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Legal Profession Outline for Law School

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Legal Profession Outline for Law School Powered By Docstoc
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LEGAL PROFESSION FALL 1999 PROF. BECKER I. Introduction A. Guides how the profession regulates itself B. When should you be able to divulge privileged information C. ABA Model Rules of Professional Conduct 1. We study b/c its one of the basis for the NPRE 2. When States adopted the rules they made changes & amendments/exceptions. 3. Usually are adopted by the courts, they regard themselves as having more power over attorney's then the legal profession. 4. It doesn't have what Model Code (predecessor) had an ethical consideration – general guide for how attorney should think about things. 5. Criticism of Model Rules in this statute form there is no guide for troubled attorney. D. Other Rules that regulate conduct 1. Malpractice- rules in a sense supplement ethics (they overlap) a. Is failing to comply with statutes of limitations on ethical violation? No, if missed once, but if attorney doesn't have a system of tracking cases & misses statute of limitations could be violation of duty of competency. 2. Ethical violations a. negligence 3. Not all ethical violations are Malpractice just as not all malpractice is an ethics violation E. Professionalism- attempt to mentor younger lawyers. Treat others with civility and teach the traditions of the bar. Defining the Client-Lawyer Relationship (yellow) A. Is there a client? 1. The fact that there is nothing in writing & no payment does not preclude an attorney – client relationship. a. No payment doesn't preclude a relationship b. Agreement doesn't have to be in writing. c. Just b/c there is no specific agreement that doesn't preclude a relationship. d. Rule 1.5 (b) When lawyer has not regularly represented client the agreement shall preferably be in writing - Pa. it shall be in writing e. Rule 1.5(c) if it's a contingency fee it shall be in writing. B. How do you form a relationship? 1. Express agreement 2. Implied agreement /promissory estopal

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a. Restatement- if person manifests an intent for legal services and lawyer doesn't say, "I won't represent you" and knows the person wants the layer to act for her there's a relationship. 3. Obligation (Duty of Care & Confidentiality) to Prospective Client a. If there were a duty of confidentiality then when the opposing party wants your services you can't represent the second person on that matter b/c of the duty to the prospective client, there would be a conflict of interest. b. To protect yourself from this situation get a waiver of confidentiality from the prospective client. 4. Liable to non-clients (duty of care) a. Wills- (A goes to B to draft will to benefit C&D lawyer B screws up C&D don't benefit & sue lawyer) Courts are tending more and more towards holding lawyer liable. Lawyer knows the purpose of the doc is to benefit C&D. b. Others will rely- lawyer performs knowing others will rely or client will give to someone who will rely on the opinion. c. Child of Client- all cases say you don't owe the child any obligation when you represent the parent. (there is no duty to the child) - If lawyer is really concerned about the child he can withdraw from the case. d. Web Pages 1) Disclaimers may not work 2) Problem is if you give advice where they contacted you over email; you've invited the contact y being on the web. If you give advice & it violates the duty of care you could be liable. (no one knows) 3) You should respond to the request for advice by saying I can't possibly give you advice w/out knowing all the facts please come to my office and talk to me. 4. Practice Points a. It's always good practice to have a writing b. In corp. context always desirable to have writing b/c you can make clear the understanding of the parties. 5. Declination- a letter that declines representation 1) purpose to show no relationship, makes it clear you have no obligation to the client 2) Tell client you may have rights & there is a statute of limitations so you can consult another lawyer - Don't mention why -Cite all documents are being returned C. Elements of Relationship 1. Competence Rule 1.1 - A lawyer shall provide a competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

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a. The expectation is you will take on things you are familiar with or have the analytical ability to take on the issue & learn b. Problems ore when people have no familiarity with the subject and don't do anything. - Can you bill a client for something that took you 100 hours b/c you had to learn everything but if would take others 20 hours. Fees must be reasonable. Is it reasonable to charge client for what you don't know? If client doesn't know you need to get up to speed shouldn't bill for those hours. c. Standard of Care- reasonable person standard d. Always keep in mind relationship between ethics and malpractice. (To prove malpractice have to show breach of duty, causation, damages have to prove value of case where statute has run) 2. Confidentiality - If you are paid by x to represent y your client is y. a. Ethics Rule 1.6(a) (broader privilege) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). 1) §74 Duty of care to certain non-clients (p84) to extent that the (b) circumstances known to the lawyer make it clear that appropriate action by the lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach of a fiduciary duty owed by the client to the non-client, where (i) the breach is a crime or fraud or (ii) the lawyer has assisted or is assisting the breach; (c) the non-client is not reasonably able to protect its rights; and such a duty would not significantly impair the performance of the lawyer's obligations to the client. 2) Lawyer talks to husband/wife it’s a violation. 3) 1.6 protects information gained from a third party if the information conveyed relates to the representation, there is no time limit on this. b. Evidentiary Privilege- attorney/client privilege is only an evidentiary rule. Only protects what can be used in litigation. 1) client seeks advice 2) content from client to lawyer are privileged (means other side can't ask about the communication from client to attorney) 3) The client can waive the privilege 4) The lawyer when on the stand and asked must assert the privilege 5) To the extent the lawyer's communication reflects what the client asks it is privileged. - Some courts will add everything lawyer says in response to a client's request for legal advice is privileged. 6) Includes agents of the attorney

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7) Purpose: to allow people to get advice of their lawyers freely knowing that what they say can't be used as testimony against them. Client is privileged not to testify as to the content of communication with attorney when seeking advice. Extends to documents. 8) Application to an Entity Client. (Which employees are covered by privilege ) a) Narrowest Test: the lawyer's communication was with a person in the control group of the entity (the people who direct the companies action). b) Broadest Test: subject matter test asks whether the information was imparted to the lawyer to enable her to give the entity legal advice. (Upjohn) [If the employee initiates the communication its privileged] c) Goldfarb- covers only factual communication when they concern the employee's own conduct within the scope of his or her employment & are made to assist counsel in assessing to the legal consequences of that conduct for the corporate client. - Purpose of test: privilege should not protect witnesses, just actors as to their own conduct. Exceptions c. Exceptions to Privilege 1) Crime-Fraud Exception- if client goes to lawyer for purpose of committing a crime or fraud the privilege doesn't apply because the privilege should not be used to promote violations of the law. (Fraud- there must be an actual or attempted intentional misrepresentation) 2) Identity & Fees - If the names of the client would be the last link in incriminating the client (exception to identity & fee exception) 3) Public Policy- Courts have held privilege doesn't apply when the public policy outweighs the privilege. Very few cases: an example may be when parent has taken a child. Usually only may apply when client is missing. 4) Dispute as to a will- the attorney-client privilege doesn't apply when there is a question as to the intent of the will. 5) The privilege survives death when the client dies and there is an on going criminal investigation. d. Exceptions to the Ethics Rule 1) Rule 1.6(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or (2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the

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2)

3)

4)

5)

6) 7)

lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. 1.6(b)(1) very controversial b/c it's to conservative all states that don't adopt expand what can be told. (Only 6 of 40 states that have adopted this statutory language, most have adopted language that is more expansive) 1.6(b)(1) says you can only disclose information to prevent a client from doing a criminal act. Client information cannot be used to stop others from harming. - Proposed § 117(a)(p86) would allow for disclosure when the harm is by anyone. Rule 1.6(b) permits a departure from the rule for physical harm not economic harm. a) Rule 1.2(d) says a lawyer may not assist clients in conduct that is criminal or fraudulent. b) Even if you can't disclose you cannot help the client. c) States have said this is too restrictive and the states have made 3 types of changes (1) disclosure to prevent any crime by client (2) Pa. 1.6(b)(1) a criminal or fraudulent act likely to result in the substantial injury to the financial interest or property of another. (3) 1.6(b)(2) Exceptions a) To establish a claim/defense on behalf of the lawyer in a controversy between the lawyer and client. b) To establish a defense to a criminal charge/civil claim against the lawyer based upon conduct in which the client was involved. c) To respond to allegations in any proceeding concerning the lawyer's representation of the client. d) An omission in the exception that is obvious: when there is a state statute or court order that mandates disclosure. Geared at preventing crime Statute & most states are permissive disclosure. Assuming that you could disclose do you have to disclose? To disclose you must think about and answer whether there's a reasonable belief that what will happen is it a crime a) Will consequences insue? Is the crime severe enough? b) Statute is permissive & rule is the lawyer's discretion to disclose/not disclose is non-reviewable. c) It's more of a risk to disclose b/c there are more questions to answer eventhough it's not reviewable. (designed to protect attorney's)

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d) Some states mandate disclosure on certain issues (New Jersey requires an attorney to reveal confidential information "to prevent a client from committing a criminal, illegal or fraudulent act . . . likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another." Also requires a lawyer to reveal confidences to prevent a client from committing a "criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal." e. Waiver 1) Explicit- Client can consent to disclosure of confidential information. 2) Implicit- when client puts the content of the communication into issue; or if you make partial disclosure then you waive privilege as to the communication. 3) Inadvertent waiver – client puts stuff in trash, other side goes through the trash & finds confidential information that is clearly privileged (i.e. letters between client & lawyer). Other side asks did you tell lawyer xyz (what was found in the trash). Is it privileged? 3 approaches a) You put it in the public and therefore it's waived inadvertently. b) You didn't intentionally waive anything. The privilege should attach unless intentionally waived. c) Balancing Test d) Suppose lawyer put it in the trash, can the lawyer waive the privilege? Cases tend to assume they can. (Doesn't really make sense b/c the privilege belongs to the client) -Consequences for the lawyer who in a waiver situation: malpractice and ethics violation. e) What if a fax gets sent to other attorney instead of client by accident? Things to keep in mind: can a lawyer waive the privilege; was it inadvertent; and do you do a balancing test. f) If not addressed to you return it. 1. What if other lawyer sees confidential and reads anyway? - 8.4(c) & (d) it's professional misconduct to: (c) engage in conduct involving dishonesty fraud deceit or mis-representation (d) engage in conduct that is prejudicial to the administration of justice. 2. If there is no writing stating the information is confidential, once you know its not yours contact the other party and try and resolve it. If you can't go to court and get a determination as to whether the privilege has been waived. g) If you write for x only or something equivalent you have not waived anything. 3. Loyalty and Diligence

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a) Duty of Loyalty- there is no Model Rule, which imposes a duty of loyalty as such. Sometimes cases talk about a duty of loyalty. What happens is the concept of loyalty to a client underlies some of the Rules? 1) Rule 1.7 deals with conflicts of interest. What the rules says is that there are restrictions on the lawyers ability to represent one client and another client when their interests conflict and the client's interest and the lawyers interests can't conflict. (Duty of loyalty underlies this rule) 2) Duty of Zealous representation- Model Code said a lawyer should represent a client zealously. There is no similar provision in the Model Rules. The only mention of zeal is "zeal in advocacy" but the lawyer doesn't have to press for every advantage for the client. a) By de-emphasizing zealous advocacy the Model Rules are saying to the lawyer that you don't have the duty of tearing people down regardless of the damage. You don't have an obligation to go through walls. b) Saying "zealousness" might cause some lawyers to go off the deep end. c) The Model Code replaces zealousness with Duty of Diligence. -An attorney will get in trouble if they let things go. Especially when they let things go in a number of cases. I.e. miss deadlines. 4. Duty to Inform and Advise a) Rule 1.4(a). A lawyer shall keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. (Keep client reasonably informed about the status of the matter and promptly comply with reasonable requests for information.) b) Rule 1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (Don't have to tell the client everything but you have to tell/advise client about matters for the client to decide.) c) Rule 1.2(a). A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (A lawyer shall abide by the client's objectives and consult with the clients as to the means by which the objectives are pursued.)

