Pro Responsibility Lecture[1]

Professional Responsibility Outline I. Duties to the Client (Clients Love Fierce Counsel) A. Confidentiality 1. Duty of confidentiality: L can’t reveal anything “related to the representation” of C without consent a. Rationale: maximize candor and trust, allowing adversarial system to work b. Applies regardless of whether C requested that the information be kept “confidential” or whether its revelation might harm or embarrass C c. Waiver must be in sufficiently clear and plain terms. 2. Distinguish attorney-client privilege a. Closely related, but narrower evidentiary rule b. A/C privilege allows C to refuse to testify and to prevent his lawyer from testifying in court about confidential communications between them or their agents c. Unlike the earlier Model Code, the current Model Rule of confidentiality applies whether or not the information is privileged (i.e. duty of confidentiality is broader) d. Scope of subject i. A/C privilege is an evidentiary privilege that covers only communications pertaining to legal services, not other subjects like business tactics or political consequences ii. Confidentiality is broader, and includes disclosures that could reasonably lead to discovery of confidential information by a 3rd party e. Source of information i. A/C privilege shields only information attained from the client or her agents ii. However, source of information does not matter for the duty of confidentiality f. Timing i. A/C privilege protects communications leading up to a formal A/C relationship and continues after C’s death  Under the *CA Evidence Code, the A/C privilege terminates when C’s estate is settled ii. Duty of confidentiality continues indefinitely after formal representation has ended 3. Exceptions to the duty of confidentiality a. Consent i. If C consents after consultation, L may reveal otherwise confidential information ii. L has “implied consent” to reveal what’s necessary to render legal services (e.g. revealing confidential information to the Patent Office to apply for a patent) b. Crimes i. Fraud or financial crimes  ABA: L may reveal confidential information to prevent future crime if C used or is using L’s services to commit the crime and disclosure would prevent or mitigate substantial financial loss  *CA has no exception to confidentiality for financial crimes ii. Death or substantial bodily harm  ABA: L may reveal confidential information if L reasonably believes disclosure is necessary to prevent reasonably certain death or substantial bodily harm  *CA: if reasonable under the circumstances, L must first make a good faith effort to persuade C not to commit the act and then inform C of L’s decision to reveal C’s confidences c. Defense: L may reveal confidential information necessary to establish a claim or defense in the following proceedings i. Malpractice ii. Disciplinary actions iii. C refuses to pay, forcing L to sue for fees iv. Seeking an ethics opinion d. If compelled by law, other controlling ethical duties, or final court order B. Loyalty: Conflicts of Interest 1. Duty of loyalty: if an interest of L, another client, or 3rd party materially limits or is directly adverse to loyal representation, L has a potential or actual conflict of interest a. L must not take on the representation unless: i. L reasonably believes that L can represent everyone effectively despite a potential conflict, or that an actual conflict will not adversely affect L’s representation; ii. L informs each affected client;  If the duty of confidentiality prevents L from fully disclosing information C needs to understand the conflict, then consent may not be possible iii. Client consents in writing; and iv. Consent is “reasonable”  If a reasonable lawyer would not advise the client to consent, consent is invalid  Because of this condition, some conflicts can never be corrected, even with consent  However, clients may easily waive some conflicts like imputed disqualification b. If conflicts emerge only after representation begins, disclose potential and actual conflicts as they arise, get further consent, and withdraw if consent is not reasonable c. Imputed disqualification: L and all members of L’s firm are treated as a unit for the purposes of conflicts i. Includes any group of lawyers that work together closely or share responsibilities (e.g., private firms, government agency offices, and corporate law departments) ii. *CA follows these rules for disqualification, but does not subject a lawyer to discipline for imputed conflicts under its ethical rules iii. Exceptions to imputed conflicts  When conflict arises from previous government service  When conflict of L arises from a purely personal relationship that would not affect the ability of other firm members to represent the client, an “ethical wall” may make representation reasonable by blocking off any contact on the matter between the L with the conflict and other lawyers of L’s firm d. Remedies i. Refuse to take the case ii. Advise multiple clients to get separate counsel or iii. Withdraw 2. Conflicts between L and C a. Interest in the subject of litigation i. L should not become “interested” in the subject matter of the litigation (e.g. proprietary interest in the cause of action) ii. Exceptions  