies in shallow graves in the woods. The lawyer, incredulous, checks and finds them there. - This is an observation scenario. So long as it's merely an observation and it comes from the client, the observation is protected by the A-C privilege. - The statement by the client is privileged. People v. Meredith - EXCPETION TO THE CRIMINAL EVIDENCE RULES - Ds, Frank and Meredith, appeal from a robbery conviction. To support a theory of conspiracy the prosecution sought to show the place where the victim's wallet was found, and the admissibility of that evidence comprises the principal issue on this appeal. Issue - whether under the circumstances of this case Frick's (defense investigator) observation of a privileged communication, finds protection under the A-C privilege. - CA law protected as privileged the D's statement to his lawyer regarding the location of the wallet. Furthermore, the info retained its protection even though the lawyer disclosed the substance of the communication to the investigator, since the purpose of this disclosure was to aid in the representation. - Once lawyer takes possession of it, A has to turn it over to the police. - The source of the information about the location of the burned wallet was the client. Any info about this item of evidence, given by the client, is protected by the A-C privilege. BUT in this case, the burned wallet was removed. - A-C privilege is not strictly limited to communications, but extends to protect observations made as a consequence of protected communications. - BUT whenever defense counsel removes or alters evidence, the statutory privilege allows revelation of the original location or condition of the evidence in question. - If you observe the wallet in its original location: - NO duty to disclose AND no duty to turnover. - The police can still find it, but if you move it then they won't be able to. **But if the client had given it to the lawyer, the lawyer would have to turn it over but won't have to disclose the source**
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If defense counsel leaves the evidence where he discovers it, his observations derived from privileged communications are insulated from revelation. If counsel chooses to remove evidence to examine or test it, the original location and condition of that evidence lose the protection of the privilege. **If you don't want to disclose the info, then don't take possession of it** The lawyer has no requirement to disclose the source of the information, if it's the client. The lawyer only has to let the police know where to find the evidence. Lawyer gives the police what they would have discovered on their own. People v. Belge - D, charged with one murder, revealed counsel that he had committed 3 others. A located one of the bodies. Counsel did not reveal the location of the body until 10 months later, when he exposed the other murders to support an insanity defense. - A-C privilege is extended to protect observation made as a consequence of protected communications. State of West Virginia v. Douglass - A knew about this pistol, or where it was to be found, he knew only from the communications which had been made to him by his client confidentially and professionally. - Just b/c A had observed the pistol did not nullify the privilege. State v. Olwell - Ct. reviewed contempt charges against an attorney who refused to produce a knife he obtained from his client. The court held that "to be protected as a privileged communication… the securing of the knife… must have been the direct result of info given to Olwell by his client. - A should have delivered the evidence to the prosecution but should not reveal the source of the evidence; by allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client's privilege is preserved and a balance reached between these conflicting interests. Morrel v. State - A must not only turn over evidence given him by third parties, but also testify as to the source of that evidence. - A-C privilege inapplicable b/c the third party was not acting as an agent of the attorney or the client. A-C Privilege Applies A takes possession of evidence from C A takes possession of evidence from 3rd person If A observes, but does NOT take possession from 3rd party If A observes, but does NOT take possession from C If A observes AND takes possession from 3rd person If A observes AND takes possession from X Turnover Duty X X X Disclosure Duty
X
X
X X X
X May or May not
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Legal Ethics Outline C
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M.R. 3.8 - Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a) Refrain from prosecuting a charge that the prosecutor knows is not supported by PC. (b) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) Make timely disclosure of evidence to the defense; (e) Not subpoena a lawyer to present evidence about a past or present client unless the prosecutor reasonably believes: (1) The information sought is not protected from disclosure by any applicable privilege; (2) The evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) There is no other feasible alternative to obtain the information
(F) LAWYER FOR ENTITIES
· The corporation is the client - NOT the person who hired the lawyer. · B/c corporate law recognizes a duly formed corporation as a separate entity -> a lawyer's ethical duty is to the corporation and not its constituent actors. · Corporate duties are a matter of substantive law · Powerful constituents - control group - CEO, board of directors, corporate agents and shareholders. M.R. 1.13 - Organization as Client (a) A lawyer employed (in-house) or retained (outside counsel) by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. UNLESS the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law. (work your way up chain of command - refer to higher authority) (c) Except as provided in (d), if… (may reveal disclosure of wrong doing) (1) despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal (permissive) information relating to the representation whether or not 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation by an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to (b) or (c), or who withdraws under circumstances that require or permit the lawyer to
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take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or removal. (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. (concurrent corporate representation) CA 3-600 - Organization as Client (a) Same as 1.13(a) (b) Clearer in protecting confidential information. Requires working your way up the chain of command. (c) No disclosure duty. (d) Consistent with 1.13(f) (e) Consistent with 1.13(g) · Representation b/w lawyer and entity is different when you have an in house counsel compared to outside counsel.
Hypotheticals - What should a house counsel of a large corporation do if a high-ranking officer tells her? (1) He is about to implement a business decision that the lawyer believes is unwise but defensible. - A gives the officer his best advice on why this decision is unwise and that's it. - A's advice is limited to giving her advice; client will make the decision. (2) He is about to implement a business decision that the lawyer is certain will result in a substantial loss for the corporation. - Is the substantial loss is reasonably certain to follow. (3) He is about to implement a business decision that the lawyer recognizes could be profitable but which she also believes may subject the company to civil antitrust liability if discovered. - "May believe" - there is no reasonable certainty. (4) He is about to implement a business decision that the lawyer recognizes could be profitable but which certainly subjects the company to antitrust liability if discovered. - "Certainly subjects" - there is reasonable certainty - need to work up the chain of command. (5) He is about to take action that will personally benefit the officer and that, the lawyer concludes, will violate the officer's fiduciary obligation to the corporation. - Need to work up the chain of command · Duty of loyalty - triggers working your way up the chain of command. · Duty to protect the public - triggers the possibility of revealing disclosure of wrongdoing.
Conflicts and Confidentiality in Entity Representation
· Holder of the confidentiality is the corporation. · Ethical duty of confidentiality · A-C privilege · If lawyer represents both corporation and employee -> both have an A-C privilege, but the privilege will be lost on the communication b/w them b/c of the joint client exception.
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· Generally, corporate management is the holder of the privilege. · If corporation goes into bankruptcy, the holder of the privilege is the bankruptcy trustee. · In a shareholder derivative lawsuit, the shareholder is the holder of the A-C privilege so they can use privileged information in their lawsuit against the corporate actors. · If the corporation is sold, the new corporation is the holder of the A-C privilege. (Tekni-Plex case) Tekni-Plex, Inc. v. Meyner and Landis - D was retained as P's counsel in 1971. In 1994, D represents both P and Tang (the sole shareholder and president) in a merger agmt with TP Acquisition Co. TP commenced arbitration against Tang b/c the company was not complying with environmental laws. Tang retained D and P moved order against D (1) enjoining the law firm from representing Tang in any action against P; (2) enjoining D from disclosing to Tang any information obtained from old Tekni-Plex; (3) ordering D to return to new Tekni-Plex all of the files in the law firm's possession concerning its prior legal representation of old Tekni-Plex. - Court concluded that D should be disqualified from representing Tang in the arbitration. - The authority to assert A-C privilege passed to the corporation's successor management. - The files should be returned to new Tekni-Plex and D should be enjoined from disclosing the substance of these communications to Tang. - But new Tekni is not entitled to the law firm's confidential communications concerning its representation of old Tekni with regard to the acquisition. - When control of a corporation passes to new management, the authority to assert and waive the corporation's A-C privilege passes as well. · Successor management stands in the shoes of prior management and controls the A-C privilege with respect to matters concerning the company's operations. · But the mere transfer of assets with no attempt to continue the pre-existing operation generally does not transfer the A-C privilege. · So the control of the A-C privilege with respect to any confidential communications b/w D and corporate actors of old P concerning these operations passed to the management of new P. · Once the corporation was sold, new corporation was transferred the A-C privilege from the old corporation except as to the acquisitions confidences. Who is the Client in Entity Representations? Jesse v. Danforth - court held that once a corporation is created, it becomes the only client retroactively, displacing the corporate organizers who become retroactive non-clients. - The retroactive application of the entity rule simply gives the person who retained the lawyer the status of being a corporate constituent during the period before actual incorporation, as long as actual incorporation eventually occurred. - Where the person who retained the lawyer provides information to the lawyer not directly related to the purpose of organizing an entity, then it is the person, not the corporation which holds the privilege for that communication. Corporate Officers and Employees CFTC v. Weintraub - trustee for a bankrupt corporation waived A-C privilege for all communications b/w the company's former counsel and its former officers, directors and employees. - SC upheld the waiver: "When control of a corporation passes to new management, the authority to assert and waive the corporation's A-C privilege passes as well." - The actor whose duties most closely resemble those of mgmt. should control the privilege. Matter of Bevill, Bresler & Schulman Asset. Mgmt. Corp. - 5 part test for corporate officers who claim a personal privilege for communications with corporate counsel:
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(1) They must show they approached counsel for the purpose of seeking legal advice. (2) They must demonstrate that when they approached counsel they made it clear that they were seeking legal advice in their individual rather than in their representative capacities. (3) The must demonstrate that the counsel saw fit to communicate with them in their individual capacities, knowing that a possible conflict could arise. (4) They must prove that their conversations with counsel were confidential. (5) They must show that the substance of their conversations with counsel did not concern matters within the company or the general affairs of the company. · Strict test - not easy to testify. Privilege and Conflicts in Shareholder (and Other Fiduciary) Actions Garner v. Wolfinbarger - When a breach of fiduciary duty is charged, whether the plaintiffs can require the corporation's lawyer to give them privileged information on the theory that they are suing to enforce a right of the corporation. - Court held that the shareholders should be permitted "to show cause" why the privilege "should not be invoked in the particular instance." Closely Held Entity Murphy & Demory, Ltd. v. Murphy - Murphy and Demory were incorporated by Pillsbury Madison. Later, Murphy asked one of the Pillsbury attorneys to help him either gain control of Murphy & Demory, or to set up a competing business. The Pillsbury lawyer agreed to the dual-representation without notifying the corporate client. Further, the Pillsbury lawyer ignored warnings from junior associates about the conflict. - Court's opinion would suggest that this type of conflict is NOT waivable. - Violation of a conflict of interest is a breach of fiduciary duty and the law firm could be liable for malpractice. - Law firm partners are not always sensitive to ethical issues; business interests win out.