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d) Rule 4.1(a) – " In the courts of representing a client a lawyer shall not knowingly: make a false statement of material fact or law to a third person. e) Rule 8.4(c) "It is professional misconduct for a lawyer to: engage in conduct that is prejudicial to the administration of justice. f) Need to inform client of other claims they might have. Need to inform the client of other parties who may be liable. If you aren't going to represent them in those claims, then you need to make that clear and advise them to seek other counsel for those claims. g) Clients don't know what the law is and they rely on lawyers to explain the array of remedies available. How much of an obligation do they have? Do you have to research if they have a cause of action? Probably not, just tell them that they might have other claims or rights. h) Can you limit your representation? Yes, by clear words. But even if you make it very clear you still may have a responsibility for anything that is reasonably apparent i) You have to talk to the client about other remedies, or the fact that there may be other remedies. j) The clients Rights and What decisions does the client have to make? 1) Rules 1.7 1.2(a), 1.4 2) Civil Case: Whether to accept an offer of settlement. A lawyer shall abide by a client's decision about settlement. The lawyer has to inform the client as to what the offer is. The client can't exercise their decision unless the lawyer tells them. You must first speak with the client before accepting or rejecting the offer. It is the client's right to make the decision. The lawyer can't make the decision if the client doesn't know about it. If it is an unreasonable offer of settlement, first speak with the client b/c you want to protect yourself from liability, and it is still the clients decision, you can tell the client what you think. Lawyer must follow the client's instructions as to the fundamental goals. Client has the right to say what the fundamental aim is. 3) Civil Negotiation: Obligation to follow instructions of client. 4) Criminal Cases: Client has the right to decide as to the plea; whether to testify; and whether to have a jury trial. 5) Legal tactics and strategy are within the province of the attorney. It's the lawyers job to decide what issue are good issues.

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6) Sometimes the line becomes gray. If you are unsure, then it is probably best to speak with the client about the matter. a. The lawyer can enter into easily provable stipulations. b. If something is a key stipulation this is a different proposition (when the stipulation will have a significant effect on the client's claim or defense, and whether to forgo or pursue an appeal, the decision is up to the client) D. Autonomy of Attorneys and Clients 1. Client with diminished capacity a) Rule 1.14 (a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest. b) Counsel for person with diminished capacity has to file a report & Recommendation to the court. Do you do what you think is best or what the child wants? What's the attorney's obligation? 1) NJ court held obligation of lawyer is to advocate what the child wants. 2) If there is a conflict between what you think and what the child wants you can ask for a guardian to advocate the child's position or you can tell the judge "this is what I think and this is what the kid wants. c) What if the client is depressed and just wants to take the deal offered and you know the client can get more (i.e. in a divorce situation) 1) Remember the client has the right to make the decision on the offer 2) Say I'm concerned about your judgment take some time, talk to someone and get back to me. 3) You could withdraw (problem arises when you leave client in the middle of the litigation) 4) Seek appointment of a guardian (last resort b/c it's dehumanizing and traumatizing) 5) The basis for a malpractice case by the client would be if you really believe the person isn't able to make a judgment and if you know they are not competent to make decision you can't really follow it. 2. The Lawyer's Autonomy in Moral Matter a) Can refuse to represent a person

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b) Rule 2.1 lawyer is free to advice client about moral considerations (explaining matter where moral aspects are concerned). In representing a client, a lawyer shall exercise independent professional judgement and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. c) Rule 1.16 right of withdraw. d) Rule 1.6(b) permissive disclosure. (The legal ethics rules control over your own moral code). E. Terminating the Relationship 1. The client can fire an attorney for any reason. a) The client cannot be sued for damages but may be responsible for fees up to the time of termination. (usually if the termination is without cause) b) In contingency fee K lawyer is entitled to quantum merits. Some courts say only if the client recovers. c) Client's ability to fire a court appointed attorney requires a court's approval. 2. The lawyer's ability to withdraw a) Rule 1.16(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. b) Rule 1.16 (a) Mandatory Withdraw. 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 [keep in mind rule 1.2(d) can counsel client in how to do conduct within the law but cannot help client engage in fraudulent criminal conduct] (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged c) If the matter is in litigation the attorney must get the courts approval to withdraw.(it may be inconsistent to allow withdraw) d) Permissive withdraw Rule 1.16(b) "a lawyer may withdraw from representing a client if withdraw can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer's services that the reasonably believes in criminal or fraudulent; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable

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warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; (6) Other good cause for withdraw exists." e) Under Rule 1.16(b)(4) 1) You may or may not be entitled to fees depending on the state law. 2) At common law there was a retaining lien- can retain clients papers (not used anymore but there are not cases that say it cannot be used) 3) At common law there was a charging lien- right to get fees from the amount the client recovers f) Rule 1.16(c): "When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." g) Rule 1.16(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 that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law." h) Noisy withdraw, comment 15 to rule 1.16 1) The lawyer can say s/he is withdrawing a document but cannot say why. 2) Ability to withdraw a document you prepared that's infected with fraud. 3. Document the withdraw. Write a letter documenting that the withdraw has occurred stating "I'm withdrawing b/c of a conflict with professional considerations." a) If the client's new attorney calls and asks why you withdrew the attorney client confidentiality of Rule 1.6 prevents you from disclosing the reasons for withdraw. b) Look to see if you're state has adopted Rule 1.6(b) and other exceptions that it adopts. (Rule 1.6(b) is a very conservative approach). 4. (Keep in mind when looking at withdraw) Rule 3.3(a)(2) "A lawyer shall not knowingly make a: (1) false statement of material fact or law to a tribunal; (2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." 5. Termination by drift- if you think the representation is over make it clear to the client. If not you may be held to represent the client in a conflict of interest case.

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III.

Protecting the Client Lawyer Relationship Against Outside Interference A. Communicating with another lawyer's clients 1. Rule 4.2 "Communication with person represented by counsel: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows has the consent of the other lawyer or is authorized by law to do so." a) Scope of the Rule Civil Matters 1) Beauty Show (person looking for a new lawyer). When a person already represented by a lawyer but wants to change comes to talk to you; you can talk to that person without his or her attorney's consent because you are not representing anybody in the matter. (Can't talk to a person whom you know to be represented by another lawyer. What if x (in a car accident with client) has insurance but hasn't sued is x represented? It depends on how strictly you construe the word "KNOWS"). 2) Person v. Party: In Pa the word person is replaced with party. This allows counsel to contact witnesses represented by counsel without contacting the counsel. Counsel still must contact the counsel to a party before communicating with that party. 3) Pre-litigation contact a. Assume contacting employee is contacting the company (for purpose of hypo) The court held if you don't have a lawyer the rule does not apply. 1. Argument that Rule 4.2 doesn't apply because the company is not represented by counsel at the time. 2. Argument that says you shouldn't be able to talk to employee. Litigation is going to take place & you know the company will be getting a lawyer. 3. There are some contradictory cases. Utah if you know its going to litigation and you know they will be represented by a lawyer if it goes to litigation you cannot talk to the person. 4. In Civil Cases the defendant can try and use 4.2 to its advantage by trying to disqualify the counsel or evidentiary strikes. 4) Talking through client a) Argument that 4.2 doesn't prohibit you from having your client contact the other side and say what you wanted to say. The lawyer cannot communicate is a bad policy argument. If the rule were read that narrow it would wipe out the rule. Rule 8.4(a) – "It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another."

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b) If the client wants to talk to the other party that’s fine, parties can talk to each other but attorney cannot talk to represented parties through their client. c) California court says you can discuss strategy with your client but not substance. 5) Suing a corporation (hypo: If you're suing a corporation and litigation has begun and the corporation is represented. Plaintiff wants to conduct ex parte interview of all the people on the site at the time of the accident. Lawyer would want to take ex parte interviews rather then depositions because the is more likely to talk in an informal environment.) a) Not permitted to contact corporation about the matter unless the corporation's lawyers agree. b) What employees are deemed to constitute the corporation for purposes of 4.2? (There are alternatives) 1. Anybody whose conversations with counsel would be privileged under the Upjohn rule. Cannot be communicated with under 4.2. (Court rejects this because it is too broad, allows to much secrecy) 2. Control Group- the people who direct the company's action. Court also rejects this test because it doesn't protect enough. 3. Comment 4 to Rule 4.2: "prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purpose of civil or criminal liability or whose statement may constitute an admission on the part of the organization. . . " a) This comment is more of a legal test. Must look to see if the comment exists in the state. ELEMENTS 1. managerial responsibility 2. anyone who's act will be imputed to the organization for liability 3. Their statement may constitute an admission on the part of the organization. 4. If you talk to a former employee the prevailing thought is Rule 4.2 doesn't apply but there is a split. a) Assume you can talk to employee can you ask anything? i. e. what did the other guy and the lawyer talk about. The interest being trampled on is attorney/client privilege you shouldn't be able to ask about it.

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IV.

b) 8.4(d) should not be violated. "It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice." 2. Must contact the lawyer of a witness who has counsel before talking to the witness under this rule. 3. Sanctions under 4.2 a) Usually comes up with regard to suppression of statement or disqualification of attorney. b) Sometimes sanctions. 4. How Rule 4.2 works in other contexts a. Government agency context, if your suing the city. (p106 case book) b. Criminal Cases 1) A defendant's lawyer can contact the victim. Prosecutor doesn't represent the victim; rather prosecutor represents the state. So defendant's attorney is free to contact victim but if victim has own lawyer. If the victim does have a lawyer Model Rule 4.2 kicks in ("any party"). 2) Applies to federal prosecution (law of applicable state where action takes place). Inhibits prosecutors. a) Can they use undercover agents to contact defendant directly prior to indictment, when defendant is represented? It's enacted by the government and they know defendant has attorney. - U.S. Attorney General has said prosecutors are not subject to 4.2. ABA said it does apply. There is a compromise 4.2 that has been drafted. 5. Rule 4.3 Dealing with Unrepresented Persons: "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 is understanding." - Cannot imply you're disinterested. Comment says you can only give advice about seeking counsel. B. Improper Acquisition of Confidential Information (p120) 1. Lawyer cannot simply look over privileged information and use it. The attorney can take two types of action. a) Return Information b) Contact court and c.c. the other side Financing Legal Services A. Reasonable Fees Rule 1.5 Fees 1. Rule 1.5(a) "A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

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(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment will preclude other employment by lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent" 2. If the fee is unreasonable it is unenforceable. 3. A lawyer that charges an unreasonable fee can be disciplined. 4. Pa. a lawyer shall not charge for, agree upon or accept a clearly excessive fee. (Pa. is easier to define because clearly excessive has to be more. Seems more favorable to lawyers.) 5. Rule 1.5(b) "When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation." - Pa. requires it to be in writing B. Type of Fees 1. Hourly Fees a. Breakdown $ for partner/associate/paralegal. The harm in not breaking down the amount is client can say I didn't agree to pay that. Or; b. Blended rate: charged same rate no matter who worked on it. c. Make sure client is retaining law firm not just the one attorney d. Reasonable Fee under hourly rate 1) Look at time of k and subsequent developments to determine 2) Can you bill client B for work while traveling for client A? ABA said no, if you bill one client for 3hrs. while traveling 4hrs. for other client, can't bill both because you would be representing that you actually worked 7hrs. 3) Limited to actual time you spend according to ABA, it is not dispositive in any court or state bar hearing. 4) Can't bill for time previously spend researching issue for other client? e. Disbursements where client is liable must charge at cost you can't make a profit. (charging for in house i.e. copying must bill at cost). - Any agreement that makes ancillary costs a for profit venture is wrong.