Attorney’s lien on property to secure payment of fees  Work on a contingent fee basis b. Business transactions or adverse interests i. L may enter into business with C or obtain an interest adverse to C only if:  Terms are fair to C  Fully disclosed in understandable writing  C has opportunity to consult an outside lawyer AND  C provides written consent ii. Transaction must be fair and reasonable under the circumstances known to L when interest is acquired iii. Be particularly cautious if the investment is by individual firm members, or if the acquisition represents one of the firm’s major assets, as that might distort the firm’s advice to the company (e.g. disclosure of adverse information) iv. L is not automatically barred from serving on a Board of Directors of a corporate client, although it is strongly discouraged because it will likely compromise duties of confidentiality and loyalty v. L may serve as a director, officer or member of a legal services organization that is not L’s employer as long as L does not knowingly participate in a decision or action of the organization that is adverse to L’s clients 2 c. Publication rights contracts i. ABA: C cannot sell rights to C’s story to L before the representation has ended ii. *CA case law discourages contracts before the end of proceedings, but tolerates them if the judge is satisfied that C clearly understands and consents d. Loans and advances to C i. L cannot financially assist C with litigation, except for  Costs and litigation expenses when representing an indigent  Advance of expenses if C promises to repay  Repayment contingent on recovery is OK ii. *CA prohibits promising to pay C’s debts to gain C’s business, but allows loans in all matters (including non-litigation matters) for any purpose after L is hired if there is a written IOU (C promises to repay in writing) e. Limiting liability i. L cannot proscriptively limit C’s right to report L for ethical or other professional violations ii. L cannot limit L’s malpractice liability when entering into a relationship with C unless C is independently represented in making the agreement iii. If C does make a malpractice claim, L can settle only after written advice to C to consult an outside lawyer first f. Use of information: use or communication of information relating to the representation of C to C’s disadvantage and without consent violates the duties of both loyalty and confidentiality g. Gifts to L or L’s family i. L must not solicit a substantial gift from C or draft a legal instrument for C who is not L’s close relative if it provides a substantial gift to L or L’s relative ii. *CA only prohibits inducing the gift, not drafting the instrument h. Close relationships with the adversary’s lawyer i. L can’t oppose a party represented by a relative without informed client consent ii. Close relations clearly include immediate family (e.g. spouse, parent, child or sibling) iii. * CA extends this rule to any intimate relationship (e.g. L’s own lawyer or client, L’s shackmate or other intimates) iv. There is no imputed disqualification because this conflict is personal to L i. Trial counsel as a necessary witness i. L cannot serve as counsel and witness in the same trial ii. ABA exceptions  If L’s appearance as a witness will not prejudice C and the testimony is uncontested or  Regarding the nature and value of services rendered or  L’s distinctive value to the case would mean that withdrawal would impose substantial hardship on C iii. *CA allows testimony if it is to anyone but a jury, or if C consents in writing 3. Conflicts between clients a. Generally, L may represent clients with potential conflicts with the proper consent of all, but it is almost never proper if their interests are in actual conflict b. Opposite sides of the same matter i. ABA: consent of parties opposed to each other in related cases is almost never reasonable ii. If 2 clients are in direct conflict due to imputed disqualification, it’s unreasonable for L to continue to represent both iii. *CA: it is never reasonable to assert a claim by one client against another client in the same case c. Opposing present client’s interests (different matter) i. ABA: consent of parties opposed to each other in unrelated cases may be reasonable ii. *CA absolutely prohibits L from taking a case that is adverse to a client that L is currently representing, regardless of the relationship of the cases iii. *CA statutory exception  A policyholder and his insurance company as joint clients 3 Adverse party is merely an indemnity provider for prospective client, not a direct party to the action d. Clients with inconsistent positions i. OK with consent of both parties ii. But if either client would be disadvantaged, L must withdraw e. Multiple clients in the same matter i. Examples  Insured and insurance company (in CA, insured and insurer are considered joint clients)  A corporation and any of its directors, officers, employees, or shareholders  Both spouses in a divorce or will ii. Watch for breach of duties of confidentiality and loyalty in multiple client representation iii. Multiple client representation acceptable with reasonable consent iv. Where direct conflict arises, withdraw from representation of both clients and advise them