Retaliatory Discharge and Whistleblowing
· Retaliatory discharge law - employees of big corporations, who are fired, for not acting illegally. · K Claim? Generally NO recovery b.c P has to persuade the court to infer a K term and then find that it was breached. · Tort Claim? Generally recovery is allowed when an employee is discharged of insisting on compliance with or the protection of an important public policy. Balla v. Gambro - P told his employer that its imminent marketing of defective kidney dialysis machines violated FDA regulations. P was fired and sued for retaliatory discharge. - Illinois Court rejected P's retaliatory discharge claim b/c of policy reasons that under Illinois law of confidentiality. - IL SC recognized that a non-lawyer employee in IL would have a retaliatory claim on the identical facts, denied one to Balla only b/c he was a lawyer. 2 reasons for declining in-house counsel to pursue retaliatory discharge claims: (1) It is essential to the proper functioning of the lawyer's role that the client be assured that matters disclosed to counsel in confidence remain sacrosanct; to permit in-house attorneys to file suit against their clients can only harm that relationship. (2) A tort remedy for in-house counsel is redundant - such attorneys are under an ethical obligation to sever their professional relationship with the erring client in any event. · If the employee is in-house counsel of a big corp. can they take advantage of this retaliatory discharge claim?
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General Dynamics Corp. v. Superior Court - In-house lawyer got fired b/c he was going to reveal info about drug use and bugging going on in the corporation. - CA - lawyer doesn't have a whistleblower duty. - Scope of mandatory ethical duties that would trigger the right to a tort claim is limited (narrow) BUT not non-existent. - BUT in most of tort claims A has to disclose information in A-C privilege. - Tort Claims - lawyer-client relationship - Contract Claims - usually b/w employer-employee. Can't get punitive damages only salary. · K claim - Unlikely to implicate values central to the A-C relationship, there is no valid reason why an in-house attorney should not be permitted to pursue such a K claim in the same way as the non-attorney employee. · Tort claim - Cause of action is qualified; There is no reason inherent in the nature of an A's role as inhouse counsel to a corporation that in itself precludes the maintenance of a retaliatory discharge claim, provided it can be established w/o breaching the A-C privilege or unduly endangering the values lying at the heart of the professional relationship. Holding - Ct. favors allowing a tort claim for discharges for reasons that contravene an A's mandatory ethical obligations or for which a non-attorney employee could maintain such a claim and a statute or ethical code provision permits the A to depart from the usual rule that client matters remain confidential. - And in those instances where the attorney-employee retaliatory discharge claim is incapable of complete resolution w/o breaching the A-C privilege, the suit may not proceed. **If corporate employer tells A not to report a discharge to the EPA, this is not a crime but it may violate agency law, A can't apply the crime-fraud exception. Employer threatens that A will be fl - A would be limited to a K claim, b/c he couldn't give out confidential info without violating A/C privilege. But if there was a crime-fraud exception where A could release info w/o violating A/C privilege then he would be able to sue under a tort claim.** · Analogy b/w lawyer and non-lawyer situations: Fracasse case - SC held that a client can discharge his attorney with or without cause. But here SC holds that firing a lawyer-employee comes with consequences. · In determining whether an in-house attorney has a retaliatory discharge claim against his or employer: (1) Was the attorney discharged for following a mandatory ethical obligation prescribed by professional rule or statute? YES -> A would have a retaliatory discharge cause of action against the employer; NO ->… (2) Resolve 2 questions: (a) Whether the employer's conduct is of the kind that would give rise to retaliatory discharge action by a non-attorney employee. (b) The court must determine whether some statute or ethical rule, such as the statutory exceptions to the A-C privilege permits A to depart from the usual requirement of confidentiality with respect to the client-employee and engage in the "non-fiduciary" conduct for which he was terminated. · An A who unsuccessfully pursues a retaliatory discharge suit, and in doing so discloses privileged client confidences, may be subject to State Bar disciplinary proceedings. · Where the attorney-employee's retaliatory discharge claim is incapable of complete resolution w/o breaching the A-C privilege, the suit may not proceed. · Issues in this case don't apply if your outside counsel b/c there is no employer-employee relationship.
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Negotiation and Transactional Matters
Article 4 - Transactions with Persons other than Clients M.R. 4.1 - Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: (a) Make a false statement of material fact or law to a third person; OR (b) Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. (Deals with omissions rather than affirmative statements) - M.R. 1.6 makes the "unless" clause narrower. · If the lawyer decides, even though they are permitted, not to disclose the information, than 4.1(b) says you don't have to. Rubin v. Shottenstein, Zox and Dunn - MDI's main officers, Todds, approached Rubin and Cophen about making a $150,000 investment in MDI debt and a $3,300 investment in its stock. Todds told R and C to discuss MDI's financial condition with RB, the company's attorney. They did not tell R and C that the company was already in default. R asked his own attorney to do some research on MDI, even though RB assured him that there was nothing wrong with the company and everything was fine. R and C purchased MDI debt and the bank froze MDI's account, MDI filed bankruptcy. - It's presumed that the lawyer knows all this, and so the lawyer had a duty of candor (M.R. 4.1) not to lie to these 3rd parties and not to engage in any material omissions. - The lawyer misled these investors by telling them that the company was not in default and convinced them not to talk to the bank. - Lawyer were held responsible b/c (1) Misleading statements and/or omissions were made (2) Reasonable reliance - The distinction here in transactional practice here is that confidentiality doesn't provide the justification for what the attorney did. · There was a duty b/c there was direct contact, and A was not silent, considering that he offered material misrepresentation; it is one thing to remain silent, which under securities law could be a valid claim, but here, A made active misstatements, and the ct said that once the A undertakes certain reps/discussions regarding the subject matter, they must be accurate (cannot mislead or omit). May or Must Lawyers Warn Victims of a Client's Fraud? · Prior to 2003, M.R. 1.6 and 4.1 were textually unwilling to authorize a warning if doing so breaches confidentiality, BUT you cold make (a) noisy withdrawal (desire by the Bar that something must be done) and (b) disaffirmance of opinions. · ABA said that if you don't disaffirm then the 3rd party is going to assume that your opinions are valid and they're going to rely on them. · Noisy withdrawal - A has to tell people who have relied on his information/opinion that A is disaffirming it or disavowing it. · ABA adopted noisy withdrawal and disaffirmance of opinions is b/c of the 3rd party reliance · Noisy withdrawal and disaffirmance of opinions only applies when withdrawal is mandatory. · Now, 1.6(b)(2-3) allows you to breach confidentiality if it's necessary. ABA Opinion 366 (1992) - trying to get loan from bank; A (who is working for company) negotiates and drafted loan docs; A issued formal opinion to bank that company was in good standing; bank issues the loan; unknown to auditors and A, CEO was falsifying facts; all based on false info; A did not knowingly
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make false info; but if underlying info she was basing her opinions on was false, her opinions are false; so she unknowingly assisted the C in fraudulently obtaining a loan; CEO and Treasurer confess to A only, but they tell A that they're going to stop; they say they will hire new counsel and not disclose these past frauds to new A. - When C confesses to A that they've committed fraud - 1st thing A needs to do is tell C that they need to rectify this situation. Attorney needs to persuade C to do so. - If they refuse to mitigate/rectify - A must withdraw from representation. - A has to send a letter to the bank disaffirming his opinion and then he sends another letter to the bank that he is withdrawing as counsel. A could also tell the bank that C has falsified the books, but this is only permissive under 1.6(b). - This is a setting of mandatory withdrawal, so noisy withdrawal is okay. - If it's not mandatory, noisy withdrawal is not an option - the lawyer can withdraw but can't tell anybody about it - withdrawal can't be noisy. · If A is found to be knowingly assisting in fraudulent activities, then we implicate MR 1.16(a)(1): must withdraw if rep will result in violation of rules of professional conduct or other law. · CA doesn't follow ABA Opinion 366 - no noisy withdrawal. · MR 1.6 would noisy withdrawal violate duty of confidentiality - If a withdraws and keeps quiet, the legal opinion will still be good and used even though it is fraudulent; so in order to abide by 1.16(a)(1) it is not enough to formally withdraw, ABA says withdrawal has to be effective; So ABA suggests that withdrawal has to be noisy, but being noisy conflicts with confidentiality of 1.6. But if quiet withdrawal everyone will be suspicious ABA: at times you have to be noisy to be effective, but disclosure is passive by simply saying ―I withdraw and I disavow my past opinions/work.‖ M.R. 4.3 - Dealing with Unrepresented Person · In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. · When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. · The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interest of such person are or have a reasonable possibility of being in conflict with the interests of the client. M.R. 4.4 - Respect for Rights of Third Persons (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. - Ogden says that you should notify and give back the documents, but ABA hasn't said anything about requiring A to return the document. Virzi v. Grand Trunk Warehouse & Cold Storage Co. - Personal injury diversity action. P's attorney prepared and filed a mediation statement for P with the mediation panel. P dies, but P's attorney didn't know. At no time from the time P's attorney learned of P's death, until the agmt to settle the case did P's attorney notify D's attorney or the Court of the death of the P. Court held that the attorney has an absolute ethical obligation to do so, and sets aside the settlement ordered in this matter.