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2. Value Billing (difficult to articulate in a k) a) Trying to bill based on value client receives & benefit lawyer gives b) It's better for the client c) Basically saying lawyer gets x and if client wins client gets more d) Based on results obtained e) People are getting more concerned about this because hourly rates are coming under more scrutiny. 3. Contingency Fee a. Obligation to pay is based on the results received usually in PI but not always. Can be used in business setting or criminal. b. Purpose of contingency fee: It allows poor people the opportunity to get into court. c. Must be reasonable d. Rule 1.5(c) "A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recover, showing the remittance to the client and the method of its determination." 1) Tendency in some cases have a statutory schedule for contingency fees, i.e. NJ & FL(p54&58) e. Issue of contingency fees: is it ethical to charge a contingence fee if the person can pay the hourly rate. It's not a violation to offer a contingent fee to someone who can afford an hourly rate. f. Argued it's an inherent conflict of interest because lawyer wants larger fee. g. A contingent fee can be unreasonable if there is little doubt there won't be a recovery. It should be unreasonable because if there is little risk the amount of contingency fee might be unreasonable. Right now it's not unreasonable to charge high % even if you know case poses little risk. Rule 1.8(j) " A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and (2) Contract with a client for a reasonable contingent fee in a civil case." h. Prohibited in Criminal and divorce cases.

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1) Contingent fee is prohibited by 1.5(d) in divorce actions but K can say in addition to my fee I will get x if you get more then y (this is really a contingent fee just not at the outset). Some states say this is a contingent fee & you can't do it. Other courts say its ok because you are getting paid up front. a) Can't really do anything other then hourly rate. b) Maybe you could get back support. c) In Pa. doesn't matter what type of domestic relation, you can't do a contingent fee. Maybe with trying to get prenuptial set aside where client has no money but if prenuptial is set aside the client would have money 2) Criminal: sometimes its in the clients best interest to take a plea and the lawyer might not recommend rather the lawyer would push for equitable even if there is little chance of winning i. Some states cap recovery depending on the amount recovered. 4. Fixed Fee- not changeable up or down. Always in simple actions because lawyer will generally not spend a great deal of time on it. a) To what extent is the client entitled to a refund in early termination? In Pa. can be justified if non-refundable if non-refundable retainer can be justified. It's economical for both client and attorney. b) In Iowa it is considered a non-refundable retainer and therefore unenforceable. 5. Retainers a. General Retainer- you pay x as a retainer so I will be available to represent you on an hourly basis at a rate to be negotiated 1) Guarantees availability (might not be available without retainer because the lawyer may have conflicted out of representation. Also lawyer might be busy. 2) Earned when it is acquired. b. Advanced Fee [Retainer (special)] (retainer on THIS case)- will cover work I will do for you, if I don't do it I'll give it back. Like a deposit, paid in advance for work. This has to be deposited with client funds not yet earned. Can withdraw down from it with notice to the client like deposit, paid in advance for work. c. Non refundable retainer- you pay me & don't get it back. 1) NY ct. holds this type of retainer unenforceable as against public policy. It chills right of client to discharge lawyer. 2) Some states hold that were the K provides for non-refundable retainer under discharge is volatile of public policy. (come to same result when applying reasonable fee). 3) Some states including Pa. says that there is no evidence that a nonrefundable fee is not per se unreasonable. Possible reasons for per se reasonableness forgoing other opportunities, guaranteed access to your time. 4) Where do you deposit Non refundable retainer?

18

a) There should be a separate account specifically for Non Refundable accounts b) If you could justify it as being earned when received, then could put it in your account. C. Commingling 1. Rule 1.15(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 the 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 property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation." a. Client's money must be held in separate account that bears interest. b. Putting your money into client's account is a violation of 1.15(a) because it may allow a creditor of yours to get to the client's money. Can't put client funds into your account. Can't put your money into client's account. In re Warhaftig- account consisted of client's funds. Wife needed treatment for cancer and son for metal health, both out of pocket. Kept record of amount he would earn at closing and writes himself a check for that amount prior to closing and at closing disburse rest to client. Paid himself in advance because he needed the cash. Audited and facts came out. No client had lost a 4 but it was a violation of 1.15(a). Disciplinary board said it was a withdraw of money he had an interest in. NJ Sup. Ct. disbarred him. Can't misuse client funds. In some states it's automatic disbarrment. c. Rule 1.15(b) "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 request by the client or third person, shall promptly render a full accounting regarding such property." - Promptly deliver to the client any funds or property the client is entitled to. When client wins have check made out to lawyer and client. Send the check to the client and have s/he mail it back. d. 1.15 (is not limited to fees) Safekeeping Property. Rule 1.115(c) "When in the course of representation a lawyer is in possession

19

D. E.

F. G.

of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved." e. Comment 3 to 1.15: Third parties, such as a client's creditors, may have just claims against funds or other property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. 1) If there is a legal right the third person has in the client's money you have an obligation to deliver. 2) If third party is just making a claim with proof you don't have an obligation to resolve. f. 3 Types of Accounts 1) Expense account- lawyers money to pay bills 2) A fiduciary account- client funds. 3) IOLTA- Pa. requires some funds to be held in IOLTA (Interest on Lawyer Trust Account) Funds that are little or will be in account for short time. The interest goes to state to fund certain projects. The interest goes to the state to fund certain projects. a. Texas IOLTA was held unconstitutional by U.S. Supreme Court. English Rule- Loser pays attorney's fees. Recoverable cost in action. Contingent fees are permitted. American Rule- attorney's fees are not part of cost of lawsuit. It does include court costs, stenographers. 1. It leads to a gap between poor, middle class and those that can pay attorney fees; there is an unserved market. Minimum Fee Schedules (Goldfarb) S.Ct. struck down a minimum fee schedule set by Va. Bar violated the Sherman Act. Court Awarded Fees p 163-4 1. Many federal and state statutes that shift fees where plaintiff gets attorney fees. a. RICO – federalizes certain types of fraud permits recovery of attorney fees and 3x damages b. Lodestar principle- Used by federal government to calculate attorney's fees is: hours x fee c. State consumer fraud statutes- allows for recovery of attorney's fees. d. Common fund cases- another way to get attorney fees. Represent class in a class action & gets benefit for the class that produces a common fund. Attorney's fees can come out of the common fund.

20

H. Mandatory Pro Bono Plans 1. There is a gap in legal services available to the poor or/and middle class. (Contingency fees work well in P.I. cases but not in business or commercial for smaller amounts of money) 2. ABA Rule 6.1 " A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should : (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means, and (b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to public service or charitable groups or organizations, individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights , or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organizations' economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) Participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support for organizations that provide legal services to persons of limited means 3. The rule is asperational only. Aimed to help people of limited means and financial support. 4. Pa. rule does not mention hour requirement. It is aspersational and can be done through financial support or legal associations 5. Neither rule really helps the poor. 6. Why not make it mandatory? A lawyer might not be able to afford it. It would require lawyers to carry the burden of the gap between those that can afford legal services and those that cannot. I. Who Gets the Money 1. Division of fees a. Within the firm it is up to the lawyers (Rule of thumb, charge client 3x more than what you pay the associate) b. Nobody regulates the system 2. Dividing fees between lawyers not in the same firm a. Rule 1.5(e) " A division of fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement

21

V.

with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of ally the lawyers involved; and (3) the total fee is reasonable. b. There is no proportion requirement in Pa. Pa only has parts 2 & 3 of 1.5(e). 3. Rule 7.2(c) "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 not-for-profit lawyer referral service or legal service organizations; and (3) pay for a law practice in accordance with Rule 1.17(sale of law practice) 4. Lawyer's liens a. Usually you can protect your fee in a discharge situation. b. Common law retaining lien right- to retain papers in securing fee. (in Pa. it continues to exist but if a substantial prejudice will exist to a clients interest then you have to turn papers over) c. Charging liens- lien on proceeds recovered in the case. You have a charge on the funds. Its superior to may other creditor liens. 1) In Pa. if fee is on a contingency basis you are entitled to a fee in if the contingency vests. 5. Rule 1.16(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 that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law." Concurrent Conflicts of Interest A. Client-Lawyer Conflicts 1. Conflicting interest that can restrict a lawyers choice of action 2. Rule 1.7 Conflict of Interest: General Rule (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (means in some cases lawyer can't proceed even without consent. When is it non-consentable? Lawyer can't reasonably believe he'll be objective) (2) each client consents after consultation (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or a third person, or by the lawyer's own interests, unless:

22

(1) the lawyer reasonably believes the representation will not be adversely affected; and (2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved." 3. It applies also to transaction in which, although the lawyer is not formally in an attorney-client relationship with the adverse party, it may fairly be said that because of other transactions an ordinary person would look to the lawyer as a protector rather than as an adversary. So long as the client may reasonably fee that he is dealing with a person whose advice and counsel should be given weight and respect, rather than as one whose words must be taken with that grain of salt that the law expects form people dealing with those who are not fiduciaries. ( The rule isn't limited to the role of acting as counsel) 4. In a business transaction between lawyer and former client the client is still viewed as a client for purposes of the rule. 5. Sleeping with clients a) Lawyer cannot reasonably believe he'll be objective b) Opportunity for reconciliation comes c) Economic grounds when there is fault divorce d) Hypo: lawyer uses deceit to get client to disrobe for physical exam. Rule 8.4 has basic shall nots 8.4(c) It is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit or misrepresentation e) Hypo: I'll give you my best representation for sex. 1) Violation of 1.7(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless (1) the lawyer reasonably believes the representation will not adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. 2) Violation of 8.4(d) It is professional misconduct for a lawyer to: engage in conduct that a prejudicial to the administration of justice. f) Hypo: can't pay have sex instead (prostitution) g) Real issue is pure consensual relationship where there is no deceit, provoked lots of interest. Ethics 2000 would recommend violation for a lawyer to commence sexual relationship with client after representation has started.

23

Violates 8.4(b) It is professional misconduct for a lawyer to: commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. 6. Business Transactions a) Rule 1.8(a) 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) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; (2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and (3) The client consents in writing thereto. b) Pa. rule omits the "fair and reasonable" requirement from 1.8(a)(1). c) A lawyer can take property instead of a fee but it will be scrutinized more. Comment 2 to Rule 1.5 A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyer's special knowledge of the value of the property - Would rather have property rather then under 1.8(a) b/c it requires a writing 7. Media rights a) Rule 1.8(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. b) It is not consentable, there is such a built in conflict it cannot be done 8. Financial Assistance and Proprietary Interest a) Rule 1.8(e) 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 b) What if you just wanted to loan the money? There are conflicts. The lawyer would not want to settle for less then client owes attorney. It leads to unfair competition between lawyers. (Is there something wrong with that? Real tension helping people get to court)

24

c) Rule 1.8(j) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case. 9. Fee-Payor Interests a) Rule 1.8(f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents after consultation; (2) there is no interference with the lawyer's independence of professional judgement or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6 (confidentiality of Information) b) Obligation is to the person you are defending 10. Related Lawyers and Significant Others a) Rule 1.8(i) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon the consent by the client after consultation regarding the relationship. b) Conflict: possibility of inadvertent breaches what do you have to say for consultation. c) How far do you carry this? People living together not covered by this rule. Some states say co-habitation; dating relationships are covered by this. d) Suppose lawyer doesn't tell client about relationship and large recovery against lawyer's client. Is there malpractice. Duty to disclose and breach but is there causal relationship with damages. e) Rule 1.8(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. 1) Client cannot consent to this. Greatest use is in preparing wills. 2) Concern is the undue influence B. Client-Client Conflicts 1. Civil litigation a) Directly adverse (it is really non consentable) Can a lawyer who represents one party represent the other party in the same action 1) 1.7(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents after consultation.