to get separate counsel v. In criminal matters, dual representation may not only compromise L’s loyalty, but also impede the 6th Amendment guarantee of “effective assistance of counsel” f. New clients in matters related to former clients i. Do the representations overlap in function, scope or information? ii. If confidential information from another client might be relevant to new client’s matter, L may be violating a continuing duty of confidentiality as well as L’s duty of loyalty to former client iii. L cannot take on a new client with interests materially adverse to a former client without the former’s consent iv. Use of nonpublic confidential information against a former client is unreasonable v. Imputed disqualification applies to L’s present firm vi. Imputed disqualification applies to L’s former firm if:  The matters are substantially related or the same, and  Any lawyer remaining at L’s former firm has retained confidential material information g. Former government lawyer now in private practice i. ABA: if government lawyer worked “personally and substantially” on a matter (i.e. specific dispute between specific people over specific issues) then it would be a conflict to work on the same matter later in private practice  L must obtain written consent of former government employer to work on the same matter in private practice  Regulations are not a “matter” ii. Imputed disqualification exception  Imputed disqualification applies to colleagues of former government lawyers  However, other members of L’s firm may work on same matter if 3 conditions are met: (1) L is screened off (2) L does not share any part of the fee in the matter (salary or partnership shares established by prior independent agreement are OK) AND (3) L’s government employer is notified iii. Judicial officers other than attorneys are also subject to former government lawyer rules (applies to clerks, judges, and arbitrators) iv. *CA does not have a counterpart to this rule for government service  In CA, prosecutors are barred from later participating on the defense side of the same case 4. Conflicts due to 3rd party interference a. L’s sole duty is to L’s client, not to any 3rd party b. Compensation for L’s services from a 3rd party is permitted only with informed client consent c. Organizational clients: L must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary d. Special rules for securities lawyers under Sarbanes-Oxley Act of 2002 i. Mandatory reporting up within the organization 4  In-house counsel must report any material violations of securities law to the CEO or chief legal counsel of the company  If they do not respond, L must go to the Board of Directors or highest authority in the company ii. Permissive reporting out  If L reasonably believes it is necessary to prevent fraud or substantial injury to the organization or its investors, or if L’s services were used, L may disclose confidential information without client consent to the SEC iii. *CA specifies permissive, not mandatory, reporting to a higher internal authority  CA prohibits outside publication (e.g. SEC)  However, a CA lawyer cannot be held civilly liable or subject to discipline for acting under federal law C. Fiduciary Duties 1. Attorney fees a. Fee agreements are typically contractual between L and C, and should be reached early and clearly i. Non-contingent fee cases  Fee agreements should contain: o How the fee is calculated; o Services covered; and o L and C’s duties  *CA (requires more than the ABA): agreements must be in writing UNLESS o Fee is under $1000; o It is with a corporate client; o For routine services for a regular client; or o Emergency or impractical ii. Contingent fee cases  Fee agreements must in writing signed by C and contain: o L’s percent; o What expenses are to be deducted from the recovery; and o Whether L’s percent is taken before or after expenses  *CA additionally requires that agreements state: o How work that is not covered by the contingency fee will be paid; and o L’s fees are negotiable, not some “standard” percent of recovery  Types of actions allowing contingent fees o ABA: contingent fees may not be used in criminal or domestic relations cases o *CA is silent on criminal matters and allows contingent fee divorces “provided the fee arrangement won’t encourage the breakup of an otherwise savable marriage”  Termination before judgment is awarded o L and C enter into a contingent fee agreement but C fires L before trial or settlement o If and when C wins, L can recover in quantum meruit (proportional to the work done) b. Amount of fees i. ABA: fees must be reasonable  Taking into account o Labor o Novelty o Difficulty o Skill and time required o Result obtained o Experience of and other demands on L o Fee arrangement, etc.  