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- A has a duty to contend, with zeal, for the rights of his client, he also owes an affirmative duty of candor and frankness to the Court and to opposing counsel when such a major event as the death of the P has taken place. - Generally, don't have to disclose adverse statements, unless directly asked, but this situation is different. There is a duty of candor to the Court and opposing counsel in regards to - 3 factors: (1) P's status (she's dead); (2) Settlement amount dependent on P's testimony; (3) Impact of death on P's claim - P's A did not make a false statement, D's A never asked. P's death was not caused by injuries related to the lawsuit but P's death would have had a significant bearing on D's willingness to settle. · Prosecutors have an affirmative obligation to put on the table and reveal to other side exculpatory info. · Does death of witness fall under exculpatory info? No - B/c exculpatory info tends to exculpate the D (tends to show that D did not do the crime) - Fact that witness who was going to testify that D did it dies does not indicate that d did not do it, all his death does is make their case weaker. Threatening Criminal Prosecution · A lawyer can raise the possibility of criminal charges in negotiating a civil claim, so long as the civil and criminal matters are related and the lawyer does not claim as improper influence over the criminal process. · Where there is a possibility of dual civil and criminal liability, the prosecutor can raise possibilities of criminal charges in a civil suit. · CA doesn't allow you to do this.
Judges
· There's a requirement that judges have substantial legal experience. · Lawyers appear before judges, so it's important for lawyers to know the legal ethic rules that apply to judges. · MPRE Qualities of a Judge: (1) To be fair; (2) Just; (3) Cite a case on the merits; (4) To be impartial; (5) Has no personal stake in the case; (6) Doesn't express opinions on the case outside the courtroom. 3 penalties for judges when there's a violation of judicial ethics: (1) Removal (2) Recusal (like disqualification, but it means that a judge has to step aside and not rule on a particular case) (3) Reversal (judgment on the merits is set aside and a motion for a new trial is granted) · Federal officers can't be removed they need to be impeached; states have committees that rule on what should happen to state officers. The law governing judicial ethics has multiple sources: A. CONSTITUTION - DUE PROCESS OF LAW · There's a right to an impartial decision maker · Disqualifying financial interests · Case law (look below)
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· Tumey v. State of Ohio - judge's salary based on fees and costs levied by him acting in a judicial capacity. Disqualifying financial interest. · Ward v. Village of Monroeville, Ohio - Judge also the mayor through fined, forfeitures, costs and fees provided a substantial portion of the village funds. Disqualifying financial interest. · Aetna Life Ins. Co. v. Lavoie - Judge had his own claim similar to the one that was in his courtroom regarding insurer's alleged bad faith refusal to pay a valid claim. Disqualifying financial interest. · Haas v. County of San Bernardino - hearing officer had an incentive to decide in favor of the county b/c then the county would select her for future cases. Disqualifying financial interest. B. STATUTES - § 455- JUDICIAL DISQUALIFICATION (a) Any judge shall disqualify himself in any proceeding in which is impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1)He knows that he or a family member has a financial interest in the subject matter in controversy or in a party to the proceeding, OR ant interest that could be substantially affected by the outcome of the proceeding. (c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (e) A judge may not accept a waiver of any ground for disqualification under § 455(b), but may accept such a waiver under § 455(a) after a "full disclosure on the record of the basis for disqualification." · Purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. · In determining whether a judgment should be vacated for a violation of § 455(a), it is appropriate to consider the risk of undermining the public's confidence in the judicial process. C. ABA MODEL CODE OF JUDICIAL CONDUCT (1) Independence · A judge shall uphold the integrity and independence of the judiciary. · Integrity · Independence · Public Confidence · Compliance with the Law (2) Impropriety · Judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. (a) Promoting public confidence (b) Prestige of office (1) Judge's relationships and judicial conduct (2) Prestige of office and Judge's personal or pecuniary interest (3) Judicial selection inquiries (4) Judicial title and written communications (shall not testify voluntarily as a character witness) (c) Organizational memberships (1) Invidious discrimination (2) Military, religious, and youth organizations (3) Impartiality · A judge shall perform the duties of judicial office impartially and diligently. (a) Judicial duties take precedence (b) Adjudicative Responsibilities (1) Duty to hear and decide (2) Faithful to law
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(3) Order in proceedings (4) Judicial demeanor (courtesy) (5) Judicial duties without bias or prejudice (6) Lawyers lack of bias or prejudice (7) Right to be heard to lawyer or persons with a legal interest; no ex parte communications outside the communications made to the judge outside the presence of the parties concerning a pending or impending proceeding. · Exceptions to (7): (8) Prompt judicial decision making (9) No public comment on pending matters (10) Communication with jurors (11) Non disclosure of non-public information (c) Administrative Responsibilities (1) Diligence in administrative responsibilities (2) Court staff avoid bias or prejudice (3) Supervision of other judges (4) Court appointment standards (d) Disciplinary Responsibilities (1) Ethics violation by other judges (2) Ethics violations by lawyers (3) Reporting criminal charges against Judge (e) Disqualification (1) Impartiality might reasonably be questioned standard, where: (a) Judge has a personal bias to a party or personal knowledge of disputed evidentiary facts. (b) Judge served as a lawyer in a proceeding; judge was a material witness; a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter. (c) Judge or family member has an economic interest in the subject matter of the controversy or in a party to the proceeding. (d) Judge or a person within the third degree of relationship to either the judge or the spouse… (i) Is a part to the proceeding; (ii) Acting as a lawyer in the proceeding (iii) Judge knows this person has more than a de minimis interest in the proceedings; (iv) and to the judge's knowledge this person is likely to be a material witness. (e) Judge knows that the party or their lawyer has made contributions to judge's campaign that is greater than a reasonable and appropriate amount. (f) Judge has made a public statement to (i) an issue in the proceeding OR (ii) the controversy in the proceeding. (2) Judge shall keep informed about the judge's (and spouse's; children's) personal and fiduciary economic interests (f) A judge may disclose the reasons for disqualifications and the parties may waive the disqualification. If disclosure of any basis except for prejudice or bias, and parties agree and judge agrees to participate in the proceeding, then it's ok. The agreement shall be incorporated in the record of the proceeding. (4) Extra-judicial activities conflicting with judicial obligations · A judge shall so conduct the judge's quasi-judicial and extra-judicial activities as to minimize the risk of conflict with judicial obligations. (a) Judge shall conduct extra-judicial activities so that they do not: (1) Cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) Demean the judicial office; OR
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(3) Interfere with the proper performance of judicial duties. (b) Quasi-judicial and Avocation Activities - teaching, speaking about the law ok. (c) Government, Civic, or Charitable Activities (1) A judge shall not appear at a public hearing except on matters concerning the law, the legal system, the admin of justice. (2) A judge shall not accept governmental committee or commission that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system. (3) A judge may serve as an officer of an organization devoted to the improvement of the law not conducted for profit and subject to the following limitations… (d) Financial Activities (1) A judge shall not engage in financial and business dealings that: (i) May exploit the judge's judicial position; (ii) Involve the judge in transactions or relationships with lawyers likely to come before his court. (2) Judge may manage family member's investments (3) A judge may manage and participate in: (i) A business closely held by the judge or his family; (ii) A business entity that has invested the judge's financial resources (4) Minimize number of cases judge is disqualified from. (5) A judge and his family shall not accept a gift from anyone except for: (i) Incident to a public testimonial, books supplied by publishers on a complimentary basis; (ii) Incident to the business, profession of other family members; (iii) Ordinary social hospitality; (iv) Gift from a relative or friend for a special occasion. (e) Fiduciary Activities (1) Judge shall not serve as executor, administrator except for family and that's if it doesn't interfere with the proper performance of judicial duties. (2) Judge shall not serve as a fiduciary is he will have to ordinarily come before the judge (3) Same restrictions on financial activities applies here. (f) Serve as Arbitrator or Mediator - judge can not in a private capacity. (g) Practice of law - judge cannot but can act pro se for providing legal advice to his family. (h) Compensation, Reimbursement, and Reporting (1) Compensation is okay if it doesn't appear to influence the judge's judicial performance (i) Shall not exceed a reasonable amount; (ii) Expense reimbursement limited to actual costs. (2) Public reports of reimbursement and compensation. (5) Inappropriate Political Activity · A judge or judicial candidate shall refrain from inappropriate political activity. A. All Judges and Candidates (a) A judge or candidate for judicial office shall NOT: (1) Act as a leader or hold office in a political organization; (2) Publicly endorse or publicly oppose another candidate for public office; (3) Make speeches on behalf of a political organization; (4) Attend political gatherings; (5) Solicit funds, or make a contribution to a political organization. (b) Judge resigns when he becomes a candidate for a non-judicial office except when he's a delegate or running for office in a state constitutional convention. (c) A candidate for judicial office: (1) Shall maintain dignity, impartiality, integrity and independence (2) Employees can't do what the candidate can't do.
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(3) Shall not authorize or permit others to do what candidate can't do. (4) Shall not: (i) Make pledges or promises inconsistent with impartial performance (ii) Knowingly misrepresent the identity, qualifications concerning the candidate. (5) May respond to personal attacks as long as the response does not violate 5(a)(c)(4). B. Candidates Seeking Appointment to Judicial or Other Governmental Office (a) Shall not solicit or accept funds to support his candidacy. (b) C. Judges and Candidates Subject o Public Election (1) May purchase tickets for public gatherings; identify himself as a member of a political org.; contribute money to political org.; WHEN a candidate for election speaks at gatherings; appears in the media, distributes campaign materials; publicly oppose or endorse other candidate. (2) A candidate shall not personally solicit or accept campaign money. (3) Candidate tells his committee to accept money up to the allowed limits. (4) If aggregate money exceeds, candidate needs to disclose. (5) Candidate's name to be listed in the media or appear on promo tickets. D. Incumbent Judges · A judge shall not engage in any political activity except when authorized by law, to improve the legal system or authorized by this section. E. Applicability · All incumbent judges · Time for compliance -> immediately (6) Ethics Compliance · Compliance with the code of judicial ethics.