25

a. If representation of one client is directly adverse to other party. Client must consent after consultation and lawyer has to reasonably believe it won't adversely effect the representation. b. Some states say you can't do it c. Others say cannot do it in matrimonial cases. 2) Rule 1.10(a) Concept of Imputation (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2 a. Points out importance of screening policy to determine if there are conflicts. b. Almost impossible to conceive how its consentable b) Multiple parties on same side 1) 1.7(a) does not apply because they are not directly adverse 2) 1.7(b) (Could apply lawyer should determine whether he reasonably believes representation of one will be materially limited by representation of the other.) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected ; and (2) The client consents after consultation, When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. c) Unrelated Cases 1) Hypo: B asks you to sue A. You represent A on another matter completely unrelated to B's suit. a. Conflict: you may have access to information, less zealous in pressing B's claim. 1.7(b) issue 2) If you don't get A's consent. A can move to disqualify you as the lawsuit b/c you have a conflict and never obtained A's consent 3) 1.7(a) issue when getting A's consent. Have to get consent of both parties. 4) In effect you can't represent client suing a continuing client because you have to get continuing clients consent and have to believe it won't adversely effect the other representation. 5) Corporate Entity- some courts say suing an affiliate is okay as long as affiliate is separately/independently incorporated d) Cross examination of current client for different purposes 1) Can pose a conflict under 1.7 need consent of both parties.

26

e) Positional Conflicts- you want to argue for two different clients that have no economic interest in the other and you want to argue opposite positions in each case. 1) directly adverse to another client 2) representation may materially be limited by lawyer's responsibility to other client a. Do you nee client consent? Is it a conflict between parties? It might be, if it is, have to get consent. 1.7(a) b. Argument that it's not a conflict- going to give each the best representation I can. 1.7(b) c. Only applies if representation is adverse applies if I'm limited in my duties by other representation. 3) Comment 9 if lawyer arguing different in trail there is no real harm but in appellate court it might establish adverse precedent f) Civil liability- civil lawsuit based on claim of violation of fiduciary duty even if you have proof of malpractice the breach of conflicts rules might be malpractice but there has to be damage that flows from the clients legal position. 1) Some courts say emotional distress damages are not recoverable from malpractice. Some courts say it's recoverable as long as it is foreseeable. 2) Breach of fiduciary duty can lead to civil liability g) Does an opponent have standing to raise a disqualification claim when plaintiff's attorney has conflicting interest? 1) yes, have standing 2) Have to show injury to defendant's rights 3) No don't have standing 2. Criminal law Context a) 1.7 for ethics. Comes up in 6th amend context. Defendant has to demonstrate lawyer actively represented conflicting interest. 3. Representation in non litigation context 1.7(b) a) estate planning b) Corporation planning. c) If it’s a law firm cannot sue a current client on a totally unrelated matter even if its handled by a branch office in another state. d) If there are potential conflicts what can a lawyer do? Must lawyer say I can't represent you? No, under 1.7(b) lawyer must get consent and need to be able to believe there won't be materially adverse impact. 1) This is most violated rule in estate planning context. Some say by explaining problem will put both parties on edge. 2) Some practicing attorney's say shouldn't need consent unless conflict actually arises. Not the rule. The rule is if there is a possibility of conflict must get consent. e) Rule 2.2 A lawyer may act as an Intermediary in certain situations 4. Role rules of conflict play in malpractice. a) Couldn't they be liable even if there was no conflict?

27

VI.

b) The conflict makes it easier for a court to draw from a non-negligent act into an actionable negligence action. c) You represent 2 parties who have a falling out and sue each other. They both told you things. Neither party can exercise the attorneyclient privilege against each other. (when you represented in mutual endeavors) 1) To what extent do you have a duty to disclose information to one from the other in a common representation? (a) There's case law that suggests you should disclose (b) One way around get consent to have no privilege in subsequent litigation between the parties. (c) Waiver of confidentiality d) There is a rule that when parties are represented by separate lawyers in a common enterprise the communication between the lawyer and either party is privileged. C. The Advocate Witness Rule 1. Rule 3.7 (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony related 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 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 Rule 1.9 2. Basis for the rule. a) Conflict of interest between lawyer and client. Example lawyer might have interest in presenting facts in a way that client is not guilty of anything. b) It is not consentable c) Prejudice opposes party. Jury might be swayed if lawyer testifies and is acting as an advocate. 3. Rule 3.7(b) no per se disqualification of another lawyer in your firm. Lawyer that will testify isn't precluded from working on the case pre-trial. There are exception to the disqualification. Successive Conflicts of Interest A. Private Practice 1. Rule 1.9 deals with successive representation 2. Rule 1.9(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which the person's interests are materially adverse to the interests of the former client unless the former client consents after consultation. (Successive representation that prohibits a lawyer in some situations from representing new client.)

28

a) It is consentable b) Most courts in applying "Substantial relationship" Test: Based on factual issues to see is there a possibility the attorney could have acquired confidential information that could be used in second representation. 1) Look at factual issues in representation not legal issue to determine representation. 2) If lawyer could have obtained confidential information that would have been relevant in the second suit. 3) Most courts don't permit discussion of reliability if you could have obtained confidential information, does not actually inquire as to what was actually said. 4) If a lawyer can't represent a client a partner in his firm can not represent the client under rule 1.10(a) c) What if lawyer goes ahead and represents party? 1) former client can move to disqualify attorney 2) 2d Cir. will only disqualify when the issues are identical or almost identical. Removes choice of attorney. 3) If lawyer has co-counsel, courts are split. Usually co-counsel does not get disqualified unless she is privy to confidential information d) A few cases that have said where you represent someone over substantial period of time even if its not the same matter it is still "substantial relationship" because you get to know former client's strategy, policy, etc. 3. Who is a former client? a) Developing case law is clear that a perspective client is owed a duty of care and a duty of confidentiality b) As an attorney what do you do? Don't get into confidential information. c) Cases are developing a rule different from rule 1.9(c). Lawyer isn't barred from representing a client opposed to a prospective client as long as lawyer has not gotten significant confidential information or lawyer who took the information is screened from lawyer in the firm taking the case. d) Rule 1.9(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client

29

e) Lawyer gets information from a 3rd party working in relations with client lawyer doesn't represent 3rd party (ever). In this situation treat 3rd party as a client b/c they are really involved in the same enterprise. f) Can a non-client who gave lawyer confidential information during negotiation with lawyer's client prevents lawyer from representing a new client who would benefit from non-client confidential information? The confidentiality rule doesn't protect non-client because he is not nor ever was a client. g) In multi representation neither client can assert attorney client privilege regarding information against the other in subsequent litigation. (Under 1.9(a) there is no confidence to protect) 1) Most court's still say disqualification because you owe a duty of loyalty to the former client. h) Hypo: law firm represents xyz on small on going matters. B walks into office & wants to sue xyz. Can lawyer represent B while also representing xyz? Assuming its directly adverse 1.7(a). Can't sue a client on an unrelated matter. 1) Suppose lawyer says forget xyz, I'd rather represent B, I'll withdraw as attorney to xyz. a. Supposing lawyer w/draws can he sue xyz of behalf of B? 1.9(a) Is it a substantially related matter in which there's a materially adverse interest of former client? It's not substantially related therefore you can represent and don't need consent. b. Withdraw under 1.16(a) mandatory under 1.16(b) permissive withdraw. c. In this context the court doesn't permit withdraw because it doesn't come under what is contemplated under 1.16(b)(5) or (6) i) General Rule regarding economic interests: In different matters Representation of competing economic interest isn't enough to make it materially adverse. B. Imputed Disqualification and Migratory Lawyers 1. Can a firm represent a client who want's to sue a client who left the firm with a lawyer, can the firm take the client? a. Under Rule 1.10(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from 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 information protected by Rule 1.6 and 1.9(c) that is material to the matter? b. If the matter is substantially related but no one in the firm has confidential information the firm can represent the new client.

30

2. When lawyer moves from firm and P wants to sue D. Lawyer at x represented P. Lawyer moves to y and now wants to represent D can lawyer do that? a. Start at 1.9(a) it is banned because it is the same or substantially related where interests are materially adverse. b. Can one of the partners represent D? No imputation under rule 1.10(a) 3. Migratory lawyer carries conflict with him. 4. What is a screen? The types of institutional mechanisms that have been determined to protect successfully the confidentiality of the attorney-client relationship include: (1) instructions, given to all members of the new firm, of the attorney's recusal and of the ban on exchange of information; (2) prohibited access to the files and other information on the case; (3) locked case files with keys distributed to a select few; (4) secret codes necessary to access pertinent information on electronic hardware; and (5) prohibited sharing in the fees derived from such litigation. a) The screening devices must be employed as soon as the disqualifying event occurred. 5. What about migratory parlegals or summer associates? Same rules apply but there is a screening mechanism. 6. Rule 1.11 deals with revolving door between public and private sector. (a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is screened from any participation in the matter is apportioned no part of the fee therefrom; and (2) Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of the rule. (b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interest are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom (c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: (1) participate in a matter in which the lawyer participated personally and substantially while in private practice or non-

31

VII.

governmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or (2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by rule 1.12(b) and subject to the conditions stated in Rule 1.12(b) (d) As used in this rule, the term "matter" includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency (e) As used in this rule the term " confidential government information" means information which has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public. Ethics in Advocacy A. Lawyer acts as an advocate for each side. (Doesn't have obligation to unearth the truth and bring it forward) Bring forward facts most favorable to your client B. Are Lawyer's Morally Accountable for their Clients 1. People judge lawyer's based on their clients 2. Rule 6.2 A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause a. Can only decline appointment by court based on strict reasons. b. One reason is repugnant to lawyer other then this rule when your mandated to represent a person by the court it can be voluntary. c. You're free to decline representation other then 6.2 3. You have a right under Rule 2.1 to advise client that you don't like what the client is doing. You can withdraw C. Truth and Confidences- Tension between client lying and your duty to the court. How do you balance responsibility to keep confidences v. duty to court and judicial system? 1. Lawyer's responsibility to court regarding accuracy as to what lawyer says a) Rule 3.3(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

32

b)

c)

d)

e) f)

g) h)

i)

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures 3 key rules regarding lawyers duty of truthfulness 1) 3.3(a) 2) 4.1(a) (lawyer may not make a false statement of fact or law to a 3rd party) In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact of law to a third person 3) 8.4(c) It is professional misconduct for a lawyer to engage in conduct involving dishonesty fraud deceit or misrepresentation If court asks prosecutor about Defendant's criminal history. If defendant lawyer isn't making a statement regarding previous offenses then cases say there's no breach of 3.3(a)(1) because he's not making any statement. Under the model rules it would be a violation of confidentiality under Rule 1.6(a) to disclose other offenses if the client told lawyer about the other convictions. 1) NJ adds- 3.3(a)(5) " fail to disclose to tribunal a material fact with knowledge that the tribunal may tend to be misled by such failure" (p224) What if court asks defense lawyer has your client committed other crimes? Lawyer cannot lie and say no under 3.3(a). Say it is not my responsibility. There may be questions a lawyer does not want to answer or doesn't have to answer but cannot lie to the tribunal. Where the court puts a direct question to the lawyer, the lawyer may not reveal the client's confidences, the lawyer, also, must not make any false statements of fact to the court. If it's a question the court has a right to ask, if you don't answer you can be held in contempt. If court asks client & client lies and lawyer knows. Rule 3.3(a)(2)A lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client Gray areas1) Lawyer goes into court to represent client (who's dead) doesn't include this information b/c the lawyers have agreed on a settlement and the other side will not make the offer in court. Doesn't this violate 3.3(a)(1) by appearing you are telling the court you're there on behalf of a party and that's not true. It is a violation of 3.3(a)(1)