Pursuant to a contingent fee agreement, L may stipulate that C must pay a certain rate per hour for all work done to date if C fires L or refuses a “fair and reasonable” settlement offer as long as such rate is a good faith valuation of L’s work 5   However, if it’s functionally a penalty or forfeiture, then it is not enforceable ii. *CA: fees must not be unconscionably high c. Fee disputes i. The ABA encourages arbitration, if available, to resolve fee disputes ii. *CA requires L to agree to submit to arbitration if C wants d. Fee-splitting i. Generally OK for L to split fees with other lawyers in L’s law firm ii. L may split fees with lawyers outside L’s firm only if:  Total fee meets ethical standards AND  There is written disclosure and consent o In addition, the ABA requires that the division be proportional to the work done by each attorney, unless each is jointly responsible for the action o *CA does not require proportionality iii. Referral fees  Not allowed under the ABA  *CA allows them so long as total fee is not unconscionable and not increased due to the split and the client consents iv. Fee splitting with non-lawyers generally not allowed  Protects L’s judgment  Prevents the unauthorized practice of law  Exceptions o Death benefits for L’s services paid for a reasonable time to deceased L’s firm or heirs o Fees shared with non-lawyer employees via pension and compensation plans o L may also share court-awarded legal fees with a non-profit organization that employed, retained, or recommended L in the matter v. Partnership with non-lawyers in providing legal services  Prohibited for any practicing lawyer  Non-lawyers cannot be partners, shareholders, officers, or control or direct a lawyer’s professional judgment  L can enter into a reciprocal referral arrangement with another lawyer or non-lawyer professional, provided it is not exclusive and L explains the arrangement to C at the time of the referral  If, along with provision of legal services, L provides “law-related services” to C, L is subject to the ethical rules o If services are provided by a separate entity controlled by L, she must take reasonable measures to ensure that C knows that protections of the A/C relationship do not apply 2. Client trust accounts a. L has a duty to safeguard C’s property by labeling and storing it in a safe place (e.g. office safe or bank safe deposit box) b. Money held for C must be placed in a client trust account i. Includes moneys received on C’s behalf, advances for costs, expenses and fees ii. No borrowing or commingling of funds with L’s personal money allowed! iii. L should use individual, interest bearing trust account to hold client funds (interest belongs to C) c. Smaller funds held for a short period of time for several clients at once can be deposited into a “pooled client trust account” i. Must be a checking account ii. *CA (and most states) the interest (IOLTA) will first go to pay bank service charges with remainder to the State Bar to fund legal services d. If L has a disputed claim for fees or if a 3rd party has a lawful claim over C’s funds or property in L’s custody, L must withhold the disputed portion in the client trust account until resolution of the claim e. Duty to account 6 L has a duty to keep good records for C, render accountings, notify C of moneys received on his behalf, and pay promptly money due to C ii. *CA requires L to keep records of client property for 5 years after final distribution and to make records available to the State Bar for audits D. Competence and Other Duties 1. Duty of competence: L has a duty to render competent service to C a. Competence: using legal knowledge, skill, thoroughness and preparation reasonably necessary for representation b. If L doesn’t know the relevant law, L can’t take on a matter unless i. L can put in the time to learn it without undue expense or delay to C, or ii. L associates with a lawyer competent in the area c. Breach of duty of competence subjects L to: i. Discipline by the Bar ii. Disqualification as counsel in a litigated matter, and iii. Civil malpractice liability d. Malpractice vs. disciplinary action i. Malpractice action  Brought by injured plaintiff  For purposes of compensation  Adjudicated in civil court  Plaintiff must prove a legal claim (e.g. breach of contract or tort) o In simple negligence cases, malpractice plaintiff must show a breach of the duty of due care o Duty of care: skill, care and judgment that a reasonably prudent general practitioner in the region would have used in the circumstances o While an ethical violation may be relevant evidence of malpractice, it does not create a presumption of it ii. Disciplinary action  Brought by State Bar  For purposes of punishment of L or protection of the public  Disciplinary tribunal 2. Accepting representation a. L is free to accept or to reject any case b. L should accept, as part of L’s duty to the public and profession: i. Cases of the defenseless or oppressed if L’s only reason to refuse is selfish and A fair share of work without charge (ABA urges 50 hours of pro bono work a year for truly indigent clients) c. Conversely, L must reject a case if L would violate a law or disciplinary rule to take it i. L is not in physical or mental shape to take the case (violates duty of competence to C, including being over-booked), or ii. Case would require making a frivolous legal argument (violates duty of candor to the court) 3. Scope of representation a. C makes decisions about substantive rights (e.g. whether to testify in a criminal case, accepting plea bargains or settlement offers) b. L makes decisions on procedure and legal strategy (e.g. choice of motions, what discovery to seek) c. If L and C disagree, L can limit the scope of