IRQ standard - Reasonable Doubts about Judges Impartiality Ethics Law
· Andrews v. Agricultural Labor Relations Bd. - Bias cannot be established based on the political or social outlook of the administrative law officer. Judge trying to disqualify himself didn't work. · Briggs v. Superior Court - Rumors that DA believed judge was prejudiced against People's interests did not require disqualification on basis of interest of justice or on basis that a member of public might reasonably entertain a doubt that judge would be impartial in proceeding with the case. · Curle v. Superior Court - Judge disqualified b/c of reasonable doubts about judge's impartiality. Judge rejected probation recommendation, made ex parte communications with the probation officer's supervisor, appearance of bias in favor of the DA's office. · In Re Maria Aguinda - Judge attended an expense paid seminar that was funded by a nonprofit foundation sponsored by an organization that got funding from D in a case he was trying, Texaco. Mandamus petitioner was denied b/c the topics discussed in the seminar had no bearing on any issue that is material to resolution of the claims or defenses in the lawsuit. And D's role in the seminar was too remote, that is it had an indirect and minor funding role. Liljeberg v. Health Services Acquisition Corp. - D brought an action against P, seeking a declaration of ownership of a corporation known as St. Jude. 10 months later, D learned that the Judge was a member of the Board of Trustees of Loyola University while Liljeberg was negotiating with Loyola to purchase a parcel of land on which to construct a hospital. - The court held that the judge lacked actual knowledge during trial and prior to the filing of his opinion; the evidence nonetheless gave rise to an appearance of impropriety. - It turns out Judge Collins had actual knowledge about the University's potential interest in the St. Judge Hospital project. - As a trustee, the judge had a responsibility to Loyola; and Collins here was the trier of fact since there was no jury; Collins didn't tell the litigants anything.
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- This is not a due process financial interest case, BUT there is enough info to make an argument that there is a financial interest disqualification as being the trustee for Loyola, even though the stronger argument is the IRQ standard. - IRQ standard has to be diligent in making sure that the connections are disclosed. - Here, Collins should have disclosed and recused himself. · The Court found that regardless of the judge's actual knowledge "a reasonable observer would expect that Judge Collins would remember that Loyola had some dealings with P and St. Jude and seek to ascertain the nature of these dealings. · Judge's relationship to Loyola University conflicted with his judicial duties and created impartiality problems. Whether or not Judge took into account Loyola's interest, as long as it looks like impropriety then it is. · A judge sees that one of the counsel's is his former student. Does the judge have to disclose? Ogden says YES. But what if the student is more than just a former student from one class, but this student has taken many classes that you've taught and you attended his wedding? This is a lot closer and you have to disclose. · Suppose a lawyer walks in is your former law clerk and you've maintained a good relationship now that you're on the bench, the relationship with counsel is so close that you have to disclose. What Conflicts Prevent a Judge from Sitting? · Personal Relationships · Source of Knowledge · Exposure to Information · "Judicial Seminars" · Employment Interests · A Duty to Sit? · Financial Interests · Lawyer Relatives · Law Clerks · Judge's Prior Affiliation · Manipulation of Disqualification · Judge's Duty to Reveal · Waiver
Expressions of Gender, Racial and Other Bias
In Re Marriage of Iverson - TC found that a premarital agreement signed by the parties was valid. Cheryl challenges the granting of a protective order limiting discovery and the interpretation of the agreement. Cheryl signed the prenup but never discussed the contents of the agreement with an attorney before she signed it. Judge made some comments about Cheryl's husband. - B/c of judge's preconceptions about the parties it was impossible for Cheryl to receive a fair trial. The court found a "predetermined disposition" to rule against Cheryl b/c she's a woman. - SC has directed that "the trial of a case should not only be fair in fact, but it should also appear to be fair." - Judge's use of language indicated gender bias and the judge used gender-based stereotypes in his decision making process. Matter of Bourisseau - respondent a judge participated in a telephone interview with a newspaper reporter who solicited his views on the Parental Rights Restoration Act. He made remarks that were criticized as insensitive and racist. The judge's remarks called into question the impartiality of the judiciary, and exposed the judicial system to contempt and ridicule.
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- Such erosion of public confidence in the judiciary is clearly prejudicial to the admin of justice. - Judge was disciplined by a public censure in response to the remarks. COURTROOM BIAS: · Judge shall require "lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others." - It does not "preclude legitimate advocacy" when any of the attributes on the list "or other similar factors are issues in the proceeding." EXCLUSIONARY ORGANIZATIONS: · "A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin."
Control of Quality: Reducing the Likelihood of Professional Failure
ADMISSION TO THE BAR (1) ABA accredited law school graduate (2) Bar exam (3) Moral character (4) Residency requirement (5) Principal office requirement - CA doesn't have this. This is a less restrictive means of meeting the residency requirement. What are legitimate quality control objectives? What's the practice of law and who can regulate that? BAR ADMISSION IS STATE BY STATE. 1. GEOGRAPHICAL EXCLUSION Supreme Court of New Hampshire v. Piper - D lives in VT close to NH. She applied to take the NH bar exam. She expressed intent to become a NH resident. The NH Board said that she would have to establish a home address in NH prior to being sworn in. Her request to live in VT was denied. She then petitioned to the NH SC to become a member of the bar, but the SC denied her request. - Purpose of P&I is to create a national economic union. Therefore, NH may not impose a regulation that is going to discourage US from acting as an economic union. - P&I clause requires that non-residents to be treated equally to residents. - Held: P&I clause protects nonresidents to practice law in other states. The court rejected the argument that lawyers somehow are different (state had argued that lawyers are officers of the court). - The Clause does not preclude discrimination against nonresidents where there is a substantial reason for the difference in treatments and the discrimination practiced against nonresidents bears a substantial relationship to the State's objective. The State doesn't advance either. - State's argument for justifying refusal to admit nonresidents is that nonresident members would be less likely (i) to become, and remain, familiar with local rules and procedures; (ii) to behave ethically; (iii) to be available for court proceedings; and (iv) to do pro bono and other volunteer work in the State. - The court said that the state neither advances a "substantial reason" for its discrimination nor demonstrates that the discrimination bears a close relationship to its objectives. The "New Jersey" Problem · Reciprocity admission addresses another way for lawyers to be admitted: admitted by motion by having good standing in another state's bar. (All states have reciprocity requirements.)
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2. GEOGRAPHICAL RESTRICTION Supreme Court of Virginia v. Friedman - Friedman has a law office in Virginia. Friedman lives in Maryland. Friedman applied for bar admission on motion under a Virginia statute that requires permanent residency in Virginia for application on motion, otherwise the applicant must take and pass the bar exam. The state denied her request because she was not a resident. - Whether the residency requirement for admission on motion in Virginia (without having to pass the Virginia bar exam) violates the Privileges and Immunities clause. Yes. - In Piper the court held that a state can not discriminate against a non-resident who has taken and passed the bar exam. However, Piper also stands for the proposition that a non-resident can not be prevented from doing business in state terms of substantial equality with residents unless the state has a substantial reason for such discrimination and the discrimination is closely related to such reasons. - Here, although the state may have a substantial enough interest in ensuring the high quality of the state bar, it has not met its burden in proving that the residency requirement is closely tailored to achieve that end. The state could choose the less burdensome alternative of requiring mandatory CLE or pro-bono work; state cannot limit motion to residents. 3. EDUCATION AND EXAMINATION
4. CHARACTER INQUIRIES In Re Mustafa - very active student in law school; he wrote organization checks for his personal use, but intended to repay; he took bar, passed it; he confessed to school and committee about what happened and he reimbursed the school. - In order to gain admission to the Bar, an applicant must demonstrate "by clear and convincing evidence, that the applicant possessed good moral character and general fitness to practice law in D.C." - Court denied his application for admission to bar; Court said had he been an attorney he would have been disbarred; Court usually gives deference to the committee, but since it was such a short time between the crime and the examination, they did not give deference. - At present, the court was not persuaded that Mustafa possessed those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observation of fiduciary responsibility that have been described as the moral character necessary for the practice of law. Frequently Cited Grounds for Delaying or Denying Admission to the Bar · Criminal conduct - Felony convictions involving moral turpitude is automatic disbarment or automatic denial. · Lack of candor in the application process · Dishonesty or lack of integrity in academic settings · Mental health - ADA now prohibits questions regarding mental health. · Financial probity · Applicant's private life Procedures Regarding Character Inquiry · Applicants who are denied bar admission b/c they lack good moral character are entitled to a hearing. 5. EXPERIENTIAL REQUIREMENTS
6. ADMISSION IN A FEDERAL SYSTEM · To become a member of the federal bar admission you have to be a member of the bar of that state.