33

2) Ct has to agree as to lawyer's fee. Lawyer makes side agreement with client that client will pay lawyer more and not tell court. Violation of 3.3(a)(1) 3) Mere silence is not a violation under 3.3(a)(1) there is no duty to inform court of every fact except in New Jersey. D. Lawyers Obligation when the Client is the one Lying 1. Civil a. Try and convince client to tell the truth b. You cannot just keep quiet because it would violate 3.3(a)(2) assisting a criminal or fraudulent act of a client. Violates 3.3(a)(4) a lawyer shall not offer evidence that the lawyer know to be false. If lawyer offered material evidence and comes to know of its falsity the lawyer shall take reasonable remedial measures. (I.e. must inform the court). 1) 3.3(a)(2)&(4) cannot facilitate perjury and if the lawyer knows about it must correct the perjured testimony. c. If client insists on lying you can say " If you lie I must disclose that to the court, I have no discretion in the matter." Or you can withdraw under 1.16(a). Must withdraw if it would violate rules of professional conduct or 1.16(b) permissive withdraws. 1) What do you tell the court when you withdraw b/c client is lying? Normally court should accept withdraw for professional reasons. Problem occurs when court wants more. Concerned about minimizing damage to client 2) Do you have an obligation to tell clients new lawyer why you withdrew? No, should say I can't tell you because of Rule 1.6 d. You just don't believe client, can you go ahead and represent client?(Client suddenly remembers) 1) Rule 3.3(a) says lawyer may not "knowingly" 2) Here lawyer doesn't know (meaning actual knowledge of fact in question, knowledge can be inferred from circumstances, It's actual knowledge not what a reasonable person thinks) so he can continue representing the client. 3) You can ethically represent the client. e. If lawyer finds out after trial is over & client got a favorable verdict 1) 3.3(b) The duties stated in paragraph (a) continues to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 (Cut off date is conclusion of the proceeding for duty under 3.3(a).) 2) If proceeding is final there is no obligation. The next step, consider 1.6 3) Fl says you still have a duty after the conclusion of proceedings 4) Client told you something confidential under 3.3 don't have obligation to disclose. Con you disclose under 1.6(b) look at state variations.

34

2. Criminal Context a. 6th amend cases, effective assistance of counsel. b. Lawyer says if you testify & lie. I'll have to advise the court & I will withdraw if you insist on going ahead with this. 1) the lawyer acts consistently with 3.3 2) Test for 6th Amend cases: Reasonable probability for believing verdict would have been different if there had been reasonable effective assistance of counsel. 3) Under 1.7 there is no 6th amend violation when there was only a potential conflict. There has to be actual representation of actual conflict. 4) If lawyer's conduct/ advice is pursuant to 3.3(a)(2) it is effective assistance of counsel 5) Can a lawyer in a criminal case properly examine client on the stand as to non-perjurious parts of the case? You cannot ask questions about perjury. Don't have to reveal to the court that the client is lying. You cannot refer to the perjured testimony in closing. Telling the court is a violation of ethics rules. a) Idea in criminal case the person is fighting for liberty and should be allowed to tell his story but lawyer can't help. b) It's hard to withdraw in a criminal case. c) Is the best approach in criminal case to never ask client what happened? ABA says your closing your eyes to facts that could help. d) Tyson case- lawyer in R.I. has contingency fee with witness who was asked about it in a case in Indiana. 3.3(a)(2) probably doesn't apply because he is not involved in the trial. E. Fostering Falsity or Advancing Truth 1. Cross-Examining the Truthful Witness a) You can assume your client is telling the truth but doesn't have to testify. b) What if witness saw your client run from the bar and your client did but you ask questions like how well could you see, were you drinking, etc., is this an ethical problem? No, you're entitled to test the truth, the rules weigh in favor of the adversarial process. 2. Appeals to Bias- remarks designed to prejudice jurors against the other party. a. Held to be objectionable under Rule 3.4(e) lawyer cannot allude to any matter that the lawyer doesn't reasonably believe is relevant. (legal relevance to proceeding) b. Pa. version doesn't have the same language. Pa. doesn't include "lawyer cannot allude to any matter that the lawyer doesn't reasonably believe is relevant" 3. The Boundaries of Proper Argument a) Arguing false inferences

35

1) Can lawyer argue to jury that testimony of other sides expert witness shows client wasn't at scene even though client was at the scene? Criminal Cases (a) Defense lawyer must argue a false inference. (According to federal judges) because defendant is entitled to effective assistance of counsel under 6th amend. (b) Is there an ethical issue? Maybe under Rule 1.1 competence but probably not. (c) Prosecutor may not argue for a false inference. Rule 3.8 duties of prosecutor. 2) Civil cases- can lawyer argues for false inference? Doesn't come up much b/c client will usually testify anyway. There is no rule that says you cannot 4. Literal Truth a) In context of civil litigation. What can lawyer do if witness evades the truth, it's the lawyers responsibility to recognize the evasion. 1) Lawyers responsibility to recognize and to cross-examine and probe. 2) Can a lawyer tell client to give an evasive answer but don't lie? Danger of giving that advice 5. Coaching a) Lawyer explains law & then asks client what happened. Is it ethical? The danger is you might be telling the client the facts that are needed. You're telling the client what to say. Might be exception to client privilege if its fraudulent. b) Lawyer's coach all the time & it’s a good thing to do. The danger is when it slides into telling the client what to say 6. Exploiting Error- Defendant charged with robbery. Victim says it happened at 8 a.m. but you know it occurred at 7 a.m. Can you produce witnesses that say truthfully they were w/ defendant at 8? Yes 7. Silence- Defendant was injured previously and reinjured, testifies but doesn't mention original injury.(Prof. Would have found implicit misrepresentation by client) a) 3.3(a)(1) can't make false statement to court b) 3.3(a)(2) can't assist client with fraud (as used in the rules means misrepresentation doesn’t comprise omission) c) Fl court says the defendant's omission is a fraud. d) There are circumstances where failure to make a disclosure is equal to a misrepresentation. e) On the other hand lawyer doesn't have to bring all information to the court's attention except in N.J. 3.3(a)(5) 8. Lawyer doesn't have responsibility to bring everything relevant to courts attention. F. Frivolous Positions and Abusive Tactics 1. When does what you think is a failure to disclose (okay) blur with implicit misrepresentation (not okay) just remember it is a fuzzy line.

36

VIII.

2. Rule 3.1 3. Rule 4.2 4. Improper argument a. 3.3(e) . . . a lawyer cannot " assert personal knowledge of facts in issue except when testifying as a witness or state. 5. Witnesses a. Rule 3.4(b) b. Pa. lawyer cannot pay witness contingent on testimony but can pay reasonable fee for professional expert, expenses reasonably incurred in connection with testimony G. Dilatory Tactics 1. Can be a violation of Fed. R. Civ. Pro 11 2. People delay for lots of reasons: economic, ground other party down 3. Rules that prohibit 3.2 a lawyer shall make reasonable efforts to expedite the litigation consistent with the interest of the client. (It's really just saying don't run up fees) H. Hardball- the opposite of "hardball" apparently is "civility". Committees and commissions nationwide have called for a return to civility, the assumption being that it was a place lawyers once made their home. I. Misstating Facts, Precedent, or the Record 1. Suppose a client lies in a deposition do you still have same responsibility as you do in open court? Rule 3.3(a)(2) &(4). There is a lot of authority that treats it the same. 2. Rule 3.3(a)(2) 3. Rule 8.4(a) 4. Rule 3.3(a)(1) J. Obligation to Reveal Directly Adverse Legal Authority 1. Where the subject is legal authority, there can be no claim that the information is a client confidence. 2. Rule 3.3(a)(3) requires knowing conduct and directly adverse 3. What is directly adverse? a. Narrow –has to be decisive to my client. Comment appears to support this. b. Broader- is the decision one in which the court should clearly consider in deciding the case (ABA opinion) K. Ex Parte Communications 1. It is prohibited 2. Rule 3.5(b) 3. Ex parte means lawyer for other party isn't present purpose is to preserve fairness. 4. Contrast 3.3(d) with 3.5(b) there are permissible ex parte proceeding b/c it is important to get relief as quickly as possible. 5. Lawyer has responsibility to bring everything relevant to the court attention 3.3(a). Special Issues in Criminal Advocacy A. Prosecutors: Rule 3.8 places higher duty on Prosecutors

37

1. 3.8(a) &(d) 2. 3.8(f) is most controversial b/c prosecutors have tended to subpoena defense attorney's to testify about fees and who the client is and who paid (generally not privileged) and shouldn't be able to subpoena lawyer unless you can't get information another way. 3. Pa. doesn't have statute. Not applicable to federal prosecution B. Destruction or Concealment of Physical Evidence 1. Civil case no subpoena no document demand served, can you destroy documents? a. 3.4(a) cannot alter, conceal or destroy documents that might have potential evidentiary effect or counsel client or help client to do so. b. The word unlawful leaves the question open c. Could argue unless there's a statute or document demand could destroy. On the other hand Prof says it’s unlawful b/c there are some authority that says so. Could argue it's an obstruction of justice under 8.4 2. Documents have been subpoenaed or documents demanded it would be unlawful to destroy 3. No suit has even been filed? And client has all these records can he destroy them? Yes, people destroy records every once in a while. Can't construe as unlawful to violate the ethical rules. 4. What happens in criminal context where defendant gives lawyer evidence? a. Is lawyer entitled to keep evidence? No, b/c you're depriving the prosecution of relevant evidence. It could be illegal to maintain it. 1) You're permitted hold onto it for a reasonable amount of time to have you expert test it. 2) Cannot hold on to contraband(stuff that's illegal to hold) b. What if you decide you don't want it anymore? If lawyer has evidence it's his responsibility to turn it over to authorities c. Observation of evidence is protected by attorney/client privilege but once you take possession, you must turn it over. d. Lawyer turns over property and prosecution wants to know where it came from. Lawyer says that information is privileged. Court says there is an exception and you have to tell where you got the property. e. What about telling from whom lawyer got particular evidence? Some courts have held an exception to the privilege and the lawyer must tell. f. Prosecutor cannot tell jury the source of the information if it comes for the defendant's lawyer. g. What if you say I don't want the evidence and client says okay, I'll just throw it away. Under 3.4(a) cannot counsel client to obstruct or destroy evidence. 5. Lawyer's responsibility with respect to destruction or obstruction of evidence Rule 3.4(a) a. Civil context-can lawyer destroys documents that may be danger to a client? Depends on how you read "know". Does word unlawful

38

IX.

extend to conduct that is more than a violation of a statute? Most agree it does extend. 1) Prof. Feels that rules carrying a sanction should be read narrowly. 2) When a lawsuit has commenced the destruction of evidence would violate 3.4(a) according to commentators its unlawful even if not criminal statute. (Prof. Thinks this is wrong). b. Criminal Context 1) Can lawyer destroy evidence? Not if it's unlawful or a crime. 2) If no applicable statute go through same analysis as civil. 1. Civil case no subpoena no document demand served, can you destroy documents? 2. 3.4(a) cannot alter, conceal or destroy documents that might have potential evidentiary effect or counsel client or help client to do so. 3. The word unlawful leaves the question open 4. Could argue unless there's a statute or document demand could destroy. On the other hand Prof says it’s unlawful b/c there are some authority that says so. Could argue it's an obstruction of justice under 8.4 5. Documents have been subpoenaed or documents demanded it would be unlawful to destroy No suit has even been filed? And client has all these records can he destroy them? Yes, people destroy records every once in a while. Can't construe as unlawful to violate the ethical rules. 3) Obligation to turn over evidence w/out request. Fruit of crime, instrumentality of crime and other tangible evidence of the crime. 4) Lawyer shouldn't accept evidence from client but if s/he does and doesn't turn it over it may violate 3.4(a) & 8.4 C. Reporting Cash Receipts 1. IRS requires people who receive $10,000 in cash you have to report it. Would be proper to adverse client of obligation to report it. 2. Client's name in payment isn't privileged. 3. Revelation as required by law does not offend the lawyer's confidentiality obligation under the model rules even though Rule 1.6 contains no exception for duties imposed by law. Lawyers for Entities A. Conflicts and Confidentiality in Enterprise Representation 1. Rule 1.13 representing entities. a. Makes clear that if lawyer represents organization the lawyer only represents organization and not employees or officers. b. Works the same for government organizations. This rule can apply to local governments. The individual (police chief, etc.) are not the client. The institution is the client. It can also apply to educational institutions.