representation with C’s consent d. Scope of representation does not include counseling or assisting C in criminal conduct or advising C how to act illegally and get away with it 4. Duty to communicate a. L has a duty to keep C informed about the case, including settlement offers (and returning phone calls) b. If a settlement offer is made to joint clients, L must convey the offer to all and make sure they agree on the division of the settlement before accepting 7 i. ii. II. 5. Duty of diligence: L has a duty to diligently, promptly, and zealously pursue the case to completion 6. Duties upon withdrawal from representation a. 3 ways to leave a case before the matter is resolved i. C fires L ii. Mandatory withdrawal: L must withdraw from a pending case if continuing would violate a law or ethical rule  If L’s physical or mental shape renders L incompetent  If continuing would require assisting in a crime (C is using L’s services to commit a crime or fraud)  Knowingly pursuing a frivolous claim violates duties of candor and fairness iii. Permissive withdrawal: L may withdraw from a case if L convinces the court there is good cause, or if it’s FAIR under ABA Rules because C:  Financially burdens L; o *CA: financial burden is not grounds for permissive withdrawal, although breach of a contract to pay expenses or fees is  Acts illegally, or has used L’s services to commit a past crime or fraud; o *CA: use of L’s services to commit a past crime is not grounds for permissive withdrawal  Insists on pursuing an objective L finds “repugnant” or “imprudent”; or  Refuses to fulfill an obligation to L after being warned that L would withdraw if C didn’t comply b. Procedures for withdrawal i. L must provide timely notice to C, and ii. L must promptly return any unspent fee and expense advances, and all material papers and property of C  Includes everything needed to pursue the case, even work product, and even if C has not paid  *CA forbids withholding C’s materials for money (can’t hold files hostage)  Court may deny withdrawal or a substitute attorney if it would cause undue delay or disruption 7. Other duties: be reasonable and sensible a. ABA has rule not to have sexual relationship with client unless pre-existing. CA allows sexual relationship. Duties to the Public and Dignity of the Profession A. Duty of Candor 1. Under the limited commercial speech doctrine of the 1st Amendment, a state can regulate attorney advertising and solicitation subject to L’s constitutional right to free speech 2. Restrictions are constitutional if: b. Government asserts a substantial interest (e.g. dignity of the legal profession, invasion of citizen privacy); c. Regulation directly advances that interest; and d. It is narrowly tailored B. Advertising and Solicitation 1. Advertising: L’s communication with the public at large, or a segment of the public a. Advertising must not be false or misleading i. Don’t mislead or omit material information ii. Don’t raise unjustified expectations or make unverifiable comparisons  *CA presumes improper any ad that contains guarantees, warranties or predictions of result  No testimonials or endorsements may be used unless there is an express disclaimer that they are not a guarantee, warranty, or prediction b. Advertising must not harass or solicit someone who has indicated that she wants to be left alone c. Targeted direct mail is OK, but must meet exact guidelines for labeling as “Advertising Material” 8 III. Every ad must be labeled as advertising and, if applicable, “a dramatization” or “impersonation” ii. Must identify at least one lawyer responsible for its contents iii. L must keep records of content and placement of any ad for 2 years d. Claims of legal specialties i. L can explain fields of practice (e.g. practice limited to federal courts) ii. L may not advertise claims of specialization unless L is a “certified specialist” that has earned a certificate in a specific legal subject issued by:  CA Board of Legal Specialization, or  A private organization that is either approved by the ABA or identified clearly as an organization not approved by the state e. *CA presumptions i. CA Rule 1-400 lists additional specific actions presumed to be advertising violations ii. Shifts the burden to L to disprove a violation 2. Solicitation: individualized live contact with a layperson, initiated by L or her agent, designed to entice such person to hire L a. L must not seek professional employment for pecuniary gain by initiating live, telephone or real-time electronic contact with a prospective client with whom L has no prior professional, personal or family relationship b. *CA presumes that communications made at the scene of an accident or en route to a medical facility are improper, as are communications to potential clients that L should know are not in the physical or mental state to exercise reasonable judgment c. Runners and cappers (agents) can’t do anything that L can’t do d. Payments (anything of value) for referrals are not allowed, except for i. Fee-splitting with other lawyers under CA rules, or ii. Small, ordinary fees paid to authorized lawyer referral services Duties to the Court and Adversary (Courts Feel Differently) A. Candor to the Court and Fairness to the Adversary 1. L