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In re Roberts - challenged a rule of the federal DC in NJ that limited membership in the court's bar to members of the NY bar. Court held that tying DC admission to state bar membership tends to protect interests of the public. · US SC bar - someone needs to sponsor you who is already a member of the US SC bar. TRANSIENT LAWYER AND MULTI-JURISDICTIONAL FIRMS: LOCAL INTERESTS CONFRONT A NATIONAL BAR CA Rules: Effective 11/1/04: · In-house counsel - when you change residency you don't necessarily have to take the bar again b/c you're doing the same thing but you're living somewhere else. (corporate or gov't) - corporate attorneys cannot go into court. They will usually supervise others. · Legal services attorney - legal aid attorneys (broadest) · Litigation attorneys (under certain circumstances) - those temporarily in CA. · Non-litigation attorneys (under certain circumstances) - those temporarily in CA. M.R. 5.5 - Unauthorized Practice of Law; Multi-Jurisdictional Practice of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall NOT: (1) Establish an office or other systematic and continuous presence in this jurisdiction of the practice of law; or (2) Hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. (c) A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) Are undertaken on association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) Are in or reasonably related to pending or potential proceeding in this or another jurisdiction, if the lawyer, or a person assisting him is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) Are in or reasonably related to a ADR proceeding, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer's practice and are not services for which the forum requires pro hac vice admission; OR (4) Arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. (d) A lawyer admitted in another US jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) Are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; OR (2) Are services that the lawyer is authorized by federal or other law to provide in this jurisdiction. (E.g. patent law) 1. ADMISSION PRO HAC VICE · Pro hac vice admission: ―for this time only‖; out-of-state attorney seeks permission to practice in a state just for a specific case. Leis v. Flynt - Flynt wanted a good attorney from out of state so he got B; but B was not allowed to represent after a denial of PHV; petitioners are the judges of Ohio court and Hamilton county prosecutor; Making motion to appear PHV b/c other attorneys wouldn't represent Flynt b/c the culture is conservative. - Whether denial of PHV application is constitutional? NO
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- P contends that the asserted right of an out-of state lawyer to appear PHV in an Ohio court does not fall among those interests protected by the 14th. - There is no const. right to PHV; No need for courts to justify denial of admission of PHV. - Denial of PHV admission is discretionary. 2. SERVICES OTHER THAN LITIGATION · Non-litigation practice includes: ADR or transactional practice (e.g. drafting wills or trusts). - Boundaries b/w what's authorized practice and what's not is not clear. Unlawful practice of law CA Statute - § 6125 - Necessity of Active Membership in State Bar No person shall practice law in CA UNLESS the person is an active member of the State Bar. · Non-lawyers -> public protection AND lawyers not admitted to the State Bar -> bar regulation Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court - NY firm was representing ESQ in an action against tandem; nobody in firm was licensed to practice in CA; Attorneys traveled to CA a few times during representation; filed prelim papers for arbitration that would take place in ca; ESQ is a CA corp.; arbitration would be governed by CA law and so would fee agreement; ESQ argues that they do not have to pay the firm b/c of its unauthorized practice. - Issue: Whether an out of state law firm not licensed to practice law violated §6125 when it performed legal services in CA for a CA-based client under a fee agreement stipulating that CA law would govern all matters in the representation. - Court concludes that to the extent that P practiced law in CA w/o a license, it engaged in the unauthorized practice of law in this state. TEST: whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the CA client that included legal duties and obligations. What is practice of law? - Doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure. This includes legal advice and legal instrument and contract preparation whether or not these subjects were rendered in the course of litigation - Unauthorized practice of law is practicing in a state that you do not have a license to practice in. MAIN POINTS enough to create minimum contacts with the forum state for jurisdiction: · CA client · CA law governing dispute · Arbitration in CA · Visited clients in CA FEE ISSUE: · Any fee agreement based on such illegal activity is not subject to being collected. · The severability doctrine may allow it to receive its NY fees generated under the fee agreement if the Court concludes that the illegal portions of the agreement pertaining to the practice of law in CA may be severed from those parts regarding services performed in NY. Some Other Decisions re: Unauthorized Practice · Ranta v. McCarney - MN lawyer who advised a ND businessman on federal tax matters could not collect a fee for work done during frequent trips to ND, but only for work he did in MN.
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· You can advise X who's out of state from your own state as long as there is a nexus to your state. ETHICAL DUTY OF COMPETENCE M.R. 1.1 - Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. CONTINUING LEGAL EDUCATION SUPERVISORY RESPONSIBILITIES M.R. 5.1 - Responsibilities of Partners, Managers, and Supervisory Lawyers (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to M.R. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the M.R. (c) A lawyer shall be responsible for another lawyer's violation of M.R. if: (1) The lawyer orders or with knowledge of the specific conduct, ratifies the conduct involved; or (2) The lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. M.R. 5.2 - Responsibilities of a Subordinate Lawyer (a) A lawyer is bound by M.R. notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate M.R. if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. · If a lawyer did not have the knowledge required to render conduct a violation of the Rules and he was acting in a supervisor-subordinate relationship, the supervisor may assume responsibility for making the judgment. M.R. 5.3 - Responsibilities Regarding Non-lawyer Assistants (a) Give reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) Lawyer makes reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; AND (c) Lawyer shall be responsible for conduct of such a person that would be a violation of M.R. if engaged in by a lawyer if: (1) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; OR (2) The lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequence can be avoided or mitigated but fails to take reasonable remedial action. UNAUTHORIZED PRACTICE OF LAW Professional Adjusters Inc. v. Tandon - D had a fire loss on their mobile home and they had a policy insurance to cover the loss, but D felt that the figure that USF&G offered to settle the claim was unacceptable. D then hired P to handle the case against USF&G. USF&G submitted a claim to GAB Service, Inc and P received a settlement amount higher than the first one.
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- Here P was acting as an attorney for D by submitting a figure which they would deem acceptable for their loss and contemplating in return a response from the insurance carrier that would effect the settlement. - P's complaint was based on allegations of a K obligating Ds to pay a contingent amount for services by P in adjusting the settlement of a claim of D's against their insurance company, USF&G. - Case dealing with UPL laws and lawyers. - You can't enforce the K b/c the representation is a skill that requires the practice of law and adjusters can't act as lawyers. - Insurers can use non-lawyers adjusters to negotiate claims; an insured may not. SPECIALIZATION
Control of Quality: Remedies for Professional Failure
MALPRACTICE AND BREACH OF FIDUCIARY DUTY
LAWYER MALPRACTICE THEORIES CONTRACT THEORIES BREACH OF FIDUCIARY DUTY
TORT THEORIES
(1) Attorney-Client Relationship (1) Attorney-Client Relationship - restitution theory (2) Duty of Care (Prof. Neg.) (2) Contractual Duty - profits or disgorgement fees (3) Breach (Prof. Neg.) - CA allows punitive damages (4) Causation (5) Damages · TORT: A-C relationship is created whenever an individual seeks and receives legal advice from an A in circumstances in which a reasonable person would rely on such advice. · CONTRACT: Requires the rendering of legal advice pursuant to another’s request and the reliance factor, in this case, where the advice was not paid for, need be shown in the form of promissory estoppel.
1. LIABILITY TO CLIENTS Togstad v. Veseley, Otto, Miller & Keefe - medical malpractice; the wife went to an attorney; she gave him some facts, she did not have the medical records (client is not at fault for having all of the facts); initial meeting lasted for about 1hr.; A told her that I do not think you have a case, I will get back to you if there is a case. He did not charge her nor give her advice, but wife denies that Miller told her that his firm did not have expertise in the medical malpractice field. Standard for attorney malpractice: - A-C relationship (duty) - C sought and received legal advice from A under circumstances, which made it reasonably feasible to A that she would be injured if the advice were negligently given. - Negligence (breach of duty) - Should have checked the medical records and he should have told her about the SOL; reasonable for a jury to determine that A acted negligent. A who is given facts of a case has to inform C of all possible c/a’s of the case and of all the potential liabilities of the case - Proximate cause - of P's damages & BUT FOR conduct, would have been successful in prosecution of D. But for negligence conduct of A (not researching before given his opinion) there wouldn't have been this loss to P (P would have been successful against the doctors). - She did know about SOL, so her medical malpractice case was within a legal malpractice case. What P would have won in the medical malpractice case and then she would have to show a connection with the legal malpractice case.
WHAT IS THE REQUIRED STANDARD OF CARE?
· Ordinary prudence is the standard; failure to do the research can violate it. · It's not a mere error of judgment
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· Lawyer obligated to exercise "that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful, prudent lawyer in the practice of law in this jurisdiction. · Lawyer who proclaims to be an expert in a particular field will be judged by the standard of specialty. · Mutuelle Unies v. Kroll & Linstrom - When a lawyer does recommend a settlement, he will have been expected to have done the legal and factual research necessary to determine its adequacy. · Duty of care likely to include a duty to do research before rendering a legal opinion, even if the lawyer declines to take the case.
FRAUD:
· Baker v. Dorfman - P hired D to sue NYC after its health dept. erroneously diagnosed him as HIV positive. D failed to file the action before the limitations period expired, and Baker lost his claim against the City. D had lied to P about his qualifications, including education and bar memberships. - Court rejected D's claim that it was mere puffery. - Court affirmed P's judgment for compensatory and punitive damages.
BREACH OF FIDUCIARY DUTIES:
· If a client suffers a loss as a result of a lawyer's conflict of interest, the client will be able to recover for breach of fiduciary duty or in malpractice. · You don't have to show the same type of damages as in breach of K or professional negligence.
IS SEX WITH CLIENTS A BREACH OF FIDUCIARY DUTY?
Tante v. Herring - Ds hired P to pursue a claim for social security disability benefits for Mrs. D. D filed an action against P for legal malpractice, breach of fiduciary duty and breach of K, all pertaining to P's adulterous relationship with Mrs. D. - No evidence P's conduct had any effect on his performance as an attorney. - D claims that P misused the confidential info regarding wife's medical/ psychological well being - P owed his client the utmost good faith and loyalty. By using the info solely b/c of the A-C relationship to his advantage and to Ds disadvantage, he breached that fiduciary duty. - You can recover for IIED or punitive damages for breach of fiduciary duty. · McDaniel v. Gile - Court upheld IIED and malpractice against the lawyer and recognized malpractice b/c lawyer used the threat of refusing service if sexual favors were not granted. CA Rule - 3-120 - Sexual Relations with a Client 2. THIRD PARTIES AS "CLIENT-EQUIVALENTS" · Someone stands in the shoes of the client so that they can impose civil liability on attorney for tort, K, or breach of fiduciary theories. · Third parties -> third party beneficiary concept · E.g. drafting of wills -> 3rd party seeks to hold A liable for lack of care in performing a legal service. · Pelham v. Griesheimer - liability may turn on whether P sues in K or tort. D had represented a woman in a divorce proceeding. D changed the insurance policy to his second wife instead of the children per the husband's request. Court read the complaint to allege negligence for failing to notify the husband's employer or the insurance company of the requirement of the divorce decree and failed to advice their mother to make such notification. - D had no duty to the P's children. A non-client P "must prove that the primary purpose and intent of the A-C relationship" was "to benefit or influence a third party." 3. VICARIOUS LIABILITY PROVING MALPRACTICE
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1. USE OF ETHICS RULES AND EXPERT TESTIMONY Smith v. Haynsworth, Marion, McKay & Geurard - P contracted with Bill, the developer, to purchase lots on Wild Dunes. 2 of the investors were partners in D. Haynsworth represented Bill in his acquisition and P in the transaction with Bashor paying their attorney's fees. P sued D for malpractice. - P in a legal malpractice action must generally establish the standard of care by expert testimony. - The court here holds that in appropriate cases the RPC may be relevant and admissible in assessing the legal duty of an attorney in a malpractice action. - In the context of legal malpractice, the court has expanded the relevant geographical region to create a statewide standard of care. - You can't use the ethics rules as negligence per se fashion. - The ethical rules set the minimum standard of competency to be displayed by all attorneys, a violation thereof may be considered as evidence of breach of the standard of care. - Non-bar members or non-licensed practitioners can testify concerning ethical obligations.