39

2. 1.13(d) Lawyer shall explain the identity of the client when it's clear that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing (basically a Marinda warning I represent the organization not you, I'm interested in the best interest of the organization.) 3. Hypo: Lawyer represents the corp. Lawyer has a lot of conversations with CEO. The corp. gets new management, and sues former CEO. New management wants to ask the lawyer what conversations lawyer had with former CEO Can the lawyer object and say this is confidential information? What is the argument that it is not confidential? That the former CEO was not the client. The lawyer represents the organization. Who does the privilege belong to? The corp. It is privileges matter, but it is the client who controls the privilege. And the client is the corp. Now the client wants to waive the privilege and the client is entitled to do that. The CEO is not the client. a. In small corps. Some courts will find a lawyer-client relationship with the business and the individuals. b. 10th circuit has held that if the lawyer in talking to the corp. officer gives the officer advise, then there can be an attorney-client privilege. 4. Hypo: Lawyer is house counsel. Lawyer learns from corp. officer that officer is making illegal pay-offs to foreign countries to get business. The pay-offs violate a statute. The information comes up in normal conversation. The question is how do you work this out under 1.13? (b) and (c) deals with how the lawyer for the organization should deal with this sort of situation. 1.13(b) deals with a violation of a legal obligation to the organization that could result in a substantial injury to the organization. Is his hypo the type of conduct that is dealt with in the 4th and 5th line of 1.13(b)? the conduct needs to be action that would be corp. action – action for which the corp. would be punished. What does substantial injury mean in this context? Can you say there is no substantial injury if the corp. is making money from the conduct? You can have punishment on the corp. and if it does that can constitute substantial injury. It is a mandatory duty to proceed in the best interest of the corp. First, you talk to the officer and tell them that they should not be doing the action. Then the lawyer takes it up to the highest levels, and the highest level decides that it is something they are going to continue with. The lawyer may resign only if it is Clearly a violation of law. What is the purpose of the rule requiring the lawyer to go through these steps? Is the lawyer free to just go and tell somebody that this conduct is going on? If the lawyer does resign, then what? Can the lawyer do anything else? The lawyer may resign under 1.16. Outside client can withdraw at anytime. Resign seems to protect corp. counsel. It says that you are entitled to resign and you are not breaching any K obligations if you decide to do so. At this point, you've taken this matter to the highest

40

officers in the corp. and they say to get lost. So what happens? You can resign. Can you tell anybody? What do you go to to determine if you can tell anybody? 1.16 does not give the lawyer any specific rights to say anything, but then 1.6 kicks in as to whether or not you can say anything. . What is the answer under the Model Rules? – Probably not, b/c it is only talking about violent crimes. In any particular state the version of 1.6 can differ, so you need to check. Pa. permits disclosure for many more reasons than the model rules. The board says to forget about it. Can the lawyer do that? 1.2(d) – candor in a non-litigation context. You cannot assist a client or encourage them to engage in a wrongful act. Suppose you believe that it is a crime and that the state ethics law requires you to report information to prevent a crime? Do you have to go through the internal exhaustion of remedies? How can you know what the high officials will decide if you don't ask them first? Maybe they will decide to stop the conduct. What does it mean by violation of law? Does it have to be a positive violation of substantive criminal law? Or is it conduct that can result in financial penalty? The answer is not clear. B. Retaliatory Discharge and Whistle Blowing 1. Remedies for discharge on the part of the attorney. Here we are most talking about in-house counsel. 2. Attorney has insisted on probe of drug use of employees, and he insisted on fair payment of employees. He gets fired, so he brings a lawsuit. If you talk about lawful discharge, if someone has a K, then usually you are dischargeable only for cause. This is not the situation under which cop. Attorneys are employed. What happens here is the lawyer asserts two claims: 1) lawyer claims based on an implied K. He didn't have an express K, but he asserts that he had a K in fact. The court suggests that the lawyer sets forth enough facts in his complaint to justify at least a cause of action for implied K. Implied K is inherently factual. He was hired as a career oriented employee, he was promised substantial retirement benefits, etc. What is the company's position? – They are going to claim that it was never promised. It was only if they were happy with him. 2) Lawyer claims he was fired for insisting that they comply with public policy. Some courts have imposed a public policy provision that if someone is terminated relating to their insistence upon complying with some public policy, that they have an action in tort. Retaliatory discharge. 3. When lawyer is fired for insisting corp. comply with legal obligations. Why should lawyers be treated differently from other employees that insist corp. apply with laws. a. Actual K (most protective) b. Implied K with for cause requirement. Under circumstances that was an implied agreement employee would only be dismissed for cause.

41

X.

Hard to prove, very fact specific. Hard to establish that type of implied K. c. Tort theory for retaliatory discharge- protects employee if firing is motivated by employee's insistence of corp. complying with regulations. The employee is discharged for insisting corp. comply with regulations or insist on corp. compliance with legal obligations. d. In California- comply with statute and truly important policy 4. Protection for Associates a. NY retaliatory discharge in law firm contest where lawyer insists on reporting and is fired that's inconsistent with obligations to report. (Case was resolved on implied K theory). NY doesn't recognize retaliatory discharge for anyone but in the case of a lawyer in a law firm there's an exception b. Texas rule: there is no retaliatory discharge rule for lawyer fired from law firm for insisting on reporting a violation. C. How do you apply the general rules to corp. lawyers? 1. Ill. Won't apply retaliatory discharge to lawyer b/c: a. Lawyers have obligation to maintain confidentiality and if you allow lawyer to sue it breaches the confidentiality. b. Ethical restraints –cannot help client in wrongful conduct so don't need the suit as incentive. 2. California Retaliatory Discharge Rule a. If conduct is pursuant to a mandatory ethical obligation we'll give lawyer the tort. b. If it's only ethically permissible but not mandatory it's a different rule. Still it first has to be important public purpose (like other employee) and lawyers action must be (funded) acting in ethical rule or statue specifically permitting lawyer to take this action. What gives lawyer right to voluntarily disclose? 1.6(b)(2) allows for disclosure. (Assuming lawyer is allowed to sue) 3. Rule 8.3(a) imposes obligation on lawyer to blow whistle on lawyer's that violates ethical rule. Mandatory that raise substantial questions as to that lawyer's honesty, trustworthiness or fitness of lawyer in other respects. a. Limited by 8.3(c) doesn't require abrogation of client confidentially. If you learn of it from client it’s the client's choice to report. 4. Rule 8.4(b) criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. a. What if lawyer is dealing drugs? Goes to trustworthiness. b. If you get a violation of an ethical rule as long as you raise a substantial question of honesty, trustworthiness or fitness of lawyer in other respects. Judges A. Conflicts and Disqualification 1. Have to be disqualified b/c of conflicts of interest. Sources of authority a. ABA- code of judicial conduct §3e (p578) b. Federal Statute 28 U.S.C. §455 (p652)

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c. Pa. Code like federal code but says a judge "should do this, should do that"(this language is permissive, it is the standard but not mandatory) "Should" means this is the normal rule, you should follow it but if you don't we'll look at surrounding circumstances. 2. Disqualification a. §455(a) Have to interpret to apply when judge doesn't know he had a financial interest but when it comes up s/he should disqualify himself b. §455(d)(4) c. §455(b)(4) financial interest or any other interest that could be substantially effected. (ABA rules define economic interest is ownership of more then de minimis amount) Code of Conduct Applicable to Judges Disqualification of Judge ABA Judicial Code Federal U.S.C. General 3E(1) 455(a) Actual personal bias 3E(1)(a) 455(b)(1) Financial 3E(1)(c)(term 455(b)(4) "however small" Relative 3E(1)(d)(broader) 455(b)(5) Duty to Keep Informed 3E(2) 455(c) d. Financial interest §455(b)(4) and 3E(1)(c)- shall disqualify if has a financial interest. Each code has a terminology section defining words. Key thing about the definition of financial interest is federal says financial interest however small. ABA economic interest as long as greater than de minimus. 1) Under the federal rule if judge discovers he's got a financial interest that is however small but not big enough to be substantial, then the judge need not disqualify himself if judge divests himself of the interest. Judge has to know of the financial interest. 2) Also applies where relatives have interest. (The relatives covered are different in the federal code and the ABA) 3) L v. HSAC over ownership of St. Judes. J. Colmen finds for L. Afterwards Judge realizes he has an interest b/c he's a trustee of Loyola which has a strong interest in the outcome of the case. L needed to win to benefit Loyola. Judge said he didn't Know of the interest so statue 455 (b)(4) doesn't apply. S. Ct. says should have disqualified himself under 455(a) which doesn't depend on whether judge didn't know, the public might have reasonably believed he knew. Therefore judgment should be opened. e. Judge has personal bias or prejudice 455(b)(1) & 3E(1)(a) 1) ABA-concerning a party or party's lawyer. 2) Code doesn't mention party's lawyer but it's applied. (Rules are the same) 3) A judge who becomes disposed (or biased) against a party because of what she learns in doing her job- like hearing evidence will not in this view trigger (b)(1). Judges are supposed to form opinions based on what they learn while judging. That's what judging is all about.