is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (can override conflicting duties of confidentiality and loyalty to C) 2. Duty to present facts and evidence truthfully a. L must refuse to make a false statement of material fact or offer evidence L knows is false to a tribunal or fail to correct a false statement of material fact or law that L previously made or presented to the tribunal b. Client perjury: L must not knowingly facilitate client perjury i. If the matter is a civil case, L must refuse to call C as a witness if L knows C intends to perjure himself ii. However, criminal defendants have a 5th Amendment right to testify on their own behalf and a 6th Amendment right to the effective assistance of counsel  L also has an ethical obligation to protect C ’s confidences  If C tells L that he intends to testify falsely, L should take reasonable remedial measures o Counsel C to testify truthfully or not to take the stand o Try to withdraw from the case (*seeking withdrawal is permissive in CA), then, finally:  ABA Model Rule (strong majority): because the constitutional right to counsel and duty of confidentiality do not protect perjury, L should tell the judge  *CA case law: allow D to testify in narrative fashion but do not further the deception (e.g. don’t facilitate with questions or later argue points to the jury) iii. If C informs L that C has perjured himself after the proceeding  L should still take reasonable remedial measures  However, L’s duty ends with the proceeding (when time for appeal has run) c. Witnesses i. L must not counsel or assist a witness to testify falsely or to become “unavailable” to testify ii. If W refuses counsel to testify truthfully, L should refuse to put him on the stand i. 9 If L has reasonable belief but some doubt as to the falsity of the testimony, the rule is permissive iii. Unless local law prohibits, L may pay basic expenses of witnesses and reasonable fees for expert witnesses, so long as payment is not contingent on content of testimony 3. Duty to produce evidence a. L must not suppress any evidence that L or C has a legal obligation to reveal or produce, regardless of the duty of loyalty i. L may not obstruct access to or tamper with fruits or instrumentalities of a crime ii. L cannot unlawfully destroy, conceal or alter evidence, or obstruct another party’s access to it or counsel anyone to do so iii. Physical evidence is not insulated by confidential client communication iv. L must deliver physical evidence to the authorities (e.g. police or DA) if L is reasonably certain it is contraband b. Interference with evidence i. If L’s investigator finds physical evidence but leaves it untouched, L does not have a duty to tell the police about it ii. L or his agent may be compelled to testify as to the original location or condition of evidence that L moved or altered iii. L does not have to reveal the source of information about the location of evidence because it’s confidential iv. L may retain evidence for a reasonable time to prepare C’s case (e.g. to conduct tests) so long as it will not alter or destroy the evidence c. Ex parte proceedings: unusual communications with the judge outside adversary’s presence i. L’s ethical duties of candor to the court and fairness to the adversary require L to reveal relevant information ii. Overrides normal presumption that L should not volunteer facts harmful to C’s case 4. Duty to state the law truthfully a. Knowingly making a false statement of law to the court is subject to discipline b. L has an obligation to be candid about the law and a duty to cite to adverse authority if it’s from a controlling jurisdiction and directly on point c. Presenting frivolous claims or defenses is unethical and subject to discipline 5. Duty to uphold the law a. Preventing C from causing death or serious bodily injury i. Some jurisdictions mandate disclosure of facts to prevent death ii. Under the ABA and CA law (as of July 2004), disclosure to prevent death or serious bodily injury is permissive iii. Under CA law, L has no duty to reveal C’s fraud or crimes that cause substantial financial loss b. Assistance in a crime i. If continued representation would require L to commit or assist in committing a crime, L must withdraw ii. If C persists in a course of action that L reasonably believes is criminal or fraudulent, but L is not assisting in a crime, L may withdraw B. Additional Duties of Fairness 1. L has a duty to behave honestly at all times in all dealings, whether or not engaged in the practice of law 2. Dealing fairly with others a. Communication with adversaries and third parties i. L must not make false statements of fact to people or mislead them as to L’s interests ii. L must not violate others’ legal rights in order to obtain evidence, or use means with no purpose but to delay, burden or embarrass them b. Communication with a party represented by counsel i. Unless specifically authorized by law, L must not communicate with a party L knows to be represented by counsel on the matter without consent of such party’s counsel ii. Organizations 10  Consent is required for interviews of anyone who supervises or regularly consults with the organization’s lawyer, who has authority to obligate the organization, or whose conduct may be imputed to the organization  No need to obtain consent before interviewing a line worker or one who no longer works for the organization, but care should be taken to protect the organization’s rights (e.g. protecting the A/C privilege) iii. No need to obtain consent to interview an unrepresented non-employee. 