ETHICAL VIOLATION AS A BASIS FOR REDUCTION OR DENIAL OF FEES:
· There are some ethical violations, like the Hendry case, that no recovery from quantum meruit. · You can avoid fee liability when a lawyer violates ethical duties even if you have no injuries. · For forfeiture and disgorgement, client need ONLY show misconduct for this relief, NOT proof of harm. · Disgorgement - client's ability to get back fees client has already paid. - Disgorgement comes from remedies. A has to give $ back b/c he earned those fees while committing an ethical violation towards C. · Forfeiture - client does not pay for fees he hasn't already paid for. Hendry v. Pelland - breach of fiduciary duty (ethical violation) - P was represented by D. There were 5 Ps. Court said that D should not have represented all of the Ps without getting their consent. Violated M.R. 1.7 - conflict of interest - multiple client rep, unless it was in writing. Transaction went sour and they lost money. P comes back to sue A. To the extent that P sought disgorgement of legal fees, P just needed to prove only that D breached his duty of loyalty, not that this breach proximately caused them injury. $89K fees paid and $37K fees owed. - Most jurisdictions, clients must prove injury and proximate causation in a fiduciary duty claim against their lawyers if they seek compensatory damages, not if, as here, they seek only forfeiture of legal fees; BUT you don't have to prove injury or PC if the claim is on a breach of the duty of loyalty for forfeiture of legal fees. - Forfeiture fees deter attorney's misconduct. Forfeiture reflects not the harms clients suffer from the tainted rep, but the decreased value of the representation itself. - Court concluded clients suing their A for breach of fiduciary duty of loyalty and seeking disgorgement of legal fees as their sole remedy need prove only that their attorney breached that duty, not that the breach caused them injury. · Image Technical Service, Inc. v. Eastman Kodak Co. - Coudert Bros. had represented the antitrust P against D but was then disqualified on D's motion after the judge concluded that Coudert was representing D on another matter at the same time and that the consent Coudert cited was inadequate. P wins and seeks counsel fees under fee shifting provisions, but D refuses to pay. - P argued that the forfeiture of Coudert's fees should not be retroactive to cover work done before disqualification. Court disagreed. - If Coudert had breached a duty of loyalty to P only, there would be a better argument for allowing P to recover and retain the fees… But here it would be injustice to allow P to receive $400,000 from D, the party injured by the ethical violation. 2. CAUSATION AND DEFENSES · In civil cases, causation and defenses is supported by the "but for" test or the "substantial factor" test.
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Peeler v. Hughes & Luce - causation in a criminal case - P was an officer of a corporation who traded government securities. P was suspected of engineering illegal tax write-offs for wealthy investors. P paid D a non-refundable retainer fee and agreed to pay any hourly fees exceeding that amount. She pled guilty to all charges and they shortened her sentence. P claims that she was not told about the absolute transactional immunity given to her. - P who has been convicted of criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise. - It is the illegal conduct rather than the negligence of a convict's counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned. - The lost opportunity of an admittedly guilty person to escape prosecution because of her lawyer's negligence does not override the public policy against shifting the consequences of a crime to a third party. · If this was a non-criminal case, and A did not offer a settlement offer to C -> A would be held responsible for the losses suffered by C. · Criminal cases - ACTUAL INNOCENCE STANDARD - you have to show that C is truly innocent to be able to recover for malpractice fees from A. (You would have to have a trial within a trial) 3. DAMAGES OR INJURY · Regardless of theory, clients are limited to economic losses -> losses that are compensable in $$. - Hardest question is proving that these losses occurred b/c of A's negligence. · In legal malpractice claims, you can't recover non-economic losses -> pain and suffering, emotional distress or loss of consortium. · Exceptions when non-economic losses can be recovered: - Cases for IIED claim - Defamation claim - Punitive damages BEYOND MALPRACTICE: OTHER GROUNDS FOR ATTORNEY LIABILITY TO CLIENTS AND THIRD PARTIES · In an adversarial proceeding, A has no duty to 3rd party non-clients b/c of public policy since it would inhibit A too much. Thus, A has no duty to 3rd party non-clients in litigation. · BUT in transactional practice, if A does represent all of these clients, as long as A waives all conflicts, A has a duty to 3rd party non-client.
TRANSACTIONAL CASE:
Petrillo v. Bachenberg - Rohrer owned undeveloped land. Herrigel represented Rohrer and Rohrer hired Heritage to perform tests on a K of sale to Land Resources. When K with LR failed, Rohrer listed the property with D. Herrigel admits he possessed the reports and delivered the report to D. D then sold the property to P. Herrigel did not inform P's attorney of the test results that had been omitted from the composite report. P did his own tests and the K was null and void. - P's claim against Herrigel is one of economic negligence. - Courts have imposed a duty on an attorney who prepares an instrument with the intent that third parties will rely on it -> Herrigel had a duty to P. - Attorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the A's representation and the non-clients are not too remote from the As to be entitled to protection. Restatement § 51 - Liability of lawyer's to a non-client. (1) Non-client's reliance (2) Non-client will benefit from representation
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M.R. 2.3 - Evaluation for Use by Third Persons (a) Lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of you lawyer's relationship with the client. (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6. DISCIPLINE 1. PURPOSES OF DISCIPLINE · Discipline protects the public and deters unethical behavior (lawyer regulation). · Discipline is a major portion of the State Bar's responsibility. 2. SANCTIONS · Disbarment (attorney can reapply after 7 years) - State Bar will enforce this system. · Suspension of lawyer's license (up to 2 years) · Reprimand or censure (public or private) 3. 4. DISCIPLINARY SYSTEMS
ACTS JUSTIFYING DISCIPLINE - [ETHICAL RULES VIOLATION -> GROUNDS FOR DISCIPLINE]
(A) DISHONEST AND UNLAWFUL CONDUCT CLIENT TRUST ACCOUNT VIOLATIONS: In Re Warhaftig - DISBARMENT - An audit was conducted and it disclosed that D continually issued check
to his own order for fees in pending real estate matters. He would replace the 'advance' when the funds were received for the real estate closing. D operated an advance fee scheme. D took funds from his trust account before he had any legal right to those monies. He was effectively borrowing money from one group of clients in order to compensate himself, in advance, for matters being handled for other clients. - D violated the rules governing attorney conduct. - Knowing misappropriation is the heart of the violation - lawyer not entitled to the money until the legal work was finished for that client. - Lawyers are trustees and so they will hold enough money as property for their clients. RULE: Disbarment is required of an attorney who knowingly misappropriates a client’s funds. M.R. 1.15 - Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account, maintained in a state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other prop shall be kept by the lawyer and shall be preserved for a period of 5 years after termination of the representation. (b) A lawyer may deposit his own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose (c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
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(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon requested by the client or third person, shall promptly render a full accounting regarding such property. (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
ASSISTING CLIENT IN CRIME OR FRAUD: In Re Austern - PUBLIC CENSURE - D represented Viorst and a corporation largely controlled by Viorst. D
was unable to arrive at the beginning of the closing so one of D's partners represented Viorst. Viorst and the purchasers drafted an escrow agreement in order to facilitate closing on that date. D signed the agreement and he said that he was pressured to agree to act as the co-escrow agent and that he ultimately yielded and signed the agreement that same evening. Purchasers were willing to close on the condition that V deposit $10,000 into escrow to be available to complete the work on the units if V and H did not perform; Escrow was under 2 escrow agents (R for seller and spevak for buyers); R gained possession of the check; V told R in hall that there were no funds in the account upon which the check was written….but R did not halt closing process; V got a 10,000 non-refunable deposit from a buyer; He gave the check to R; R opened an interest bearing savings account and deposited the check - D was under an affirmative duty to withdraw from his rep of Mr. Viorst once he knew that the escrow account Viorst purported to establish to induce settlement was funded with a worthless check. - D had a fiduciary duty to the client's purchasers to protect their investment; instead, he aided his client in inducing the buyers to proceed to settlement although there was no escrow protection. - Once R knew escrow that was used to induce closing was supported by a worthless check, he should have withdrawn and told the other buyer b/c he was the co-agent of escrow account. RULE: Client is not entitled to affirmative assistance by A in conduct that A knows is illegal or fraudulent M.R. 1.16 - Declining or Terminating Representation (a) Except as stated in (c), a lawyer SHALL NOT represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) The representation will result in violation of the rules of professional conduct or other law; (2) The lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; OR (3) The lawyer is discharged. (b) Except as stated in (c), a lawyer MAY withdraw from representing a client if: (1) Withdrawal can be accomplished without material adverse effect on the interests of the client; (2) The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) The client has used the lawyer's services to perpetrate a crime or fraud; (4) The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) The client fails substantially to fulfill an obligation (e.g. client doesn't pay his fees) to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; OR (7) Other good cause for withdrawal exists.