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4) 455(b)(1) has to stem from something that's happened outside courtroom unless the judge shows a deep seated favoritism/bias so far judgment isn't possible. Opinion formed by judge biased on what he's read about lawyer. (Expression of irritation aren't enough) a) What if comments are made based on your past performance before the judge? It could be extra judicial. b) Even if judge is unhappy with lawyer and it's not a violation can you apply general rule? Yes, showing impartiality might reasonably be questioned. f. Relatives 1) Judge's daughter is a partner in firm that's arguing before court? a) Under II the daughter would have to be before the court. b) Under III if it’s a big case and more money to partner could possibly have to disqualify judge(Becker's thought) c) Another substantial factor would be whether the relative would share in fees. S.Ct. Justices will excuse self if relative is partner in firm that will receive profits unless letter from firm saying that relative won't receive any profit. 2) Law clerks can negotiate for employment with a firm appearing before the court as long as judge is told. 1.12(b) a) What if law clerk is member of Plaintiff class? Maybe 3E(1)(a), the general rule would apply b/c it doesn't require an actual bias. g. Expressions of Gender, Racial & Other Bias 1) Judge decides based on gender stereotypes could find disqualification's under 3E(1)(a) & 455(b)(1) actual personal bias or the general rules 3E(1) & 455(a). 2) When judge goes ahead with the trial the remedy is a reversal & new hearing 3) Focus on the conduct w/in the courtroom. Iverson. Where judge makes ruling on or during case based on gender bias Violation under 3E(1)(a) or 3E(1). a) If judge's conduct falls within those categories must disqualify self or disqualification retroactively. 4) Code of Judicial Conduct Cannon 2 A & 3B4. Ethical violations worthy of discipline. Checks on judicial conduct in respect to in court behavior. a) Cannon 2A – a judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities b) Cannon 3B4- a judge shall perform the duties of judicial office impartially and diligently. 5) Comments of the Bench a) Racist comments-covered by 2A for other government employee's 1st amendment protects public speech (public

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XI.

issues) but there's a suggestion that speech interferes with public duties, 1st amendment might not apply. b) 3(b)(5)-(6) also address racist issues (don't need to know) c) Cannon 2C a judge shall not hold membership in any organization that practices invidious (illegal) discrimination on the basis or race, sex, etc. 1) Notes say even if just arranged meeting with organization it’s a violation under 2A. Does judge have a 1st amendment right to fee association when organization practices discrimination but it's not unlawful. 2) In states that do not have 2C a judge that discriminates against groups it's a violation of 2A under the "integrity & independence of the judiciary" h. At one point a judge had a duty to sit & should be leery about disqualification. It has been replaced with statue judge should resolve disqualification in favor of the disqualification. Negotiations and Transactional Matters A. No specific rule dealing with negotiations or transactions but keep in mind Model Rules 4.1(a) and 1.2(d). 1. How literally is 4.1(a) to be applied? Hypo: negotiating with another lawyer make offer and say my client won't pay more & it's not really a great case. See comment 2: In negotiations people are expected to lie about certain things so those things aren't treated as fact. Envisions an acceptable category (of false statements) of exceptions. B. Different situations where rules apply 1. Where client tells you here's information don't tell the other side and the information relates to a crime or fraud, can you continue to represent client in negotiations? No under 1.2(d) a. If you go ahead and the other party finds out it would be basis for rescinding agreement, fraud suit against client and maybe attorney. b. Tell client I can't assist you if you do that and it's bad policy, if other side finds out you could be sued. c. You can withdraw under 1.16(a). You need permission only if the matter is in litigation. d. Can you say anything to other party or next lawyer? 1.6(b) confidential information related to representation. 1.6(b) exceptions- just say I can't/won't discuss it with you. (By saying for professional reasons you're tipping off new lawyer that client lied). e. Document executed negotiations done and then find out that client kept information important to negotiation from lawyer (i.e. h walked away with 3 grand that w didn't know about). 1) If lawyer reveals it's a violation of 1.6(a). 2) 1.2(d) doesn't apply b/c lawyer's not helping commit a crime or fraud. 2. You've transmitted to other lawyer document's that say clients assets are 1.2mil but you know its 1.5. Almost same situation as #2.

45

B.

C. D.

E.

a. 1.2(d) prohibits you from continuing. b. Comment 15 to 1.6 lawyer may disaffirm any document or withdraw any document. It's permissive, rarely done, buried in obscure comment. 3. What do you do when client says I don't want other side to know? If you go ahead and keep quite it's an affirmative statement in violation of 4.1(a). The lawyer can no longer represent b/c lawyer negotiating a deal based on client's material misstatement would help client with fraudulent act. Under 1.16(a)(1) lawyer must w/draw when representation would violate rules of professional conduct. If you go ahead with representation allows client to go ahead with criminal or fraudulent act would be a violation of 1.2(d). a. Comment 15 to 1.6 was set out in case in the book. L represented company who's chief assets are accounts receivable. L represents client on getting loan, give opinion saying outstanding debts due to corp. are enforceable. Client gets loan and tells L it made up outstanding debt and were going to use them to get more loans with new lawyer but want L to represent company in other matters. L cannot continue to represent corp in getting loans based on false document. Does L have obligation under noisy withdraw comment? 'Entitled to withdraw opinion in order to fully effectuate withdraw. It may be mandatory if documents will be used in future frauds under 1.2(d). b. What if deal is done and after client tells you about the concealment. Do you have a right or duty to do anything? The fraud is over/done no violation of 1.2(d). Can you say anything? NO UNDER 1.6(b)(1). Maybe under Prof. Hazard's 1.6(b)(2) if disclosing will prevent me from being charged in a crime (very rarely used, weird). 4. What if document calls for continuing payment? After deal client tells you he has more money 1.2(d) could argue by keeping quiet you are assisting client to commit fraud. 3 rules to keep in mind regarding transactional work 1. 4.1(a) 2. 1.2(d) 3. 1.6 Rectify Consequences of Past Acts 1. Pa. rectifies criminal fraudulent act in which lawyers services were used. What if h says we've never talked about it bust I had affair with w best friend? Code defines fraud not to include negligent misrepresentation or failure to apprise another of relevant information. If the subject comes up can't lie and will have to withdraw. 1. Sometimes court overrides the distinction. Between silence and on affirmative misstatement. 2. Sometimes failure to disclose can be same as affirmative misrepresentation comment to 4.1. Bargaining technique

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XII.

1. Sell back stock & won't tell police about embelezment can a lawyer do that? There's a crime of extortion (securing agreement under threat). If they are unrelated it's extortion. 2. Guilty of domestic abuse if you sign won't tell police different civil claim is related to criminal threat. F. Lawyer's obligations(mandatory provisions) and rights(permissive provision) with respect to fairness of agreement 1. Hypo: Agreement completely one sided in favor of your client other lawyer didn't ask for anything and didn't do a good job. Is there an ethical obligation that keeps the lawyer from drafting this agreement? No. a. 8.3(a) Lawyer must report another lawyer's violation. Wouldn't apply in this situation. What if other lawyer is completely incompetent? Rule 1.1 before a lawyer would be sanctioned here has to be a pattern. (Still no duty to report). b. Lawyer's obligation if there's a mistake of fact the other lawyer doesn't pick up. 2. Hypo: Agreement about how to settle. Lawyer sends copy for you to sign but left out article favorable to his client. a. 4.1(a) not a misrepresentation, deceit or dishonesty (Prof. Should be construed narrowly to mean same as fraud, etc.). MD opinion agreed. However, under 4.1(b) duty to explain. Must explain to client that you might not be able to count on it being enforced. Client's choice. b. ABA opinion it’s a violation of 4.1(a) & 1.2(d) c. It's a different question if you have to present the settlement to the court for approval. Would be making a misrepresentation to court under 4.1(a) & 3.3(a)(1) 3. Obligations to court in Negotiated settlement a. Doesn't tell defendant or court, client was dead. Can lawyer going into court & getting settlement is lawyer making a misrepresentation? Yes. 1) NJ variation to 3.3 adds obligation lawyer to inform court when lawyer knows tribunal might be misled. If judge asks prosecutor does defendant have any other convictions & prosecutor says no, even though defendant doesn't have other convictions. Defendant's lawyer doesn't have an obligation to correct. Control of Quality: Reducing Likelihood of Professional Failure A. How do you prevent people from being in position to fail to adequately represent a client? 1. Character Inquires a. Suppose to make sure attorneys of good moral character. b. At times has been used to keep out certain groups 2. Unauthorized practice of law a. Sanctions, regulatory structure, when someone hasn't passed bar, etc. 1) Most states have criminal statutes regarding unauthorized practice of the law or rendering legal service w/out being admitted to the bar. Applies to out of state lawyers and those that are not. a) Criminal statutes

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b) Could be disciplined by bar lawyer belongs to c) K for fee isn't enforceable. Whole K is unenforceable. 2) Out of state lawyers- might be ethical violation. Rule 5.5 disciplined in state where lawyer is member of the bar. 3) Fee forfeiture- fee cannot be collected b/c lawyer is violating statute so it's an illegal K and unenforceable. (out of state lawyers) b. What is unauthorized practice 1) Generally definition of practicing law means rendering legal services. 2) Appearing before court. (Out of State can apply for the occasion to appear before the court) 3) When you give advice then the question of what is unauthorized practice or rendering of legal services becomes much more of a gray area. a) Focus on contacts to see if they are enough for "rendering legal services" or "unauthorized practice". i. Only thing out of state lawyer did was speak on phone reported status of case. NY held that wasn't practice of law. Just giving advice on a proceeding taking place outside of state not rendering legal services. However, being in state giving advice on state law is a proceeding taking place in state is practicing law. ii. Matter of public policy we want people in state to get information regarding foreign jurisdiction. iii. When someone out of state is talking to someone in state and discussion is practice of law, can you say it doesn't take place in the state b/c it originated out of state? - As long as person remains outside state there is no contact with state (Ca. Court) and cannot be practice of law in the state. - A blanket rule like this seems to go too far. - If advice comes into state doesn't matter from where. It is the unauthorized practice of law (complete opposite of Ca.) b) Arguments for these statutes are that lawyer's are competent. c) Guy in AZ disbarred. Creates web site offering legal advice. How do you discipline for unauthorized practice in another state? d) Exclusively employed by business. Do you have to be member of bar to render legal services? i. Some states have explicit exception ii. Other states take bar. It is highly unlikely there will be discipline. iii. Maybe it's an implied exception.

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XIII.

e) Law school grad waiting for bar results can you interact w/ client? (will report back to partner on conversation) Yes, but you cannot practice law. You could write memos, do research; sit in on meetings but cannot render legal services to client. f) Disbarred attorney has lots of clients, firm says you work for us as associate preparing memos & we'll represent your client. i. Can you hire a disbarred attorney? Yes. ii. The firm taking over clients is more of a problem b/c disbarred lawyer will still be talking to clients. Some states say firms cannot hire disbarred attorney and represent the clients of that attorney when disbarred. B. Transient Lawyers and Multi jurisdictional Firms 1. Services other than Litigation a. Non-lawyers: What is the practice of law? Filling out forms for legal purpose is practice of lawyer b/c it's a question of interpreting facts in context of legal document. Just supplying forms isn't practice of law. b. Sometimes legislature passes law that permits people to do what might be considered the practice of law. Legislature cannot determine who can engage in the practice of law b/c it infringes on court's ability to regulate who can practice. 2. Multi jurisdictional firm a. 7.5(b) answers can attorney not licensed to practice in jurisdiction. C. Supervisory responsibilities 1. 5.1(a) partners have obligation to make sure lawyers in firm conform to ethics rules. 2. 5.1(b) must make reasonable efforts to make sure others comply. 3. 5.1(c) vicarious liability D. Specialization 1. 7.4 2. If you do not have certification you cannot say you are a specialist. You can say: practice is limited to; just list areas of practice; emphasis on; concentrating on. 3. There's a difference between Pa. 7.4 and Model Rule 7.4. Pa. is an absolute ban on lawyer stating he's a specialist. Model Rule lawyer can say he's a specialist as long as he doesn't say he's been recognized or certified as a specialist. Saying you’re a specialist is okay under model rule but not okay under Pa. Control of Quality: Remedies for Professional Failure (bad things that happen to lawyers) A. Malpractice – a specialized negligence action. 1. Liability to Clients 2. Elements of malpractice a. Duty 1) When for legal advice got it, there's a duty, even if on charge. 2) When potential client goes to lawyer, there's a duty of care and confidentiality (which can trigger conflict rules)

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3) Can there be civil liability if someone asks advice at a cocktail party? What would you say? 1) Call my office (this is safest). If you do say something you become worried there's a duty of care issue. If you actually advise it could easily be a duty of care. 4) To whom does duty run? a) Actual clients express or implied (based on the facts). b) Potential clients and c) Client equivalent i. Third party duty of care runs to third party, so third party can sue for malpractice. (Classic example is will drafting). ii. Where purpose of services is to benefit third party, third party can sue for malpractice (a lot of authority) iii. Other courts say there is no privity iv. Cannot apply client equivalent if it will interfere with lawyer's relationship with client d) Lawyer owes no obligation to child of client. Exception is the child abuse statute. e) If lawyer gives client opinion on certain matter & knows client will use it to persuade another person the lawyer owes that person (non-client) a duty of care. b. breach of duty of care 1) Standard of care that of ordinary prudent attorney as measured by whatever the relative community is. 2) By saying I don't think you have a case but we'll get back to you but you should know there is a 2 year statute of limitations and you should fell free to see someone else. There's a breach of duty b/c left it open (Becker) 3) If you give legal advise you must inform yourself. Do you have to check out everything? You can refuse to take case but once you give advice have a duty of due care. 4) How do you prove breach? Need expert to say whether or not a prudent attorney would know even if you think you don't need an expert it doesn't hurt? 5) If conduct violates ethics rule is that per se negligence? a) evidence of violation of ethics rule is evidence of departure from ordinary care but not per se negligence (merely admissible) c. breach has to be proximate cause of damages 1) In majority of states Plaintiff has to prove plaintiff could have recovered but for the attorney's negligence the plaintiff would have recovered. 2) Minority of states apply substantial factor test. 3) Hypo: L drafts h will. H died will later challenged, unsuccessfully. W sues L for money in defending will, only reason for defending was attorney negligence. Attorney says it wasn't only my negligence person would have challenged anyway.