3. Dealing with the press a. A defendant’s right to a fair trial is balanced against the press and the public’s right to know b. L and L’s agents must avoid out-of-court statements that L reasonably should know have a substantial likelihood of materially prejudicing the case c. Exceptions i. Matters in the public record or routine booking information ii. Warning the public, informing them of an ongoing investigation or asking for help iii. Statements required to protect C from substantial undue prejudice from recent publicity not self-initiated d. Prosecutors must not make comments that have a substantial likelihood of heightening public condemnation of the accused 4. Special duties of prosecutors a. Basic duty of a prosecutor is to seek justice, not just win cases b. Prosecutors have higher ethical obligations than criminal defense or civil attorneys and must: i. Have probable cause; ii. Protect accused’s right to counsel, including not subpoenaing a lawyer to present evidence about a client unless it is essential and unprivileged; and iii. Timely disclose evidence favorable to the defense (exculpatory evidence) C. Dignity of the Court 1. Duty to preserve the impartiality and decorum of the tribunal a. L must not try to influence anybody improperly i. Before and during trial, L must not talk to any prospective or empanelled juror ii. After trial, if local law permits, L may interview jurors so long as L does not harass or influence future jury service b. No “chicanery”: trickery, especially by lawyers and politicians (e.g. referring to inadmissible material, alluding to matters unsupported by the evidence, asserting personal knowledge of facts at issue) c. Duty to preserve the decorum of the tribunal i. Refrain from abusive or obstreperous conduct, belligerence, or theatrics ii. L may stand firm against abuse by a judge but should avoid reciprocation 2. Duty to expedite cases a. L has an affirmative duty to expedite cases b. *CA: L must not delay cases to harass an adversary or for personal gain or convenience c. L has a duty to follow valid procedural rules or court orders, unless L is making a good faith challenge to their validity d. L must not abuse or obstruct discovery 3. Additional duties to the profession and public a. In order to safeguard the public from incompetence, L must not engage in the unauthorized or unlicensed practice of law i. Practice in a state while suspended or in which L is not admitted is a violation unless allowed under limited exceptions ii. ABA rules governing multi-jurisdictional practices allow temporary practice by a lawyer in good standing in another state if it arises out of matters reasonably related to the lawyer’s home-state practice or if affiliated with a local lawyer or granted a “pro hac vice” appearance by a local court or related to ADR iii. *In 2004, CA adopted more narrow rules governing out-of-state lawyers allowed to practice in the categories of: 11  IV. Registered legal services attorneys (practicing under supervision of a CA attorney for no more than 3 years)  Registered in-house counsel for an institution (but no individual representation or court appearances)  Litigating and non-litigating attorneys practicing temporarily in the state o These rules generally require L to register with the CA Bar, pay dues, satisfy continuing legal education requirements, and be subject to CA ethics rules o Additional details apply to each category (e.g. a legal services attorney cannot have taken and failed the CA Bar within the previous five years) b. Conduct generally: L should not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, including in private business or personal capacity c. Reporting misconduct i. ABA: L must report any other lawyer or judge’s violation of the Rules if it raises a substantial question as to that lawyer or judge’s honesty, trustworthiness, or fitness as a lawyer or judge ii. *CA instead requires self-reporting of being charged with a felony, found civilly liable for fraud or breach of fiduciary duty, disciplined in another jurisdiction, and other difficulties Duties of Subordinate Lawyers A. Subordinate L under the control or supervision of another attorney (e.g. senior partner) who ratifies or orders subordinate L to take an action violating the ethical rules 1. Ethical responsibility if it is a clear violation: subordinate L is subject to discipline 2. Ethical responsibility if it is a debatable problem: supervising L is solely responsible 3. Supervising L’s ethical responsibility: if supervising L ratified the action or knew of the conduct and failed to take action, it is a violation B. Managing partners must make reasonable efforts to ensure that everyone’s conduct in a firm, including nonlawyer assistants, comports with the professional obligations of a lawyer C. Inaction: in CA, L can be disciplined for merely knowing about a fellow firm member’s disciplinary violation and doing nothing to prevent it  12