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(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. M.R. 1.2(d): Scope of Representation and Allocation of Authority Between Client and Lawyer A lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(B) NEGLECT AND LACK OF CANDOR
· Neglect of client matters is a recurrent basis for discipline, regardless of the client's motives. · Sins of omission are more likely to meet with disciplinary committee disapproval than acts of negligence
(C) SEXUAL RELATIONS WITH A CLIENT Matter of Tsoutsouris - 30 DAY SUSPENSION - D engaged in a sexual relationship with his client while he
was representing her in a dissolution matter. D was hired to represent P in child support modification action and then D was hired for a dissolution action against her 2nd husband. - 1.7(b) prohibits rep of a client if the rep may be materially limited by the lawyer's own interest. - There was no evidence that D's sexual relationship affected the A-C relationship. C hired D to handle another legal matter for her after the sexual relationship ended but before disciplinary charges was filed against the D… BUT the violation had already occurred during the first representation. - Duty of loyalty - A has to provide impartial, objective professional opinion. When emotions get involved your judgment may be impaired. M.R. 1.8(j) - A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the A-C relationship commenced.
(D) THE LAWYER'S "PRIVATE" LIFE AND CONDUCT UNRELATED TO CLIENTS
· Generally, the courts don't sanction purely "private" conduct, but courts will sanction when there's domestic violence, voyeurism.
(E) RACIST AND SEXIST CONDUCT Matter of Jordan Schiff - PUBLIC CENSURE - Allegations of misconduct during a deposition. Deposing
witness Morales in a personal injury case, who was represented by D's firm. D made degrading and vulgar comments to Ms. Mark, witness's attorney. D was trying to intimate counsel. - Sexual harassment is unacceptable behavior and the public must understand that the profession abhors such behavior and will not condone it. - Judges are required by their Code of Conduct to sanction these attorneys for this behavior.
(F) FAILURE TO REPORT ANOTHER LAWYER'S MISCONDUCT
M.R. 8.3 - Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of M.R. that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
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(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of info otherwise protected by Rule 1.6 or info gained by a lawyer or judge while participating in an approved lawyers assistance program. M.R. 8.4 - Misconduct It is professional misconduct for a lawyer to: (a) Violate or attempt to violate M.R., knowingly assist or induce another to do so, or do so through the acts of another; (b) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) Engage in conduct that is prejudicial to the administration of justice; (e) State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate M.R.; (f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. M.R. 8.5 - Disciplinary Authority: Choice of Law (a) Disciplinary Authority. - A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. - A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. - A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) For conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; AND (2) For any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur. 5. DEFENSES DISCIPLINARY PROCEDURES DISCIPLINE IN A FEDERAL SYSTEM
6. 7.
CONSTITUTIONAL PROTECTION IN CRIMINAL CASES Strickland v. Washington - D challenged his death sentence on the ground that the lawyer who represented him at the sentencing hearing was constitutionally ineffective. - A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. - We said in Cuyler v. Sullivan that if there is actual conflict then we can presume ineffective assistance of counsel, but when dealing with the 6th we have 2 requirements to meet. - D must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. 2 components of whether counsel was constitutionally ineffective:
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(1) Counsel's performance was deficient; there has to be reasonable effective assistance - looking for serious attorney error (2) Deficient performance prejudiced the defense - reasonable probability of a different result -> probability sufficient to undermine confidence in the outcome. · Strategy decisions vs. Failure to investigate or interview witnesses - Does it meet federal constitutional standard? If not, it could lead to conviction being overturned
INADEQUATE TIME TO PREPARE:
United States v. Cronic - D received 25 year sentence for mail fraud involving the transfer of more than $9 million. A week after D's lawyer was appointed; the attorney asked for a 30 days continuance, TC granted 24 days instead. SC held that these facts alone could not support a finding of ineffectiveness. - A trial is unfair if the accused is denied counsel at a critical stage of his trial. - If counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. - So when surrounding circumstances justify a presumption of ineffectiveness can a 6th Amendment claim be sufficient without inquiry into counsel's actual performance at trial. RULE: Cronin rejects the idea that there is a presumption that if you don't have a specific amount of time to prepare your case then there is ineffective assistance of counsel. · Morris v. Slappy - D's court-appointed lawyer was hospitalized for emergency surgery shortly before D's trial for serious felonies was about to begin. Public defender assigned D substitute counsel. D protested the change in counsel. There was no claim that the new lawyer was constitutionally ineffective. - D's argument had no merit. - "No court could possibly guarantee that D will develop the kind of rapport with his attorney privately retained or provided by the public - that D likes. It just has to meet the requirements of the 6th Amendment guarantees.
Control of Quality: Lay Participation in Law Business (And Law Firm Ancillary Services)
M.R. 5.4 - Professional Independence of a Lawyer (a) A lawyer or law firm shall not share legal fees with a non-lawyer, except that: (1) An agreement by a lawyer with the lawyer's firm, a partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons; (2) A lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17 pay to the estate or other representative of that lawyer the agreedupon purchase price; (3) A lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (4) A lawyer may share court awarded legal fees with a non-profit organization that employed, retained or recommended employment of the lawyer in the matter. (b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
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(1) A non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) A non-lawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) A non-lawyer has the right to direct or control the professional judgment of a lawyer. NONPROFIT ENTITIES AND INTERMEDIARIES 1. PUBLIC INTEREST ORGANIZATIONS NAACP v. Button - 1956, VA legislature passed certain laws that would have made it more difficult for NAACP to represent school desegregation Ps. A federal court invalidated 3 chapters of these laws and ordered NAACP to go to state court for authoritative interpretation of the 2 remaining chapters. - Chapter 33, a person who advises another that his legal rights have been infringed and refers him to a particular attorney or group of attorneys for assistance has committed a crime, as has the attorney who knowingly renders assistance under such circumstances. - Court held that Chapter 33 violates the 14th amendment by unduly inhibiting protected freedoms of expression and association. - VA argued that NAACP (non-lawyers) was going to make the decisions for the clients rather than the client/lawyer; Lawyers independence will be compromised by non-lawyer; but the aims and interests of NAACP have not been shown to conflict with those of its members and nonmember Negro litigants RULE: No monetary stakes are involved and so there is no danger that attorney will subvert the paramount interests of his client to enrich himself or an outside sponsor. RULE: Social organizations may encourage and solicit litigation under their freedom of expression rights; the rights of a group to engage in joint expressive activity get special 1st amend protection (freedom of association). 2. LABOR UNIONS (MEMBER WELFARE)
DIFFERENCES BETWEEN LABOR UNIONS AND ORGANIZATIONS LIKE NAACP:
(1) NAACP offering legal help to outsiders; labor unions seeking to provide lawyers for their members. (2) NAACP tries to vindicate constitutional rights; labor unions deal with claims re: worker's comp or disability claims (prosaic claims). (3) NAACP goal of winning judicial recognition for the claim; unions plans goal is to keep down the cost of pursuing a member's claim. Brotherhood of Railroad Trainmen v. Virgina ex rel. Virginia State Bar - Union's dept. of legal counsel advised injured members not to settle claim without consulting counsel. Dept. also recommended particular counsel. - SC held that the 1st and 14th protect the right of the members to maintain and carry out their plan for advising workers who are injured to obtain legal advice and for recommending specific lawyers. United Mine Workers v. Illinois State Bar Assn. - Union employed a lawyer on a salary basis to handle members' worker's compensation claims before a state commission. - The litigation has nothing to do with political maters of acute social moment… but the First Amendment does not protect speech and assembly only to the extent it can be characterized as political. United Transportation Union v. State Bar of Michigan - D brought an action to enjoin the members of the Brotherhood of Railroad Trainmen from engaging in activities to protect themselves from excessive fees at the hands of incompetent attorneys in suits for damages under the Federal Employers' Liability Act.
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- Union recommended selected attorneys to its members and their families that secured a commitment from those attorneys that the maximum fee charged would not exceed 25% of the recovery and it recommended Chicago lawyers to represent Michigan claimants. - Court doesn't follow NAACP case. - Union's have a right to band together to protect their members and they can adopt schemes of this sort b/c of the 1st amendment. The injunction can't stand for the following reasons: (1) Court has upheld the commonsense proposition that such activity is protected by the 1st amendment. (2) Union staff can gather evidence to assist the injured worker. (3) Members have a right to help and advise each other in securing effective legal representation, there can be no doubt that transportation of injured members to an attorney's office is within the scope of that protected activity. (4) Court can't accept the concept of equity jurisdiction that would open the courts to claims for injunctions against "temptation," and would deem potential "temptation" to be a sufficient basis for the issuance of an injunction. (5) Fees - Hard to believe a court would deny a cooperative union of workers the right to protect its injured members, and their widows and children, from the injustice of excessive fees at the hands of inadequate counsel. NON-PROFIT ORGANIZATIONS · There was the same type of structures of lay intermediaries as we saw in the political advocacy setting and with labor unions. FOR-PROFIT ENTERPRISES ABA Opinion 355 - service x provides prepaid legal services; someone pays service company to get access to legal rep at time in future; preparing for legal services; client comes along and says I do not know if I have a case, but I anticipate it; rather than retain individual firms; the people who run the service might be lawyers, but ppl working for them will be attorneys. - Professional independence - sponsoring entity can't interfere with the lawyer's exercise of IPJ. Plan sponsor should not have any dealings with plan subscribers on legal issues after their matters have been referred to a lawyer. The agreement should be in writing. No provision may interfere with the lawyer's professional judgment. - Confidentiality - upholding rule 1.6 - A lawyer should not participate in a plan which requires the lawyer to disclose information relating to the representation except in compliance with Rule 1.6. - Conflicts of Interest - Sponsor should not impose restrictions upon a lawyer's ability to represent a member once the member becomes a client of the lawyer. - Fee Arrangement - Lawyer can participate in a for-profit prepaid legal service plan, but the independence of the lawyer's professional judgment and client confidentiality must be assured. M.R. 5.7 - Responsibilities Regarding Law-Related Services (a) A lawyer shall be subject to M.R. with respect to the provision of law-related services, as defined in (b), if the law-related services are provided: (1) By the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; OR (2) In other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that the services are not legal services and that the protections of the client-lawyer relationship do not exist. (3) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.