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a) Under substantial factor attorney's negligence is a substantial factor. Under but for can't prove causation. 4) In PA. As long as client voluntarily enters settlement agreement cannot sue lawyer based on public policy but can sue if lawyer fraudulently induces someone into the agreement. (Muhammad) a) This has been repudiated in every state. b) Subsequent decisions- when it comes to legal effects the client can still sue. (held Muhammad to it's facts) c) In other states negligence in settlement agreements can be basis for suit. All aspects of agreement are up for grabs 5) How do you prove you would have had a good medical malpractice case? Special verdict form. What type of evidence? Use experts including attorney that says missing statue of limitations is a breach. 6) Causation in Criminal Cases- cannot recover b/c only way plaintiff can recover in criminal malpractice case is if plaintiff is exonerated. Policy reason it was plaintiff's conduct that caused the conviction. 1 or 2 states say you have to prove you were innocent to prove malpractice. d. Damages 1) Statute of limitations on lawyers malpractice begins to run from date of discovery 2) Majority of jurisdictions decline to recognize non-economic damages (mental distress, etc.) 3) Where purpose of representation is clear that breach will cause non-economic damages then you can recover non-economic damages. 4. Vicarious Liability a. To what extent is lawyer responsible for damages committed by partner? 1) partner is liable for damages (can be sued) 2) Partnership as a unit can be sued. The entity the lawyer was working for to the extent of the partnership assets can be sued. 3) Partner is personally liable for acts of other partner in the performing of partnership business (Partnership doctrine) b. Contrast with corporation structure 1) Whether other lawyer is liable depends on law of state. Usually under corp. law shareholders aren't personally liable c. Limited liability partnership- like partnership but under state law lawyer's are personally liable for other lawyer's actions. d. An innocent lawyer can be liable for another lawyer's actions on a partnership e. When is lawyer acting for partnership? 1) Overcharging client, client sued partners individually. Billing is part of partnership and for lack of supervision.

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2) Lawyer who was both chairman & counsel was acting as lawyer when making decision so other partners are responsible. 3) Lawyer is out on his own and defrauds some person b/c he was acting as individual other partners aren't responsible. 5. Fiduciary duty/ duty of loyalty- The duty of loyalty underlies conflict rules but there is no specific loyalty rule. If lawyer breaches loyalty duty to client, client can recover. a. Owe a fiduciary duty/duty of loyalty to client not to use clients information to lawyer's benefit and clients detriment. b. Fewer cases using the claim of breach of duty of loyalty. c. Can recover for damages including mental distress damages. (Some courts don't allow for mental distress damages whether under breach of loyalty or duty of care) d. Lawyer has fiduciary duty not to use client information to clients disadvantage. (malpractice suit can be brought) e. Causation requirements are eased if lawyer breaches duty of loyalty (i.e. conflict situation) B. Beyond Malpractice: Other grounds for Attorney Liability to clients and Third Parties (theories where lawyer can be responsible) 1. Restatement: lawyer invites non-client to rely on lawyer's opinion (really negligence theory) 2. Lawyer can be liable for fraud. False representation to other side (no defense of "I'm acting for my client") 3. If lawyer represents fiduciary who's acting inconsistently with best interest of beneficiary. Lawyer can be liable 4. Engaged in business of collecting for someone else subject to fair debt collection act. Lawyer's can be a debt collector under the act. 5. Not permitted under federal fair credit reporting act to get information for settlement. Civil liability. 6. Consumer protection Act litigation (permits 3x damages & attorney's fee) a. Texas- prohibits "unconscionable conduct" lawyer let statute of limitation run but told client he was working hard. All you have to prove is what lawyer said that it is deceitful and unconscionable under the circumstances. 7. South Carolina warranty theory- made promise to get client. Client relied and you didn't come through C. Discipline 1. Sanctions (p753-55) a. Disbarment- generally refers to indefinite or permanent exclusion from the bar. b. Suspension refers to the less harsh sanction of allowing a lawyer to continue as a member of the bar, although the right to practice is suspended for a period of time. c. Censure (public reprimand) 2. Dislawful unwarranted conduct

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a. 1.15 cannot commingle property. Treated as very serious offense. In some states disbarment is almost automatic. b. In re Austern- represents client (developer) purchasers don't trust developer so they want money they paid in an escrow account after closing. Client suppose to write check for escrow and gives to lawyer (check is bad) lawyer completes closing. Month later client gives good check & it's put in the account. Disciplined for 2 reasons. 2.1(d) assisting client in criminal/fraudulent conduct. 8.4(c) engaging in deceit, dishonesty, fraud or misrepresentation. c. 8.4(c) applies to what does in course of own practice but also applies to lawyer's business life (not in course of acting as lawyer) d. Inflating bills e. Submitting false expenses f. Tape recording conservations but have consent or it is dishonest (ABA) 1) What if you tell client to tape & it is not in violation of state law? If not lawyer's conversation it's okay. 2) Va. Says it's unlawful b/c it is still deceit (Prof. Has problem finding omissions to be violations) 3. Neglect for basis of discipline a. 1.1 competence b. 1.3 diligence c. Lawyer's private life- things done in private life can be subject to disciplinary action. Some courts have held spousal abuse as basis for discipline. Some courts hold failure to pay child support is subject to discipline under 8.4. 4. Lawyer's private life- things that the lawyer does in private life can be the subjects of disciplinary actions. Spousal abuse can be a crime that reflects adversely on the lawyer's fitness to practice law. One state has failure to pay child support as a basis for discipline. Some states have the lawyer losing a license this is different, b/c it is part of the child support statute. 4. Racist and Sexist conduct a. Hypo: lawyer is disciplined under language that is tougher than the Model Rules. Model code says that a lawyer cannot engage in discourteous or degrading conduct to a tribunal (p779). The mode Rules say that you can't engage in conduct disrupting to a tribunal, 8.4. A lawyer cannot harass another 4.4 1) For racist or sexist speech, the Model Rules are not very protective. 2) Can't take action to merely harass or injure another 4.4. 3) 3.5(c) Can't do anything to disrupt a tribunal. 4) Model rules don't provide a real solid basis for taking action against an attorney for racist and sexist conduct. 3.5(c)- unlawful to engage in conduct intended to disrupt a tribunal. The model code said conduct that was degrading to a tribunal. The mode

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code's broad catchall no longer exists. 4.4 – can't take an action to merely harass or injure someone. Pa has essentially gutted that. 5) Should there be a rule-prohibiting lawyer from engaging in sexist, racist conduct? i.e like judicial rules Cannon 2C, Cannon 3B5(judge shall not manifest prejudice or bias), Cannon 3B6(judge shall not manifest prejudice or bias). b. Model code tougher c. A lot of states have adopted rules regarding this type of conduct. Proposed but not enacted variations to 8.4 1) How narrowly do you draft the activities covered? a) Can't engage in discriminatory act against the law or harass (Narrow) b) Knowingly manifest in course of representing client that is bias (Middle)(ABA) c) CO- prohibits lawyer's appealing to bias based on prohibited grounds. Not limited to what lawyer does in his job. (Broadest) 2) What do you include in category? a) Some include disabilities, some don't b) Some include creed, some don't. c) Some include socio-economic interest, some don't. 5. Reporting requirement 8.3(a) (mandatory) a. Exception 8.3(c) doesn't require disclosure of confidential information. b. May have duty to report other attorney's doing drugs. c. Ethics 2000 came out with version of 8.3(a) that makes reporting permissive rather then mandatory. d. 5.2(b) Responsibilities of a subordinate lawyer 6. Constitutional protection in criminal cases a. Strictland- whether counsel's assistance was reasonable in he circumstances. b. State of presumption counsel acted reasonably. c. If counsel didn't act reasonably there must be an error XIV. Free Speech Right for Lawyers A. Public Comment About Pending Cases 1. 3.6 deals with what statement lawyer's can publicly make about a case. 2. Comment 5 lists material that can prejudice the matter (can't say) 3. Where lawyers are involved in litigation courts have greater leeway to control what lawyer says. 4. 3.6(c) (not law in Pa.) protection 5. Judges can issue gag orders greater curtailment of free speech rights. XV. Marketing legal services A. Advertising- communication directed to a population as a whole 1. A legal advertising is commercial speech(contemplates a commercial transaction) and entitled to limited protection under the 1st amendment but subject to government regulation (Bates) two prong test:

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a. If deceptive not protected b. Not deceptive regulation by government 1) Substantial governmental interest 2) Must advance government interest 3) Could interest be achieved by narrower statute. 2. Bates only dealt with print media. 3. States have more regulations aimed at electronic mean. Is it subject to less protection? No people assume Bates test applies to electronic media and Internet advertising. 4. Rule 7.1 prohibits deceptive communication. a. Pa. version says advertising that creates unjustified expectation of what client might get previous damage, awards, and lawyer's record in obtaining positive results, client endorsements. Cannot contain subjective claims that cannot be verified. b. P353 lists variation talks about Iowa. "Presented in a dignified manner" hard to see how it's justified at preventing deception, it's not. Justified under substantial state interest in protecting reputation of the bar. 5. Internet context- web page is an advertisement subject to Bates test a. Is domain name subject to same rules as letterhead rule (7.5)? No b/c it's just an address but subject to deceptiveness it can't be "best lawyers" or something like it. b. What if tags are deceptive, i.e. leads person to your site. Some people suggest you can be liable. c. If you link to other sites to what extent are you responsible for the deceptiveness of pages you link to. d. Record keeping 7.2(b) record keeping how does it apply to Internet. e. Multistate context of internet- look at where information originates from (Prof. Doesn't make sense have to look at what it says and where its going) f. To what extent are you subject to other states advertising law? No specific model rule but 8.4 talks about choice of law rule (don't need to know). g. Case p 903 advertising even though targeted at specific people was protected under the first amendment and the ad was verifiable. Targeted ads are okay when non-deceptive. B. Solicitation- approaching specific individuals about legal services 1. In person contact 2. Rule 7.2(a) solicit by in person or live telephone contact. Absolute prohibition when lawyer has no family or prior professional relationship when a significant motive is lawyer's pecuniary gain. a. What's harm with live contact? To protect client from lawyer's interest and pressures. b. Public interest litigation isn't for a pecuniary gain.

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c. Rule 7.3(b) a lawyer shall not solicit if (1) client makes clear doesn't want solicitation or (2) solicitation involves coercion, duress or harassment d. Pa. adds lawyer knows/reasonably should know physical or mental state of person won't be able to reasonably pick an attorney. Don't have 7.3(c). e. If handing out pamphlets at a church function it is in person and can't be done but lawyer could mail the pamphlets or just leave them on the counter.


				
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