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Free Speech Rights of Lawyers
PUBLIC COMMENT ABOUT PENDING CASES · There is a need to set limits in lawyer speech about pending cases. M.R. 3.6 - Trial Publicity (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing [SLMP STANDARD - LIKE CSI TEST - ABA trying to come up with something similar to clear and present danger test to meet the CSI requirement] an adjudicative proceeding in the matter [cannot hold press
conf about case when he knows public opinion will change and will poison jury pool]
(b) Notwithstanding (a) above a lawyer may state: [SAFE HARBOR PROVISIONS] (1) The claim, offense, or defense involved and, except when prohibited by law, the identification of the persons involved; (2) Information contained in a public record; (3) That an investigation of a matter is in progress; (4) The scheduling or result of any step in litigation; (5) A request for assistance in obtaining evidence and info necessary thereto; (6) A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest (7) In a criminal case in addition to (1) - (7): (i) The identity, residence, occupation and family status of the accused; (ii) If the accused has not been apprehended, info necessary to aid in apprehension of that person; (iii) The fact, time, and place of arrest; AND (iv) The identification of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such info as is necessary to mitigate the recent adverse publicity (d) No lawyer associated in a firm or gov't agency with a lawyer subject to (a) shall make a statement prohibited by (a). [VICARIOUS LIABILITY] Rule 3.6 - Comment 5 Certain subjects are more likely than to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. Gentile v. State Bar of Nevada - departed slightly from Rule 3.6 - Criminal D attorney attempted to counteract negative publicity by holding press conference in which he claimed that his client was innocent, the cops did it and they framed his client; Nevada state bar/P brought a disciplinary action that was upheld by the Nevada supreme ct (Nevada said he violated rule 177 that limits what you say in pretrial publicity) - ISSUE - May the speech of attorneys involved in a criminal case is more limited than that of the press at large if such limitation clearly gives notice to those whom it affects? - Majority holding - the NV rule was void for vagueness - you need to make sure that - Minority holding - NV did not have a SLMP standard. - Both of these holdings together struck down the discipline b/c it violated the first amendment rights of the lawyer.
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- Court said that M.R. 3.6 would pass constitutional muster. - Because statements were made 6 months before trial, the jury pool will have forgotten these statements by then. This was a crucial factor in the Court concluding that there was no prejudice. - No support for the conclusion that petitioner's statement created likelihood of material prejudice, or indeed of any harm of sufficient magnitude or imminence to support a punishment for speech. RULE: State ethic rules need to meet the SLMP standard for bar discipline. PUBLIC COMMENT ABOUT JUDGES AND COURTS 1. CRITICIZING THE ADMINISTRATION OF JUSTICE M.R. 8.2 - Judicial and Legal Officials (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct. · M.R. 8.2 is consistent with the rule set out in NY Times v. Sullivan. · First amendment does not protect speech that is false. · Snyder case - Snyder wrote a letter to a district judge and the judge did not appreciate the tone Snyder used. He wouldn't apologize as the judge requested he do so. The SC held that Snyder should not be suspended for conduct "unbecoming a member of the bar." - Court said "even assuming that the letter exhibited unlawyerlike rudeness, a single text - does not support a finding of contemptuous or contumacious conduct, or a finding that a lawyer is "not presently fit to practice law in the federal courts." - You can't justify suspension for 6 months because of one incident. ·Outside the courtroom, SC has protected the right to political speech. 2. CRITICIZING PARTICULAR JUDGES Matter of Holtzman - Petitioner who was a DA released a letter charging a Judge with judicial misconduct in relation to an incident that allegedly occurred in the course of a trial on criminal charges of sexual misconduct. Petitioner relies on DR 1-102A6: attorney shall not engage in any conduct that adversely reflects on attorney’s fitness to practice law. - P was disciplined (private reprimand) for publicizing this letter and disseminating it to the mass media. The info turned out to be untrue and no one checked the info. This established the falsity standard set out in NY Times. - Rather than an absolute prohibition on broad standards, the guiding principle must be whether a reasonable attorney, familiar with the code and its ethical strictures, would have notice of what conduct is proscribed. MANDATORY BAR MEMBERSHIP
Marketing Legal Services
DEFINING THE BORDERS: BATES AND OHRALIK · Commercial speech doctrine - speech related to business or commerce. - Commercial has first amendment protection. - This can't be prohibited entirely, but it can be regulated.
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- False, misleading or deceptive ads could be prohibited under the commercial speech doctrine. - If the commercial speech is truthful then it's not prohibited. M.R. 7.1 - Communications Concerning a Lawyer's Services A lawyer shall not make a false or misleading (commercial state interest that can be prohibited anyways) communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. <-----------------------------------------------------------------------------------------------------> Bates Ohralik (ads with prices for (in person solicitation of clients routine legal services) for pecuniary gain is prohibited)
NEWSPAPER ADVERTISEMENTS:
· Bates v. State Bar of Arizona - Court held that truthful advertising of "routine" legal services is protected by the First and Fourteenth amendments against blanket prohibition by a State. - These types of ads are protected by the commercial speech doctrine as long as prices are correct.
IN-PERSON SOLICITATION:
Ohralik v. Ohio State Bar Association - Attorney heard about car accident, and went to parents who said that kid should consent, so goes to kid and he says that kid consents, and then goes to passenger and solicits his business too. - The court held that the State may constitutionally discipline a lawyer for soliciting clients in person for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent. - In-person solicitation of professional employment by a lawyer does not stand on par with truthful advertising about the availability and terms of routine legal services, let alone with forms of speech more traditionally within the concern of the 1st. - The rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs. DEFINING THE CENTER: ZAUDERER, SHAPERO, AND PEEL 1. TARGETED ADVERTISEMENTS M.R. 7.2 - Advertising (a) Subject to the requirements of 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may: (1) Pay the reasonable costs of advertisements or communications permitted by this Rule; (2) Pay the usual charges of a legal services plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service that has been approved by an appropriate regulatory authority; (3) Pay for a law practice in accordance with Rule 1.17; AND (4) Refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) The reciprocal referral agreement is not exclusive, AND (ii) The client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. Zauderer v. Office of Disciplinary Counsel - A targeted ad to victims of a certain type of contraceptive– attorney placed an ad in newspaper publicizing his willingness to represent women who had suffered
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injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device. The ad listed the potential injuries and then says, if you or a friend has had a similar experience… The ads info was entirely accurate. - SC of Ohio prohibited targeted ads and it restricted the use of illustration and required disclosure of fees. - SC upheld OH's disclosure requirement that the contingent fee ads specify that the client might in any event be liable for costs. - SC upheld the ad - commercial speech doctrine. - These ads influence more than general written ads because they target a specific audience. - Court can't prohibit speech that is truthful - These ads were targeted because they focused on a specific problem (unlike yellow page ads) 2. TARGETED MAIL M.R. 7.3 - Direct Contact with Prospective Clients (a) A lawyer shall not by in person, live telephone or real time electronic contact (i.e. email) solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) Is a lawyer; OR (2) Has a family, close personal, or prior professional relationship with the lawyer (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by (a): (1) The prospective client has made known to the lawyer a desire not to be solicited by the lawyer; OR (2) The solicitation involves coercion, duress or harassment. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words ―advertising material‖ on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in (a)(1) OR (a)(2). (d) Notwithstanding the prohibitions in (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
TARGETED LETTERS:
Shapero v. Kentucky Bar Association - Attorney sent out a targeted mailing, and he had specific info about the targets/potential clients and how he could solve their legal problems. These are truthful and non-deceptive letters. - Issue: Can Bar prohibit, consistent with the First Amendment, sending out targeted letters? NO - Ct acknowledges a potential for isolated abuses, but this doesn’t justify restrictions on these types of solicitations. - Targeted, direct mail solicitation poses less risk of overreaching/ undue influence than in person. - Court says, unlike in-person solicitation, the issue isn’t about the client’s condition and his susceptibility to influence, rather the type of communication is important b/c the mode of solicitation is part of the cause of the evil that we are concerned with. 3. CLAIMS OF SPECIAL EXPERTISE M.R. 7.4 - Communication of Fields of Practice and Specialization (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
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Legal Ethics Outline
Amarkarian
(b) A lawyer admitted to engage in patent practice before the U.S. Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation. (c) Admiralty practice may use designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) The lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the ABA; AND (2) The name of the certifying organization is clearly identified in the communication. · Peel v. Attorney Registration - National Board of Trial Advocacy gave certifications for attorneys. P referred to himself as a civil trial specialist by the NBTA. Illinois forbids this because people might assume that the lawyer is licensed by the state as having special expertise in the area and it would mislead clients about the meaning of the certification. P violated IL version of 7.4. - Plurality opinion - Court concluded it was neither actually nor inherently misleading. - ABA now accredits organizations to certify lawyers as specialists in particular areas of practice, thereby enabling them to advertise their certifications. - Court saw this as commercial speech and this fell on the Bates side of the range. DEFINING THE METHODOLOGY DEFINING THE RULES SOLICITATION BY PUBLIC INTEREST AND CLASS ACTION LAWYERS In Re Primus - May a State punish a member of the Bar, who was trying to further political and ideological goals through associational activity, including litigation, advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a nonprofit organization with which the lawyer and her associates are affiliated. - Newspapers reported that pregnant mothers on public assistance in Aiken County, were being sterilized or threatened with sterilization as a condition of the continued receipt of medical assistance under the Medicaid program. - ACLU informed Primus, an attorney, about the info in the ad. Then Primus informed Williams about this free representation, but Williams decided not to sue. - SC held that solicitation of clients by public interest attorneys protected by First Amendment. - Organizations that band together to address grievances have the right to solicit client. - Motivated by politics, beliefs and ideas so it's ok; if motivated by pecuniary gain then not ok. - Case governed by M.R. 7.3 M.R. 7.5 - Firm Names and Letterheads (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of 7.1. (b) A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
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